The phone rang this morning. For a few minutes, my actual phone number was on the blog, by mistake, and one very quick reader, Dianne, phone me from Winterpeg. Not long ago, she learned that the United States still considers her to be an American, even though she hasn’t believed herself to be American since the age of 18. So I asked her to write up her story so that the Isaac Brock Society could help her sort out this issue. Here it is:
I was born in the USA in 1957 to two Canadian parents. My father was working on his Phd there and they returned to Canada when I was weeks old. Since then I have never lived in the US. I do not have a US passport or social security number. I have never voted in the US and do not own property there. I have lived and worked my entire life in Canada. It was my understanding when I turned 18 (in 1975) that if I did not actively seek American citizenship I would be considered only Canadian. I was shocked to hear that the IRS may consider me American. I am interested in finding our how to clarify that I am not an American citizen.
Unless the US is going to go through birth certs from every US State and waste money on “McCarthyism” style tracking you down – sleep tight. There’s a limit to this US cititzenship based taxation.
@Petros, I am afraid she is a US citizen. Unfortunately if you are born in the United States thinking that you are not a US ciizen does not make you not a US citizens or cause you to lose your US citizenship. I wonder where she obtained the information that if she did not actively pursue US citizenship she would be considered Canadian when she reached 18 years of age? Certainly under Canadian law she was considered Canadian but under US law, she is considered by the US to be an American citrizen until she formally renounces her US citizenship before a US consular official located outside of the United States.
@John and Dianne – If you have a Canadian passport that says your place of birth is U.S.A, and if FATCA requires Canadian banks and other financial institutions to report the accounts of U.S. born persons to the IRS, then I would suggest Dianne consider relinquishing her U.S. citizenship. If your passport doesn’t say born in the U.S.A, then I would carry on and not worry at all. Then, when banks start complying with FATCA, just say you were born in Canada.
I also acquired US citizenship through being born to parents completing post doctural work in the US. We moved back to Belgium shortly thereafter and we had no idea that I was a US citizen until I was 14. It is simply ridiculous to grant citizenship to somebody simply due to being born in a country whilst the parents are on a student visa. Citizenship should only be automatic if the parents were citizens, or at the very least, permanent residents. Jus solis citizenship is an abominiation and doubly so when the US variant attaches these kinds of complications to somebody with little to no connection to the US whatsoever. It is time that the US and the rest of the Americas adopt jus sanguinis citizenship: jus solis citizenship is a dinosaur and almost unheard of anywhere else in the world:
http://upload.wikimedia.org/wikipedia/commons/7/71/Jus_soli_world.png
I wish the above poster all the best and understand only all too well what it is like to be in this situation. I only hope that the US will see sense soon and change their citizenship laws to match the times.
It’s an interesting set of problems. “if I did not actively seek American citizenship I would be considered only Canadian” *is* the practical reality. She won’t be on any US database.
OTOH over time there may be issues crossing the border, given the US birthplace. She can probably ignore the whole issue, but be aware that she may be told at the border to get a US passport and/or refused admission. Does that matter? Hard to say.
‘Accidental Americans’ born here who have never done anything to assert US citizenship should ignore the issue.
@Petros
She is a US citizen no doubt. She shouldn’t panic at this point but she needs to start following the issues here and probably write a letter to her MP.
@baird68
But Canadian banks don’t collect/care about birthplace information.
@ABMOAHP
That remains to be seen. I am reasonably optimistic at the moment though. We should be hearing the latest position of the Canadian Bankers Association soon.
@ Roger, Tim: With all due respect, I think that your responses are superficial. The question of citizenship is also one of the will of the individual. Dianne is a naturalized Canadian citizen who has never wanted nor ever did anything consistent with a desire to obtain or retain United States citizenship. The requirement that she file taxes in the United States is the sort of act that caused the war of 1812. Those who were naturalized Americans were being inducted back into the British navy against their will. Surely, we are not just going to simply sit here and say, Oh I guess she’s an American and that’s that. Indeed, even just two weeks ago, the United States Border Service allowed her to cross over the border on her Canadian passport, just as she has done for the last 50 years or so. De facto the United States has treated her as a Canadian, therefore she is de jure Canadian not American. To say anything is absolute insanity. I understand that this is what the United States thinks, but this is not a unilateral decision on her part. The Universal Declaration of Human Rights gives her a choice in the matter.
I wonder Dianne, if you have any American stamps in your Canadian passport. Why all these years did the United States government treat you as a Canadian? Because, my dear friend, you are a Canadian.
You know if this US taxation gets out of control the countries of the world could stop it in its tracks – a US born citizen is listed on the second passport as being born in the country’s capitol city for example, go to the bank open an account job. How is the bank to know?
The rest of the world is “allowing” the US to get away with this. I would only be half as upset with the US and more upset with foreign governments not protecting their own citizens. Carl Levin and company must be laughing out loud that the rest of the world doesn’t just say NO.
None of this would really matter if citizenship based taxation didn’t exist, would it.
@petros, I fully understand that Dianne never wanted or realized she was a US citizen. I am not conversant with the citizenship laws of Canada, but it may well be that Canada also considers her to be a Canadian by birth. Did she actually have to go through a naturalization process to acquire Canadian citizenship
According to Wikepedia there are some 30 countries that consider a person born in that country to be citizens by birth. http://en.wikipedia.org/wiki/Jus_soliS
I note that Canada is on this list. Does Canada not automatically grant citizenship to persons born in Canada to foreign parents?
Unfortunately the citizenship and nationality laws of the different countries of the world have little uniformity but when you are in a country that considers you to be a citizen of that country you are governed by nationality laws of that country. And that includes conscription involuntarily for military service in countries in which such invountary service is obligatory. I have heard more than one story of children born in Argentina, who left their as babies, having been conscripted when they went back for the first time and were by this time of military age. I personally traveled to Argentina with a co-worker, a UK citizen in his 60s, who was refused entry because he had been born in Argentina but did not have an Argentine passport. His military status was checked, but it was determined that persons born the year he was born did not have an obligation. He was, however, deported back to Lima, Peru where he lived and had to obtain an Argentine passport from the Argentine counsulate there, before he could return to Argentina. Some countries are even more fussy about this than the US.
I did not mean for my response to be superficial. If she is not in any US data bases as a US citizen, she should try to avoid getting into any. So far I have heard no cases of US immigration turning back a Canadian citizen whose passport indicates that the person was born in the US, but there is no guarantee that this might not happen, because US law is very clear that US citizens are required to enter and leave the US using a US passport. I would hate to be a Canadian born in the US crossing into the US on the first day someone with authority in the US decreed that this law would start being enforced.
Or it might be well for her to formally renounce US citizenship. I remember so well that the FBAR law has been on the books since 1970 but it has been only recently been rigorously enforced. It was on the books when I lived in Brazil and indeed when I transferred funds from the US to purchase a house there, and when I later sold that house, I did not file FBAR reports. I had never heard of them, even though US law required that I do so. I now realize that I should have done so. But it is a little late now.
There was a time under US nationality law a person born abroad was required, to declare which country they wished to have recognize them as their citizen. But that was part of what the US Supreme Court ruled as unconstitutional. Now you have to formally renounce your US citizenship in order to no longer have US citizenship. No parent or third person can do it on your behalf; even if you are mentally incapacitated.
@bubblebustin Exactly right. If the citizenship based taxation didn’t matter, the US wouldn’t bother trying to force people like Dianne to acquiesce to their definition of who she is. Let’s suppose that Dianne was a man. And she moved to Canada, and in 1973 when she was 18 years old the United States drafted her into the army. I actually met someone who was a border baby that was drafted by the United States. He refused the call and joined the Canadian military instead. But what if this were Dianne. Would we say, Oh you have to go down to the United States and fight for them in Viet Nam. When her parents were PhD students in the United States when she was born? Give me a break. No one here in Canada would stand for that kind of crap. So why are we letting our people be harassed by the IRS. It is the same question of citizenship. It is just in one case it is military service and in the other case it is taxation. Both are acts of war (with all due respect to Mr. Mopsick–this behavior is classic act of aggression against another country).
The problem in America with the 1% leaving must be much worse than we think. What if some of these people actually fled to Canada with our high tax rates and all? They’d be sending a message. They’re not leaving because of high taxes, they’re leaving cause they think things suck down there.
@ Roger Thanks for your response. I’d like you to clarify the following lines:
Now this is where ex post facto comes in. If you can, can you elaborate when the Supreme Court made this decision and why? The point is that if the law favors the individual, that is all well and good. But a law rigidly and stupidly applied in retrospect against an individual falls under ex post facto prohibitions and is thus extremely unconstitutional and unjust by its very nature. Thus, if the US told people they were no longer citizens, and it cannot turn around today and say that they are now citizens–unless the individual wants that citizenship. To force them to be citizens today against their will just so that they can exact tribute is ex post facto.
OR, in a word (or actually two), COMMON SENSE!
@Petros,
When the US had obligatory military service, foreign citizens resident in the US were indeed subject to being drafted. During the Viet Nam war when we were living in Peru, the Peruvian Congress was considering legislation that would obligate US citizens of military age who were resident in Peru to serve in the Peruvian military. It was a retaliatory law because Peruvian men living in the US were then being drafted into the US Army, and some had been killed in action. In those days not every male Peruvian was drafted, but when the Army needed manpower, it sent trucks with soldiers out to pick up persons of military age anywhere they found them – walking on the street, at the beach, working as a clerk in a grocery store, or wherever. That was how they were selected and conscripted.
I watched that legislation very closely when it was introduced in Congress, but it was never enatcted.
By the way, a US citizen born in Argentina who goes back there and gets conscripted gets absolutely no support from the US. As you are clearly warned in US passports if you are traveling to a country which considers you to be a citizen of that country, you cannot expect any intervention on the part of US diplomats to intervene on your behalf if you are arrested or conscripted for military service. The US has no power or authority to interfere with a foreign government’s enforcement of laws with respect to those who it considers to be their citizens.
Argentina is very tough in this regard. It has only been very recently that the nationality law there has been amended to permit Argentine citzens to renounce their citzenship. And it is still not easy. It must be done before the competent official in Buenos Aries. There is no other way to do it.
As a practical matter much depends on whether Dianne has any interest in entering the US, or how comfortable she is with a very theoretical risk of being turned away at the border.
@Roger, the age 18 + citizenship issue came up today in conversation as well, and I think it is because for a while, in Canada, the person could not be a dual, they had to make a choice – within a certain time period after the age of 18? I don’t remember if it was Canada’s rule or the US.
@Petros, I have not researched this massive change in US nationality law, but I seem to recall that it was the result of a US citizen who became a naturalized Canadian citizen, but did not believe that doing this should cause him to automatically lose his US citizenship. As I recall his case went up thrlough the US court system to the Supreme Court which ruled in his favor, stating that Congress had no Constitutional authority to deprive anyone involuntarily of US citizenship. All citizenship laws that were contrary to this Supreme Court ruling were judged unconstitional and therefore null and void. That was when the concept of the requirement that a person had to formally renounce US citizenship in order for it to be effective. That was a big change.
When we lived we had a number of American friends who were Christian missionaries there. Many of them had children born in Brazil and I recall that there was often mention of when they reached 18 they had to formally chose to opt for either Brazilian or US citizenship. As I understand it that was a US law because under Brazilian law if they were born there they were Brazilian and had to use Bazilian passports to enter and leave Brazil. But opting for US citizenship, which back then most of them did, they had US passorts to enter and leave the US.
We still maintain contact with many of them as do our adult chldren. They grew up and went to school togtether in Brazil
@Roger, re; “So far I have heard no cases of US immigration turning back a Canadian citizen whose passport indicates that the person was born in the US, but there is no guarantee that this might not happen, because US law is very clear that US citizens are required to enter and leave the US using a US passport.”
I found an article “Border Crossings trip up travellers with latent tax liabilities” by E.Buscaglia and E. Martin, in ‘The Lawyers Weekly’ March 19, 2010 (I can’t attach an excerpt, but you can search the title on the web for it – and I found a copy here; Border Crossing and Tax Liabilities
it describes the problem with travelling on a Canadian passport with a US birthplace. It also goes on to touch on CLNs, and ties in the taxation issue.
Thanks for the article: “Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the U.S. to depart from or enter, or attempt to depart from or enter the U.S. unless he bears a valid U.S. passport.” 8 USC 1185(b). Thus, as I said, the border guards have de facto recognized Dianne’s Canadian citizenship by permitting her to lawfully enter and leave as a Canadian on her Canadian passport. This means she is not US, otherwise, she would be breaking the law.
@Roger
I believe the Supreme Court case you refer to was in 1980 and it resulted in the 1986 Amendment to the Immigration and Nationality Law regarding ‘voluntary and intent’ to relinquish.
I should mention that article is full of b.s.: “The WHTI may be the cause for many new U.S. citizens to begin filing U.S. tax returns.” LOL. That’s what they want. The article makes it clear that the US is trying to trap tax payers, and that is the only reason for the WHTI. But what they are going to get and what they want are not the same thing. What they are going to get is a lot fewer Snow Birds and Winter Texans. What they are going to do is not get more taxes, but to stir up resentment towards the United States that hasn’t been here in Canada since the last time they invaded Canada in the War of 1812.
@Dianne and all
I think that Dianne should read all that she can on this site but most definitely not panic. And do not start to back file income tax returns. The worse case scenario in my opinion is that Dianne might eventually need to file for a Certificate of Loss of Nationality. I do not for one minute believe there is any obligation to file American tax returns with the IRS.