See also: Please read this post if your actual expatriation date is before 2004 (Updated)
The blog post on ex post facto stirred up a flurry of e-mails between members of the society. It switched on a light bulb for some that the State Department and the IRS were trying to pull a fast one, and that those who were following rules at the time of their relinquishment were not required to follow the new rules.
According to the instructions for 8854, and USC 26 section 877, the date of expatriation is as follows (US Code at Cornell University):
(4)Relinquishment of citizenship
A citizen shall be treated as relinquishing his United States citizenship on the earliest of—
(A) the date the individual renounces his United States nationality before a diplomatic or consular officer of the United States pursuant to paragraph (5) of section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481(a)(5)),
(B) the date the individual furnishes to the United States Department of State a signed statement of voluntary relinquishment of United States nationality confirming the performance of an act of expatriation specified in paragraph (1), (2), (3), or (4) of section 349(a) of the Immigration and Nationality Act (8 U.S.C.1481(a)(1)–(4)),
(C) the date the United States Department of State issues to the individual a certificate of loss of nationality, or
(D) the date a court of the United States cancels a naturalized citizen’s certificate of naturalization.
Subparagraph (A) or (B) shall not apply to any individual unless the renunciation or voluntary relinquishment is subsequently approved by the issuance to the individual of a certificate of loss of nationality by the United States Department of State.
Now this is all well and good, namely with regard to item (B) above, which states that the expatriation date is the day that a person informs the State Department. But the question remains when did this law actually come into effect; for it cannot be applied ex post facto to those who committed an expatriating act before that date. One of the members of the Isaac Brock Society tracked it down: The answer is that if you relinquished your US citizenship before February 6, 1995, you were not required to have informed the State Department. My correspondent thus wrote to me (reproduced with permission):
As it turns out, the timeline of important amendments and changes to Section 877 of the Internal Revenue Code (26 USC) dealing with Loss of Nationality begins much earlier than the June 2, 2004 amendment which introduced the infamous IRS Form 8854. For our purposes (meaning those who committed relinquishing acts in the 60’s, 70’s and early 80’s), the truly significant date vis-a-vis the IRS is actually February 6, 1994, as referenced in the 1996 Amendment – the most important one for us to understand, I believe. In a nutshell, those of us who committed qualifying relinquishing acts before February 6, 1994 are absolutely NOT subject to amendments made after this date under the terms of a “special rule”. As a result, it appears that we have no requirement to provide any IRS-specific forms or statements to the IRS, including form 8854! It would appear that a simple notification letter from us (notarized and duplicated, I would suggest) indicating that the Department of State has processed and issued a CLN showing a relinquishment date prior to February 6, 1994 should suffice. This seems to be the means by which a back-dated CLN issued by State could be used to provide sufficient information to the IRS to not require any further action. Of course, while State eventually provides its own direct notification to the IRS, I think it is important that we provide a “good faith” letter as well.
I have found some important references to this date, within FindLaw notes and in the official IRS Code. I am providing links and screen shots to relevant portions of these references, as follows:
1. FindLaw notes for 1996 Amendment:
http://codes.lp.findlaw.com/uscode/26/A/1/N/II/A/877/notes
[I have bolded the most relevant text]
EFFECTIVE DATE OF 1996 AMENDMENT
Section 511(g) of Pub. L. 104-191 provided that:
“(1) In general. – The amendments made by this section [amending this section and sections 2107 and 2501 of this title] shall apply to –
“(A) individuals losing United States citizenship (within the meaning of section 877 of the Internal Revenue Code of 1986) on or after February 6, 1995, and “(B) long-term residents of the United States with respect to whom an event described in subparagraph (A) or (B) of section 877(e)(1) of such Code occurs on or after February 6, 1995. “(2) Ruling requests. – In no event shall the 1-year period referred to in section 877(c)(1)(B) of such Code, as amended by this section, expire before the date which is 90 days after the date of the enactment of this Act [Aug. 21, 1996].
“(3) Special rule. –
“(A) In general. – In the case of an individual who performed an act of expatriation specified in paragraph (1), (2), (3), or (4) of section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481(a)(1)-(4)) before February 6, 1995, but who did not, on or before such date, furnish to the United States Department of State a signed statement of voluntary relinquishment of United States nationality confirming the performance of such act, the amendments made by this section and section 512 [enacting section 6039F of this title] shall apply to such individual except that the 10-year period described in section 877(a) of such Code shall not expire before the end of the 10-year period beginning on the date such statement is so furnished.
“(B) Exception. – Subparagraph (A) shall not apply if the individual establishes to the satisfaction of the Secretary of the Treasury that such loss of United States citizenship occurred before February 6, 1994.”
Amendment by Pub. L. 104-188 applicable to taxable years beginning after Dec. 31, 1999, with retention of certain transition rules, see section 1401(c) of Pub. L. 104-188, set out as a note under section 402 of this title.
2. Another FindLaw reference:
The FindLaw reference is here (though the majority of the article is out-of-date as it was written in 1999):
http://library.findlaw.com/1999/Jun/1/129807.html
QUOTE: A special transition rule applies to any U.S. citizen who committed an expatriation act before February 6, 1995 and who did not submit such a statement.
3. Extracts from IRS Code Title 26, Section 6039G – Information on individuals losing United States citizenship:
If I would have known this I wouldnt have submitted to a DHS secondary interrogation in San Francisco airport where they in no uncertain terms told me as a US born Canadian citizen I could not enter the US without a US passport. To make a long story short, I got the US passport a year and a half ago after living in Canada for 44 years (immigrating at 10 years old) and using my Cdn passport for 34 years. I applied for the US passport in Mexico city (now residing more or less there) and after some research read that the US authorities are required to question my intent in acquiring Cdn citizenship way back when. They never did. My question is this an arguable? And may I return to this law you post where I am not a US citizen even though I hold a US passport? What should I do now to advance this thesis?
@ msd
I believe we had one report here of a person who was bullied into obtaining a US passport but the consulate (Halifax?) recognized the situation for what it was and that person obtained a back-dated CLN as a result. With a back-dated CLN there is no tax filing required. I wish I could remember more details … perhaps someone else does?
Action is exactly what I need to do. I cannot dig myself deeper into this ruinous hole. Full stop, and reverse. My case: US born, Canadian citizen for 32 years, immigrated in 1967 at 10 years old with my parents. Traveled exclusively on Cdn passport, never used US citizenship. A year and a half ago was told in San Fran airport I must get a US passport. Got one at the US Embassy in Mexico. Now I heard they were required to ask me for my intent when I acquired Cdn citizenship — they didnt. Therefore, the course I am formulating to take is this: first, surrender my US passport where I got it based on their error in not asking my original intent at acquiring Cdn citizenship; two, advise them that under the such and such code of 1994 (According to the instructions for 8854, and USC 26 section 877, and the 1996 AMENDMENT Section 511(g) of Pub. L. 104-191), I intended to relinquish my US citizenship; three, ask and insist from Canada a Canadian passport with a new chip or a reprogrammed chip that doesnt flag US authorities to my case. And lastly, enter the US as I always have on my Cdn passport loaded with all the information I have found on this site. If they arrest me, I will demand consular protection from the Canadian Embassy until justice prevails. What else can I do? Avoid the US? Not logistically feasible at this time. Pay up? It would ruin me. However, I am getting the point that the fight needs to brought to the US where the injustice can be exposed. Courageous? I hope not.
Thank you EM. I would love to read the thread you indicate. What is a CLN?
@msd
A CLN is a Certificate of Loss of Nationality. It can be obtained either through ‘relinquishment’ of U.S. citizenship ie performing an expatriating act voluntarily and with the ‘intent’ to relinquish said U.S. citizenship. It can also be obtained by ‘renounding’ U.S. citizenship at any U.S. consulate or Embassy. There is alot of information on the IBS site explaining the differences.
I don’t wish to sound discouraging, but your idea as stated above, in my opinion would not work. I believe there might be a chance that a consulate would allow the CLN based on ‘relinquishment’, if you can explain that you only obtained the U.S. passport under duress and that you did in fact, always believed, since 1980, that you were no longer a U.S. citizen. Certainly worth a try as you under that case you would not have the filing obligations.
Certificate of Loss of Nationality.
I remember reading the about the Halifax person who got their CLN although they’d used a US passport in this type of cirucmstance (he was told to do it and that’s the only reason he did), but I can’t remember on which thread.
The determination of loss of nationality is based on the balance of probabilities. No one factor is determinative. The key is your intent is getting the passport. It was because you were told to, intimidated into doing it. not because you wanted to reclaim US citizenship.
Here’s an excerpt from David’s report (in the Vancouver section of the Consulate Report Directory) which he posted upon receipt of his CLN in December:
“The only difficulty was
that I had used my U.S. passport to enter the States after my naturalization in
Canada. I explained to the consular officer that I did this only because I
believed that I was required by U.S. law to do so until I received my CLN. He
promised to seek a ruling from Washington, hopefully before my second
appointment, on whether I could simply report my relinquishment, or would need
to renounce. The key question was my not my actual use of the U.S. passport,
but my intent in using the passport (in other words, was I claiming the right
as a U.S. citizen to enter the States, or was I simply trying to comply with
the law as I understood it).
“I went to the second interview ready to renounce if necessary, but the officer had in the meantime received word from Washington that my use of the U.S. passport as described above would not interfere with simply reporting the relinquishment which occurred when I became a Canadian citizen.”
thx pacifica, this looks like a winner…
@ tiger
Do you remember the details of the happy back-dated CLN? It might not have been a Brocker — perhaps one of his brothers? My memory is failing me here. I think it would be worth a try for msd but it would not work in Vancouver or Ottawa I’m sure.
@ pacifica
Our comments crossed … I think you found the happy CLN. Thank you.
Not work in Vancouver? Why not? That’s my Cdn city, for christ sakes. However, I might do it from a “friend over the years” I have at the Cdn Embassy in Mx City….
I believe the Halifax one was Baird’s brother.
And get this — in my above post, the person who reported having used a US passport for that reason was at Vancouver! Apparently the Vancouver vice consul wasn’t sure, so he contacted DC for guidance, and DC said it’s not a problem.
“Not work in Vancouver? Why not?”
Vancouver’s very picky about paperwork and going strictly (super-strictly) by the book.
But, as you see, they did go forward with the backdated CLN after receiving the okay from Washington.
@ msd
Some people have had problems with seeking “reason” at the Vancouver and Ottawa consulates. I’m thinking particularly of tiger’s turmoil.
thx Em and pacifica, you are giving me much needed hope that there is a way out of this. Also, I can advise my 3 sisters. The thread you posted is long so it will be awhile to get through it,,, and I am assuming tiger’s case is in there? I would esp like to get his specific views on Van…
Oh and tiger commented also. Thank you as well…
@ msd
Tiger’s case involved what should have been a slam dunk relinquishment but Vancouver gave HER grief about the “quality” of her birth certificate and marriage certificate. She is now awaiting a second appointment in Vancouver. Hopefully with all the documentation she has submitted the second appointment (it should only be ONE for a relinquishment) will all go well. It’s important to note that this is a relinquishment for tiger which should produce a back-dated CLN for her and NOT a renunciation.
msd – Vancouver is an opaque oddity among US consulates in Canada, rivaled worldwide (as far as Brock can see) only by the unspeakabilities of the embassy in Ottawa. Phil Hodgen was onto the Vancouver case as long ago as 8 November 2011. The Vancouver consulate (just checked) shows zero openings for a first appointment in 2013 – besides which they so far routinely require a second appointment for both renouncers and relinquishers. They appear to be chock full to their gills for the 14 possible days in January, 12 in February, 8 in March, 7 in April, 6 in May, 4 in June … with nothing open beyond that. Does this start to sound like a countdown to blast-you-away? Maybe in self-defense! In late 2012 someone reported to Brock that Vancouver consulate said it was facing a “wave.”
Okay I was confused abit. We are talking about getting a CLN from the US consulate or US Embassy outside the States? For some reason I thought it was a document that Canada produced. Oh shit!, that means I would have to be interrogated by Americans to get a CLN? This is a nightmare. I guess the Cdn Embassy in Mex wont do,,, while the US Embassy here is a friggin fascist fortress. Shit! Maybe I should go to the US consulate in Halifax? In Merida? Is there a more congenial consulate closer to the west coast of Canada?
@ msd
The Calgary consulate has a fairly good reputation … so far. And yes, this can ONLY be done at a US consulate. Read a few of the consulate reports — see pacifica’s comment at 3.09am.
@msd
No worries. They’re not confrontational (except Ottawa and we recently heard that they may have cleaned up their act — someone posted at Maple Sandbox that their friend relinquished there last week and it went smoothly with none of the attitude and obstruction that it’s noted for) It’s a pretty straightforward procedure and pretty much everywhere else personnel are pleasant and professional. Even Vancouver, people find the people pleasant, but they’re over-picky about documents (ridiculously so in Tiger’s case) and giving expatriation a low priroirty so their wait times are much too long and much longer than the other consulates.
Basically the vice consul needs to be sure that your relinquishment was voluntary, intentional and that your post-relinquishment behaviour has been consistent with having relinquished. The latter is based on the balance of probabilities.
Before going to the consulate, you will have filled out a 4 page questionnaire, form 4079, “Request for Determination of Loss of Nationality.” You’ll hand that in when you’re at the consulate. The vice consul will look it over before meeting with you. Generally it speaks for itself, so they don’t have any questions. II s/he has a question about one of your answers, they’ll ask you. for clarification. Generally they don’t. They’re not out to give you a hard time, except for one consulate we know of
I applied for my CLN, based on relinquishment, at Toronto. 5-10 minutes with the clerk, 45 minutes waiting, 10 minutes with the consul, all staffers very pleasant.
People’s consulate meeting stories are in the Consulate Report Directory thread, then click on the link to the Directory itself. It’s currently a 105 page document, arranged by consulate. As well as people’s stories, it has on page 2 (or 3) links to the documents used, such as the 4079 questionnaire. People’s experiences should allay your fears and also help you prepare efficiently.
@msd,
As has been mentioned above, my request for a back-dated CLN, should have been a ‘slam dunk’ – I became a Canadian at a time when the Canadian oath required one to also ‘renounce’ their prior allegiance; in the 40+ years since becoming a Canadian absolutely NOTHING has been done to negate that relinquishment ie – no U.S. passport, no voting in U.S. elections, no filing of tax forms, no registration of children as Americans etc.
My first appointment with the VANCOUVER consulate was in September, 2012. Any other consulate and I would either have my CLN by now or would be receiving it soon. But here in Vancouver, I await another appointment and then who knows how long I wait for the CLN.
We have been told that things will improve here in Vancouver. And certainly there has been the ‘happy story’ of the individual here who was able to obtain his CLN, although he had traveled on a U.S. passport. However, given what I know now, I would suggest attending the meeting in another consulate. Also, as usx posted above, there are NO appointments showing on the Vancouver calendar through the end of June – Calgary is offering many appointments.
Y’know, there are enough horror stories with the kind of intimidation MSD has suffered that I can see scope for some kind of class action suit here. It certainly has possibilities for a good story. I wonder just how many people have been unnecessarily pushed into getting a US passport by an aggressive border agent. If you have any hopes of relinquishing, this is about the worst act you can perform (voting being the other one).
I’m going to talk to a couple of immigration lawyers and see if there’s a good body of evidence here. Meanwhile, it’s good that IBS is tracking this stuff, and hopefully more and more victims like MSD will come forward with their stories.
DW
Arrow, have a look at the following comment:
Baird68
Submitted on 2012/12/17 at 10:53 pm
Hello, Everyone
I just got a call from my brother in Halifax who just received his CLN. He gave me permission to share his experiences with you. A few years ago, he was threatened by a U.S. Border officer at Shannon Airport in Ireland to agree to get a U.S. passport or be detained from boarding his flight to New York City connecting to Halifax. His explanation that he had been a child when he came to Canada and that he was a Canadian citizen with no ties to the United States did not faze the officer. Reluctantly, he applied for and obtained a U.S. passport upon returning to Canada. Consequently, when he handed his completed forms to relinquish his citizenship on October 18, 2012 at the U.S. consulate in Halifax, he also handed over that passport with the explanation of the Shannon incident. The consul apologized to for the “inappropriate and unacceptable behaviour” of the U.S. border officer in Shannon. He said that the possession of a U.S. passport was evidence of his participation in being American. Therefore it would be necessary to pay $450 even though, in my brother’s case, it clearly showed he relinquished his U.S. citizenship when he became a Canadian citizen in December 1968. That being said, the papers were accepted at the first meeting and he was called by the consulate to pick up his CLN less than two months later! The CLN states he relinquished his U.S. citizenship on the date he became a Canadian citizen.
Unlike me, my brother in Halifax neither obtained a SSN nor filed taxes for the past five years. His process to freedom was smooth because I shared with him what I learned from the Issac Brock site and others like it that support U.S born persons. We have another brother who unfortunately fell into the OVDI trap earlier this year and paid dearly for it.
I can’t thank you all enough for the support you are providing every day.
@ Petros
That’s the comment I was trying to remember (the happy back-dated CLN). Well done! How do you search Brock to retrieve things like that when your memory is as bad as mine? I usually end up going to StartPage but that doesn’t always cough up what I’m looking for.
Okay I have filled the two forms indicated (a notification of relinquishment prior to 1995), form 4079 and 4081 plus a more elaborate explanation of being a non practicing US dual. I’ll need to get the dates exactly right, I guess. Months are a bugger to remember. And my employment/service with various levels of Cdn govt is by memory and the fields only allow one date (not a range of dates, as asked). I loosely said the oath was “allegiance to Queen Lizzy and all her heirs”, though I could try to get what it exactly was in 1980. I have read some people have found it in an archive somewhere (is there a link to that?). I’ll make an appointment for Mexico City or maybe Merida (both are about 14 hours away by bus). The “consequences” form seems to require me to notify IRS and the “Directory” indicates that the backdated CLN to 1980 wont be what the IRS uses (only the date when I notify the US consulate). I’ll have to read the exact legalities of that prior to 2004 or 1995, I guess. I am assuming this will not cost anything except for travel expenses. I also assume I will be surrendering my US passport and several months later will receive a CLN. Will I be able to travel into or through the US in the meantime?
I’m still wondering about this US passport I have. The other Canadian who was in a similar predicament, being “bullied” at the Irish airport to get his US passport but nevertheless getting his backdated CLN at the US consulate in Halifax, even with an apology of his treatment at the airport. I have exactly the same experience except it was at the Dept of Homeland Security offices in the SF airport.
So anything else I should be concerned about?
It seems straight forward and my confidence is high. Wish me luck!
Thanks to @all for their directions and assurances. I was lost at what to do, but now I have a plan…