In this conversation, Petros maintains that there are certain actions of US citizens that the State Department gages as determinative of whether a person’s intention is to relinquish their US citizenship or no. These go beyond the stated intention of the person, based upon the concept that actions speak louder than words.
NB: Please be sure also to read a very comment at the end of this post.
There are quite a number of people who thought they relinquished their citizenship years ago when they became a Canadian citizen, served in the Canadian military or in a government post. But now the border guards, not the brightest cookies at the best of times, are telling them that because they were born in the US, they must now travel to the US on a US passport, pay their taxes in the US, and submit FBAR reports. Today I stumbled upon a website that shows that the State Department is now applying two different standards at the same time. First, the intent to relinquish can be established–by the State Department against your will–if you do some of the following after committing a relinquishing act while taking on a policy level position in a foreign government:
(1) Travelled to US on a foreign passport.
(2) Stopped paying taxes
(3) Made a public denial of the intent to retain citizenship
Now the page I am about to cite in full (emphasis mine) is about people who take high level positions in a foreign government, but I think that it can be generalized to all people who have commited a relinquishing act. The above acts show intent to lose citizenship, not just for high level officials, but for everyone who has committed a potentially relinquishing act. The moral of the story is this: If you have relinquished years ago, do not under any circumstance file an FBAR, or a 1040, or obtain a US passport. Such a behavior would indicate an intent to retain citizenship! Petros
Advice About Possible Loss of U.S. Citizenship and Seeking Public Office in a Foreign State
The Department of State is the U.S. government agency responsible for determining whether a person located outside the United States is a U.S. citizen or national. A U.S. citizen who assumes foreign public office may come within the loss of nationality statute, which is Section 349 of the Immigration and Nationality Act of 1952 (INA), as amended, (8 U.S.C. 1481) or other legal provisions as discussed below.
Currently, there is no general prohibition on U.S. citizens’ running for an elected office in a foreign government. Under Article 1, section 9, clause 8 of the U.S. Constitution, however, U.S. federal government officers may not accept foreign government employment without the consent of Congress. See 22 CFR Part 3a regarding acceptance of employment from foreign governments by members of the uniformed services.
With respect to loss of nationality, 349(a)(4) of the Immigration and Nationality Act (INA), as amended, is the applicable section of law. Pursuant to 349(a)(4), accepting, serving in, or performing duties in a foreign government is a potentially expatriating act if the person is a national of that country or takes an oath of allegiance in connection with the position. Thus, the threshold question is whether the person’s actions fall within the scope of this provision. Information used to make this determination may include official confirmation from the foreign government about the person’s nationality, and whether an oath of allegiance is required.
In addition, the prefatory language of section 349 requires that expatriating act be performed voluntarily and “with the intention of relinquishing U.S. nationality.” Thus, if it is determined that the person’s action falls within the purview of 349(a)(4) INA, an adjudication of the person’s intent must be made.
The Department has a uniform administrative standard of evidence based on the premise that U.S. citizens intend to retain U.S. citizenship when they obtain naturalization in a foreign state, subscribe to routine declarations of allegiance to a foreign state, serve in the military forces of a foreign state not engaged in hostilities against the United States, or accept non-policy level employment with a foreign government. This administrative premise is not applicable when an individual seeks public elected office in a foreign state or other policy-level position. In such cases, the Department of State will carefully ascertain the individual’s intent toward U.S. citizenship.
Because the Department’s administrative practice presumes that U.S. citizens employed in non-policy level positions in a foreign government do not have the requisite intent to relinquish U.S. citizenship, there are no efforts to seek out or adjudicate the citizenship of citizens who fall into this category of employment. On the other hand, because there is no administrative presumption that U.S. citizens who hold policy-level positions in foreign governments necessarily intend to retain their U.S. citizenship, efforts are made to fully adjudicate such cases to determine the individual’s intent. (Service in a country’s legislative body is considered by the Department to be a policy level position.)
In some cases, it would appear that holding a foreign office may be incompatible with maintaining U.S. citizenship (e.g. if the position necessarily entails absolute immunity from U.S. law and the powers of the office are exercised in a manner contrary to United States law), although even this situation would be examined on a case by case basis. The Department does not normally consider foreign government service alone as sufficient to sustain the burden of showing loss of U.S. citizenship by a preponderance of the evidence when the individual has explicitly expressed a contrary intent. This is particularly true when the individual continues to file U.S. tax returns, enters and leaves the U.S. on a U.S. passport (as required by law), maintains close ties in the U.S. (such as maintaining a residence in the U.S.), and takes other actions consistent with an intent to retain U.S. citizenship. Conversely, a person who publicly denied an intent to retain citizenship, and/or who exercised the authorities of a very high-level foreign office in a manner flagrantly violative of United States law or otherwise inconsistent with allegiance to the United States, stopped paying his/her taxes, traveled to the United States on a foreign passport, and abandoned any residence in the United States might be found to have intended to relinquish U.S. citizenship notwithstanding certain statements to the contrary. Therefore, the Department will consider statements, as well as inferences drawn from the person’s conduct, in determining one’s intent to remain a U.S. citizen. Intent is determined on a case-by-case basis in light of the facts and circumstances of each individual’s case. If expressed intent and conduct are consistent with a lack of intent to relinquish U.S. citizenship, the Department would generally conclude that no loss has occurred.
Petros wrote: The State Department also says that if a person renounces and then returns to live in the US, that person shows that their renunciation was without intent. So in other words, what I say is true. Intent is not just what a person says but what a person does. A potentially relinquishing act require intent. If you intended to relinquish your citizenship when you became a Canadian, therefore, do not file income taxes, FBAR, or obtain a US passport.
The U.S. Department of State has concluded that the intention to relinquish U.S. nationality required for purposes of finding loss of nationality under Section 349(a) of the INA does not exist where a renunciant plans or claims a right to continue to reside in the United States, unless the renunciant demonstrates that residence will be as an alien documented properly under U.S. law.
Unfortunately the US Embassy itself does not seem to apply this consistently. I have a friend who thought he had relinquished US nationality by becoming Canadian, and did for a time reside and work in the US after doing that BUT ONLY AFTER APPLYING FOR A RECEIVING A GREEN CARD which sure sounds to me like a demonstration his residence was “as an alien documented properly under US law.” In spite of this, his lawyer was told by a consular official in Ottawa in August that my friend is still in their eyes a US citizen and subject to US taxation (and no he never filed tax returns to the IRS after becoming a Canadian, and yes he met all the other criteria substantiating his relinquishment).
The problem with US law is that it is so convoluted, complex and contradictory that even their own bureaucrats can’t figure out what they’re supposed to do and get it right. Witness inconsistencies across consulates over something as simple as giving, or not giving, renunciants copies of their own oaths they signed in front of the consular officer as proof their renunciation or relinquishment is in process, as reported elswhere on this forum.
All the more reason never to have any dealings with the US at any level, unless you’re filthy rich and can afford to pay lawyers to keep fighting their inconsistencies and contradictions in US courts.
Our people have to be prepared in advance with proof texts to confound these idiots. If they say you have to do something, then you ask them what is the basis in law for their contention. We have the law and what is ethical on our side–the laws says that our intention is what matters, not their imperious attitudes.I’m thinking about doing a travel advisory: Warning to Canadians, do not travel to the United States without knowing what your rights are. Government officials will try to bamboozle you out of your life’s savings, but they are acting in manner inconsistent with US code.
Deckard suggested some weeks ago (private conversation) that Foreign Affairs Canada maybe ought to be posting a travel advisory to the US, for anyone who was born in the US and is going back to visit. I’m not optimistic that under John Baird’s minister-ship that’s ever going to happen, and in any case we probably would have to wait until we have firm evidence of someone being screwed over at the border for taxation reasons. But if and when the latter happens, I think a bunch of us should write to Foreign Affairs (Baird would be a waste of time) demanding a travel advisory be posted. Right now the only travel advisory for the US is “take normal travel precautions.”So far, with the spectacular exception of that gorilla in Blaine Washington months back, I haven’t heard of and certainly haven’t ever personally witnessed nastiness from the border people toward Canadians of US birth, but there probably will be a first time soon.Americans, particularly American officialdom especially in the IRS, are exceptional all right. Exceptionally arbitrary, inconsistent, convoluted, incomprehensible.At a roadside stop in upstate NY on our way back from a Thanksgiving visit with my wife’s family, I saw a sixty-something motorcycle dude with a Harley which had a “US Air Force” sticker on one fender (I think he may have been a vet) and a sticker on the other fender saying “I love my country, it’s my government I don’t trust.” We aren’t the only people on this continent who don’t trust US officialdom. So why do they keep electing politicians that perpetuate outrages like this?