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.
@Petros, I suspect that push to shove, the decision of a border immigration officer to allow a person born in the US entering the US with a Canadian passport would not constiute an official decision by the US that the person is not a Canadian citizen. Clearly allowing such a person to enter the US with a Canadian passport is a violation ofthe law you have cited. But getting by with speeding witout the officer issuing a traffic ticket does not mean that you can continue speeding with impunity.
@tiger, If Dianne did not file any US tax returns and she would have owed no US tax had she filed. Then she is not subject to any tax return non-filing penalty, as I understand it. But if she had foreign bank accounts or signature authority over foreign bank accounts that exceeded the threshold value that requred filing, that is a different matter. Here there are severe non-filing penalties, so she needs to tread very carefully in this area. Some in her very same situation in trying to “get legal” have been severely burned. I would certainly hate to see her fall into this trap.
@All,
Where does precedence play a role or why does it not in crossing the border? The US has turned a blind eye for decades to this and our non-filing of US tax returns.
The border guards the US hires to protect their border are ignoring what is US law each day by letting 99.9% of Canadians born in the US through on our Canadian passports. (They did however harass me into obtaining my first and only US passport in 2009 by saying the next time I entered the US it was to be with a US passport, my tolerance for risk being close to zero.)
I think whenever possible it’s best to avoid dealing with humans (especially border guards that can do things just on a whim). That’s why it can be helpful to have a Nexus card. You almost never have to talk to a border guard.
@badger – I think it was a US thing. My mother (born US, British father) had to choose between US and UK citizenship IIRC at 21 in the mid-’50s. Interestingly people in her position can now ‘resume’ British citizenship, but the fee for applying is ₤600 or so.
http://www.ukba.homeoffice.gov.uk/britishcitizenship/eligibility/registration/resumptionofcitizenship/
Thanks so much for all of the posts. In terms of crossing the border – I am afraid that I have a very low tolerance for being pulled over. I do want to freely enter the US as my brother and his family live there. I would find it extremely difficult to miss weddings, funerals, etc. My problem is the I am a very law-abiding citizen. My accountant describes me as his most squeeky-clean client. Unfortunately I am near retirement and have been busy accummulating RRSPs. I would not be happy to give the US any of my hard-earned savings. Regarding the chosing citizenship at 18 years – I remember my parents telling me about this. My father is now deceased and my elderly mother’s memory is not great – so I cannot find out the details. My mother did find a letter from the Canadian consulate General in New York stating that “once registered she will be recorded as a Canadian citizen by birth under Section 5(1)(B)”. I , also, have a Certificate of registration of birth abroad. I am not sure what significance these are. I do not want to be rude – but at this point I am not interested in being an American. Any suggestions as to how I should proceed now?
@Dianne, I can totally understand why you are a Canadian citizen, which you were from the moment of birth in the US to Candian parents, and how you interpreted this to mean that you were not a dual citizen of the US. The “recording” of citizenship by birth was the formality of recognizing your Canadaian citizen, but you were indeed already a Canadian citizen.
The realities of dual citizenship have only become apparent in more recent years and you have indeed by caught in these shifting citizenship sands. As a US citizen I don’t want to recommend what you should do because it might be the wrong thing. But some who have also gone through the same experience are probably in a better position to do this. But do not do anything hasty until you have good solid information.
@omg
I have a friend, Canadian citizen born in the U.S., when applying for a Nexus Card in Canada, was told that as she was born in the U.S., she needed to apply for the card in the U.S. That would most definitely create a problem for Dianne.
My suggestion is to do nothing that you have not been doing, wait indefinitely to see what happens, and endure the limbo and uncertainty in the meantime. Welcome to the club of Brock. The club where getting out through that exit door, even for squeaky clean compliants in Canada, appears to become evermore fraught and parlous and abusive. No way can you be squeaky clean when confronted with a two-faced slimy tentacled monster that only wants to pursue you and latch onto you. Bad dream. Sit tight.
@ Roger : I think that a major stink can be made in a court case against the US position, if a person wanted to prove that he is not a citizen. Consider that if you travel using a US passport your claim to have relinquished your citizenship is belied by your actions. Thus, the government must be held to the same standard. If (1) the government permitted you to travel into the United States for forty years on a Canadian passport that was clearly marked with US place of birth, and (2) there was a law that said you may not travel to the United States on a foreign passport if you are a US citizenship, then the government has tacitly agreed with the assertion of the foreign citizen that he is not a US citizen. Thus, the United States’ action permitting the foreign citizen to travel into the United States with a foreign passport is a tacit acceptance that that person is not a United States citizen. Why should a government be held to a different standard than an individual.
Remember, the United States’ only interest in this forcing US citizenship on people is to increase its revenue base. Therefore, non-US citizens must fight this tooth and nail. And we should be getting a lot more help from our governments.
@Dianne,
Your situation is not unlike many of us on this site. I was American born but first came to Canada as an 18 year old, ‘landed’ here as a twenty-one year old, and became a citizen of Canada 40+ years ago. So like you my Canadian passport has a U.S. place of birth. I, too, have siblings, nieces and nephews in the U.S. I would like to be able to continue to visit them.
At this point, ‘we’ are not being turned away at the U.S./Canadian border. So you will be able (at least in the short term) to visit family in the United States.
Again, I repeat what I said in an earlier post, I believe it would be a travesty for someone like yourself to either enter a voluntary disclosure program or even to start filing U.S. tax returns and other forms going forward. Of course, none of us wants to be hassled at the border or feel we are doing something ‘illegal’, like not filing income tax returns. But I do believe it is important that we ‘wait and see’ what our government will do to protect us from the ‘big,bad wolf’ south of the border.
@ Tiger You do well to advise people in your situation and Dianne’s not to file. Thank you. I was telling her the same thing on the phone today. You’re also right that it is a feeling that the beast wants us to feel, that we’ve done something wrong. Dianne hasn’t done anything illegal. She is a law abiding person. The United States is the one who is violating laws: US constitutional law, international law, and natural law–by pursing its so-called citizens to the ends of the earth. It is most greedy and corrupt (by volume of corruption) country in the world. Do not feed the bear!
@Dianne, I know how you are feeling, our son was born in Canada with US mother and was registered at birth with US Consulate. He does not want US Citizenship, has no SSN or Passport. He is a very young guy 29 and we feel the only way to get rid of the US Citizenship is to file and renounce. He also has RRSP, TFSA and Mutal Funds but I am sure it does not come close to what you have saved over the years, and we are worried about the outcome of his savings. I hate it that he is filing I do not want him in the system but am afraid of what may happen down the road . He will renounce and so will I.
I have been in Canada for 35 years and STUPID ME did not get my Canadian Citizenship..so now I have to wait probably another year to get it before I renounce.
I am sure my son could just stick his head in the sand and not do anything, but at his age it is probably best to just get rid of the US Citizenship before he moves ahead with his career and savings.. I have been sick to my stomach worrying about this. I hate what this has done to the US Citizens abroad.. It is true crime.. the cost of health and our savings.. THE US GOV. SHOULD BE ASHAMED. NOT THE COUNTRY I USED TO BE PROUD OF!!
NO WAY!!
Hello Dianne:
Some advice.
1. You are in panic mode. Don’t panic. You need to make a decision. A decision is NOT an emotional reaction which is all you are capable of now.
2. The first question is whether you really are a U.S. citizen. I am going to suggest that you may have very good reason to believe that you are not. Here is why. Let’s start with your facts:
“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.”
Although the 14th amendment of the U.S. constitution says that if born in the U.S. then U.S. citizen there are ways to lose your citizenship. These are as follows:
http://www.law.cornell.edu/uscode/text/8/1481
“USC › Title 8 › Chapter 12 › Subchapter III › Part III › § 1481
8 USC § 1481 – Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or
(3) entering, or serving in, the armed forces of a foreign state if
(A) such armed forces are engaged in hostilities against the United States, or
(B) such persons serve as a commissioned or non-commissioned officer; or
(4)
(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or
(B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or
(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or
(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or
(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
Now this is the current statute. Prior to 1986 (in other words up to when you were 29 years old), the statute did not require that these acts be performed with the intention of relinquishing U.S. citizenship. So, all that was required prior to 1986 was that you voluntarily performed any of these acts. Now, I really find it hard to believe that you did not do a single one of these things before you turned 29.
To put it another way, if you did any of these acts prior to 1986, then according to U.S. law you are no longer a U.S. citizen. Assuming that you did perform one of these acts, I would simply take the U.S. at it’s word, honour its laws, and agree with them that you are no longer a U.S. citizen.
If you performed any one of these acts before 1986, you can cry yourself to sleep with the knowledge that the U.S. stripped you of your U.S. citizenship. Of course, the good news is that you would no longer have any obligations to the U.S. I take it this is a position that you could live with.
Now, do you have children? How might any of this impact on them?
In any case, I suggest that you do NOT consult anybody but a good lawyer who understands U.S. citizenship law and its permutations through the years. Of course, if you are certain that you have performed one of the above expatriating acts prior to 1986, then there may no reason to see the lawyer.
What you should NOT DO UNDER ANY CIRCUMSTANCES is walk into some law or accounting firm and announce that you are a U.S. citizen (when you may be able to determine that you are not).
If for some reason that you decide you are a U.S. citizen, then you should under no circumstances under OVDI. OVDI is for criminals. You can’t be a criminal if you didn’t know you had filing obligations in the U.S.
So, sleep tight. Don’t let the bed bugs bite and dream about all the things you did before your 29th birthday.
You might find this interesting:
http://renounceuscitizenship.wordpress.com/2011/11/13/expatriating-acts-the-status-of-your-u-s-citizenship/
Renounce: After speaking with Dianne on the phone, I was sure that some of the people here had already studied the issue of US citizenship during the period that Dianne claims to have lost her citizenship. Indeed, the statute that you cite would have been rewritten in 1986 to reflect the recent Supreme Court decision. Does anyone here know how that statute read before 1986 when it was revised?
Thanks for the info. In the mid – late ’70’s I worked for several summers at a Canadian Federal Crown Corporation. I know that they fingerprinted me, however, i do not recall if I took any oath. A lawyer (who specializes in this area) did not think that my summer job would be helpful. My personal inclination is to file my taxes quietly and relinquish my american citizenship – however, my husband and many of you are not in favour of this. So I have agreed to sit tight and am trying to figure out what is the best course of action. My husband may differ on this – but I do not feel that I am panicking – I am just busy gathering as much information as I can. I do not plan to make any hasty decisions. I am not too happy that I have not heard back from my MP, Flaherty or Stephen Harper. I am very appreciative of all of your comments.
Dianne: What is a Canadian Federal Crown Corporation? Are you allowed to tell us its name? It sounds like a government job to me. They fingerprinted you? That is really good. Sound very ominous.
Your case is very strong for an early relinquishment. Your whole life is consistent with having relinquished, having done nothing that would be inconsistent with that claim (like obtain a US passport).
@Petros
Prior to 1986 the statute was almost the same but did not have the language “with the intention of relinquishing” U.S. citizenship.
I could find this, but for now see the following:
http://www.richw.org/dualcit/law.html
1978 citizenship law amendments (Pub.L. 95-432)
On 10 October 1978, President Carter signed Public Law 95-432 (92 Stat. 1046; 1978 U.S. Code Congressional and Administrative News 2521). This bill repealed several provisions which had previously allowed revocation of US citizenship.
Some of the provisions abolished by Pub.L. 95-432 had already been rendered unenforceable by the Supreme Court. For example, the bill repealed provisions revoking citizenship for voting in foreign elections (Afroyim v. Rusk), moving abroad following naturalization (Schneider v. Rusk), and desertion from the armed forced during wartime (Trop v. Dulles) were all repealed.
Certain other provisions were also repealed, however — not because of adverse Supreme Court rulings, but because (judging from the legislative history) Congress appears to have decided these provisions were rarely used and/or were not worth keeping. For example, Pub.L. 95-432 repealed provisions revoking citizenship of foreign-born US citizens who failed to move back to the US as adults (a rule upheld by the Supreme Court in Rogers v. Bellei); children who failed to move back to the US as adults after their parents had lost or given up US citizenship (a weaker version of the rule previously struck down in Perkins v. Elg); and dual nationals who lived abroad and had voluntarily claimed benefits of a foreign citizenship as adults. It should be noted that the abolition of these provisions was not made retroactive; people who had lost US citizenship under these provisions did not automatically get it back.
1986 citizenship law amendments (Pub.L. 99-653)
On 14 November 1986, President Reagan signed Public Law 99-653 (100 Stat. 3655; 1986 U.S. Code Congressional and Administrative News 6182). This bill amended the INA to conform to the requirements of various Supreme Court decisions on loss of US citizenship.
The most significant change made by Pub.L. 99-653 was to the preamble of Section 349 of the Immigration and Nationality Act [8 USC § 1481]. The revised wording made it clear that an action, in order to result in loss of citizenship, needed to be performed voluntarily and with the intention of giving up US citizenship. This change brought the law into line with the Supreme Court’s ruling in Vance v. Terrazas.
Pub.L. 99-653 also revised the conditions under which foreign military service could result in loss of citizenship. Previously, a person could lose US citizenship through foreign military service unless said service were approved in advance by US officials. Also, a US citizen who entered a foreign military service prior to age 18 could lose his US citizenship if he had been given an option by said foreign country to leave its army at age 18, and failed to do so. All this was replaced by a new provision, under which foreign military service would result in loss of US citizenship only if performed voluntarily and with intent to relinquish US ties (see above) — and, additionally, only if the person served as an officer, and/or if the foreign army were engaged in hostilities against the US. Note that the Supreme Court had previously ruled, in Mandoli v. Acheson, that coerced foreign military service could not result in loss of US citizenship.
Previously, if a US citizen were also a citizen of a foreign country, had spent one or more periods of time in that country totalling at least ten years, and performed any of the listed actions that could result in loss of US citizenship, the action in question would be conclusively presumed to have been performed voluntarily and without duress (i.e., the person in question would not have a legal right to present contrary evidence in a court case). This provision had been put on shaky ground as a result of the Terrazas ruling, and it was repealed by Pub.L. 99-653.
Prior to Pub.L. 99-653, a naturalized citizen who moved away from the US and set up permanent residence abroad within five years following naturalization risked revocation of his citizenship — on the grounds that his promise (made on the citizenship application) to reside permanently in the US after naturalization had been made in bad faith. This five-year period was reduced to one year. (In 1994, this provision was repealed altogether.)
For a basic application of this see (I know the facts are different, but it does the irrelevance of intention):
Richards v. Secretary of State et al., 752 F.2d 1413 (9th Cir. 1985)
The following Court of Appeals case (one step below the Supreme Court) isn’t nearly as relevant nowadays as it was in 1985, in light of the State Department’s current (and much more permissive) policy on loss of US citizenship.
William Richards became a Canadian citizen in 1971. At the time he did this, the Canadian naturalization oath included a clause renouncing prior allegiances. Accordingly, a lower court concluded that Richards had lost his US citizenship.
Richards argued that he had acquired Canadian citizenship only because he needed said citizenship in order to get a job with the Boy Scouts of Canada. Although he conceded that he had made an explicit statement of renunciation of US citizenship as part of the Canadian naturalization procedure, he contended that this action on his part was not voluntary because he had been under “economic duress” at the time.
The Ninth Circuit Court of Appeals rejected Richards’ economic duress argument, observing that he had worked in Canada for several years as a teacher without being a Canadian citizen, and that there was no evidence that he had been forced to leave his teaching job or that he had made any effort to find a job that would not have required him to obtain Canadian citizenship and renounce his US citizenship.
The lower court found (and the Ninth Circuit agreed) that Richards knew and understood the significance of the renunciatory language in the Canadian naturalization documents. Although Richards would have preferred to keep his US citizenship, such a wish was not sufficient to negate the presumption that he had chosen, in the end, to give up that citizenship. “We cannot accept a test”, the Ninth Circuit stated in its opinion, “under which the right to expatriation can be exercised effectively only if exercised eagerly.”
It should be noted, by the way, that Canada no longer requires new citizens to give up their other citizenships. The renunciatory language in the Canadian naturalization oath was ruled illegal by a Canadian court in 1973 on technical grounds and was subsequently removed — and Canada has allowed dual citizenship without any restrictions at all since 1977. Hence, the Richards case is generally not relevant to Americans who became Canadian citizens after that time.
Further, the State Department’s current (post-1990) policy on loss of US citizenship specifically says that taking a “routine oath of allegiance” to a foreign country will not normally be interpreted as showing an intent to give up US citizenship. Contrast the ruling in this case with a very different ruling in a 1991 case, discussed below.
__________________________________________
Assuming the factual predicate (that she did indeed do any one of the things listed), then she should start with a presumption of having lost U.S. citizenship. Legal advice is always advisable, but get a good citizenship lawyer who understands the situation prior to 1980 when the U.S. was stripping people of their citizenship, left, right and center.
Also, as you point out, Dianne has not done anything which would suggest that she has a claim on U.S. citizenship.
If Dianne decides that she does not have facts that support the loss of citizenship she should NOT walk in to some law or accounting firm and announce that she has a tax problem. It will be more of a compliance problem than a tax problem. The first step is to evaluate her situation over the last six years and determine whether there is tax liability and why. Then and only then should she decide how to come into compliance.
Again, OVDI should not be entered unless there is a compelling reason (and I believe this would be hard to find).
Anyway, this is NOT legal advice, but practical advice for how to get organized.
Dianne if you are reading this – only go to a lawyer who understands the citizenship issue between 1957 and 1986. You need to ask yourself whether you have done one or more of the things described in the statute. Secondly, don’t just pick a tax lawyer out of the phone book.
Be careful who you work with on this.
But, after all of this, my guess is that you have little to worry about. If the U.S. were to go after you, then why not Boris Johnson?
@Petros
Federal Crown corps are entities like CBC, Via Rail, and the Bank of Canada. In the past CN, Air Canada, Telesat Canada, and Petro Canada were all crown corps too.
@Dianne
My sense is to hold tight for right now. I agree with the suggestion of find a lawyer who understands the citizenship laws from 1957 to 1986. Unfortionately I suspect one will be very difficult to find. Many cross border “professionals” tend to be of the mold of trying to find very simple answers to very complex problems. I also want to repeat the suggestion of friend of site Stephen Mopsick who was a long time IRS attorney. Basically he said one of the worst things to do at this point for someone who has never filed returns or hasn’t since the 1970s is start filing them out and sending them one. At this point I believe you are going to have hold tight as uncomfortable as that may seem. They are a lot of people involved with this issue and the number are growing by the day.
@Everyone
On the subject of Steven Mopsick I want to congragulate him for being named to American Citizens Abroad tax advisory panel today.
@Everyone
In case you were wondering other friend of the site Phil Hodgen is already a member of ACA’s tax advisory panel.
Diane: Just curious, do you have children? You do realize that they are American as well?
@ ax How can she pass US citizenship to her children when she isn’t even a US citizen. Come on people.
Citizenship is also a question of what Dianne wants and what claims she can make. Since she worked for the Canadian government, she has a good claim that she relinquished her US citizenship under this point:
She did this very thing and it is a potentially relinquishing act. She has done nothing to indicate a desire to retain her US citizenship. Thus, it should be a open and shut case in favor of her relinquishment in 1970. One problem with the law, is that the person who is naturalized as a child may never commit a relinquishing act. But if the CDN citizen goes into the Consulate and claims to have committed a relinquishing act and the Consulate refuses to recognize that act of relinquishment, the United States is waging war on the citizenry of Canada and the vast majority of us have no idea what is going on.
Dianne is a Canadian. We are not going to let the United States claim her. She is not a US person. Her act of relinquishment is already of fait accompli. The US government will have to launch a lawsuit if it wants to try to prove she is a US citizen, and if they try to do that here in Canada, they will be laughed out of court. The citizenship claims of the United States on this person are patently ridiculous.
The same hold true of the person I met who was a border baby and was drafted by the US during Viet Nam. When he joined the Canadian military he committed a relinquishing act and his loss of United States citizenship was a fait accompli. Dianne case is no different since she worked for the Canadian government in crown corporation. At least this is how I see it, and this is what she should fight for.
@petros, you are correct that Dianne could not pass US citizenship on to her Canadian-born children because there is a requirent in US citizenship law that she would have to have resided in the US for a certain minimum number of years in order to be able to do that. Since she only resided there for a very short time after her birth before her parents took her to Canada, she would fall far short of that minimum time for passing US citizenship on to Canadian-born children.
@ Roger Yes that’s right. Thank you.
I wonder however if you can see this one point: Renounce pointed out that the immigration act pre-1986 did not have the language, “with the intention of relinquishing” United States citizenship. This means that if she had applied for a US passport pre-1980 and she admitted to having worked for the Canadian government, her passport application could have been refused, and likely would have been. Thus, she is not a US citizen, because she has never had the intention of being a citizen: so whether the act was pre-1986 or post-1986, she has effectively relinquished her claim to be a United States citizen.