On Wednesday, in Johannes Weber v. Department of State, Judge Ellen Huvelle of the United States District Court for the District of Columbia granted a State Department motion for summary judgment against a pro se litigant who sought to renounce U.S. citizenship in favour of retaining his existing German citizenship. (Pro se is a Latin term for a heretic who refuses to hire a priest to help him complete his obeisance to the paperwork gods).
Note that this is indeed a case of renunciation and not relinquishment: Weber signed an Oath of Renunciation. State denied the renunciation based on the consul’s judgment that Weber lacked full mental capacity at the time. This is unfortunate but sadly to be expected. What really worries me about this case is Huvelle’s entirely unprompted comment that recent, vaguely-defined “affiliation” with the U.S. is grounds for the State Department to determine that a renunciant lacks the required intent to lose citizenship. This is something that even State themselves does not seem to have claimed.
I’m a bit unclear on Weber’s back story, but it looks like he’s a dual citizen of the U.S. and Germany by birth. In the 1990s, he was convicted of wire fraud. A few years later, he was also convicted of obstruction of justice due to a profanity-laced voicemail message in which he stated he was going blow up a U.S. consulate and murder a judge. Whether or not he’s mentally ill, the term “poor impulse control” probably applies. He appealed the latter charge in 2003, but the conviction was upheld.
Anyway, Weber eventually got out of prison and found his way over to Europe. A few weeks after arrival, he went to the U.S. embassy in Amsterdam to renounce. A vice consul questioned his mental capacity on the basis of his conduct during the renunciation interview. From page 3 of the judgment:
… although at the interview Weber “appeared to be acting of his own free will, without undue influence from others” and stated that he understood that a renunciation of citizenship was irrevocable, Weber also “displayed other signs that bring into question his mental capacity to formulate the intent required to lose nationality.” … in several phone conversations prior to the interview, Weber had been “very aggressive toward staff,” expressing a desire to renounce citizenship immediately and a distaste for bureaucratic “red tape.” (Id.) At the interview … Weber “displayed belligerent behaviors, including loud mouthing and verbalizing great resentment toward the U.S. government,” claiming that the government “kidnapped him and held him against his will for several years.” …
[S]hortly after the interview, the consulate received an email from Weber, in which he wrote that “his lawyer wanted him to point out that he had been an inpatient under the care of the Veterans Administration’s mental health unit in Perryville, Maryland six weeks prior to the interview,” that he had “received treatment for post-traumatic stress disorder for the past seven years,” and that he had taken medication and seen a physician for treatment.
Doesn’t like red tape or prison? Clearly the man’s nuts! Though to be fair to the consul, the blame for this mess lies equally with Weber’s lawyer who advised him to send that email. That apparently led the consul to conclude that Weber’s act was a transitory fit of rage by a man of dubious mental stability. This might have been a reasonable judgment call at the time, but in hindsight it was not correct: three years later, Weber is still interested in renouncing his citizenship. His best choice would probably have been to go back and sign another oath of renunciation. However, that might have involved another $450 fee and certainly another long wait, and by this point Weber — who does not appear to be the world’s most patient man — seems to be getting sick of the bureaucracy.
Also, Weber has another reason to argue that he renounced in 2009, instead of going back and getting a new 2012 renunciation date — even if he’s not aware of it. Given the fact that he’s openly admitting this to the U.S. government and even seems to believe it’ll help his case, I’m guessing that he might have mistakenly filled out DS 4079, the questionnaire for relinquishers, in addition to or in place of one of the required renunciation forms. Hopefully it doesn’t lead to an IRS audit and a bunch of ridiculous FBAR fines. From page 4:
He also claims that he has not filed and does not pay U.S. income taxes.
Anyway, Weber apparently got rid of the lawyer and went to the length of researching for himself how to file a motion in U.S. District Court. He then sent in some sort of letter which got treated as a request for mandamus relief or for judicial review under the Administrative Procedure Act. The State Department, however, filed a motion to dismiss — for no possible reason I can discern, besides idiotic bureaucratic refusal to back down for fear of a bad mark going in someone’s career file (p. 4).
In declining to grant any relief for Weber, Huvelle quoted, out of all possible cases, Lozada Colon v. Department of State (p. 5). For those of you not keeping up with your renunciation cases, that was the one back in 1998 in which Puerto Rican independence activist Juan Mari Brás and various supporters renounced U.S. citizenship in Venezuela, promptly moved back to Puerto Rico, went on voting in local elections, and even got a Puerto Rico Supreme Court ruling that they were entitled to do so — until State stepped in and revoked all their CLNs, putting an end to the party. They’re the reason why the Foreign Affairs Manual now has that passage about making sure a renunciant does not intend to return to the U.S.
Huvelle points out that State has the legal authority to deny issuance of a CLN to someone who appears not to have full mental capacity at the time. However, she goes on with an argument that worries me far more (p. 12):
[G]iven the State Department’s “discretion to determine whether an individual has adequately renounced affiliation with the United States so as to trigger” the right to expatriate, Lozada Colon, 2 F. Supp. 2d at 45, it cannot be said that it abused its discretion by denying a CLN to plaintiff, who had recently been affiliated with the U.S. as a Veterans Administration patient.
This extends State’s power in excess of anything authorised by statute or even self-authorised by regulations or procedural manuals. In a relinquishment case, you could indeed destroy your claim to relinquishment if your expatriating act was some time ago and in the intervening period you did something that demonstrated continuing “affiliation” with the U.S. — voting, using a U.S. passport, etc. And if Weber had claimed to have relinquished but then used some U.S. benefits, that would have been grounds for State to claim his relinquishing act was not performed with the “intent” of losing U.S. citizenship.
But Weber signed an Oath of Renunciation. In a renunciation case, the State Department looks for comprehension, voluntariness, and intent at the time of renunciation (7 FAM 1260). “Lack of intent” is not a matter of whether an individual had some past affiliation with the U.S., but whether he claims he has the right to continue that affiliation (7 FAM 1261(h)). I don’t see anywhere that the State Department made this “affiliation” argument themselves; instead, Judge Huvelle appears to have opined this on her lonesome without any prompting.
In short, I’m not impressed with either State’s conduct or the judge’s opinion in this case. But there’s two obvious takeaways for friends of Isaac Brock:
- Take anger management classes and pictures of cute little puppies before going to your renunciation appointment, lest the consul conclude that you’re insane on the basis that you don’t like the United States the way any sane person would
- If you plan on ranting and raving, well then you’d better make sure you have an airtight case for lack of any “affiliation” with the U.S. besides your birth