In July 1944, as World War II raged on, Congress passed a law to permit renunciation of U.S. citizenship by persons physically present in the U.S., which up to then had not been possible. The law was one of many aimed at interned Japanese Americans; it was a significant break from the earlier attitude, expressed as far back as Talbot v. Janson in 1795, that the U.S. should not allow loss of citizenship in wartime. The Seattle Times has more on the effects of this sordid provision in their 2004 article on the topic.
Surprisingly, the latest immigration reform bill in the Senate proposes the repeal of this law; see § 3713 (page 645) of the Border Security, Economic Opportunity, and Immigration Modernization Act. This odd historical provision probably has very little effect on Isaac Brock Society readers and other former U.S. persons — most of whom instead relinquished or renounced after moving abroad and naturalising as citizens of their new homes or taking up government employment there. But read on if you’re interested in the gory details and the rationale behind the repeal …
Why repeal it now?
The specific law in question is INA § 349(a)(6) (codified at 8 USC § 1481(a)(6)); it states:
(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 …
(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
None of the “Gang of Eight” seems to have spoken about their reasons for wanting to repeal this provision, but judging from the text of the relevant portion of their bill, their motivation is clearly not symbolic redress of past wrongs against Japanese Americans:
Sec. 3713. Preventing criminals from renouncing citizenship during wartime.
Section 349(a) (8 U.S.C. 1481(a) is amended—
(1) by striking paragraph (6); and
(2) redesignating paragraph (7) as paragraph (6).
The reference to “criminals” in the section title suggests that it’s related to the case of convicted sex offender James J. Kaufman. For those of you who aren’t familiar with Kaufman, The National Law Journal has a summary of his case; in short, after six years of lawsuits, the DC District Court ruled in February 2010 that the U.S. was indeed in a “state of war” for purposes of 8 USC § 1481(a)(6), and ordered USCIS to handle Kaufman’s case with that fact in mind. The Department of Justice abandoned their appeal against the ruling half a year later, and there have been no updates since then.
What happens if you renounce under this law?
It’s unclear how U.S. Immigration & Customs Enforcement would treat a person who renounced citizenship under this probably-soon-to-be-repealed law. A former dual citizen’s country of other citizenship would be obligated under international law to accept them for deportation — indeed, the whole goal of 8 USC § 1481(a)(6) in the first place was to give the U.S. government the means to harass & harangue as many Japanese Americans as possible into renouncing citizenship as possible, so it could deport them to Japan. However, statelesspeople, regardless of whether or not they were former U.S. citizens, could only be deported if the State Department were able to cajole or threaten another country into admitting them — witness the case of the Uyghurs formerly held at Guantanamo Bay, who have been resettled in impoverished U.S. allies like Albania and Palau.
In the past forty years I’m only aware of one attempted deportation proceeding again a former U.S. citizen — Thomas Jolley, a Vietnam War protestor. Since Congress restricted itself to authorising “military engagement” rather than actually declaring war on North Vietnam like the Constitution tells them to, and there were no District Court rulings on the meaning of “state of war” at the time, Jolley did not renounce under 8 USC § 1481(a)(6), but actually took the trouble to become a landed immigrant in Canada and renounced there under 8 USC § 1481(a)(5) instead — but then he quit his job in Toronto and snuck back down to Florida. It’s unclear what happened to him in the end, since he seems to have dropped out of the historical record after a 1973 private bill for his relief died in committee (it would have at least delayed his deportation while it was being considered).
Furthermore, due to modern Supreme Court rulings like Zadvydas v. Davis, ordinary renunciants pending deportation, unlike alleged “enemy combatants”, could not be detained indefinitely but only for a limited period. They would eventually have to be set free to go about their lives in the U.S. until deportation could be arranged — or, more likely, until they got their U.S. citizenship back, as happened in the case of Joel Slater. Slater renounced in Australia rather than the U.S., but almost immediately after his renunciation Australia deported him, he ended up getting a humanitarian parole back into the U.S., and six years later the Department of State gave him back his citizenship.
Finally, contrary to misinformed ranting often seen in the comments sections of serious articles about renunciation of citizenship, renouncing U.S. citizenship and becoming an “illegal immigrant” while staying in the U.S. is not a way to get out of paying U.S. taxes — since someone who meets the substantial presence test is required to pay taxes and file information returns in the same way that a citizen is, regardless of their immigration status.
One more interesting item in the new immigration bill pertaining to green cards.
Apparently, the US is tired of educating professionals and allowing them to go back to their home countries with all that STEM knowledge to use in competition with American businesses. The solution the bill puts forth is “stapling a green card to their diplomas”.
The article I saw this in was simply a summary, so the stapling thing is probably the author’s breakdown but it is a curious item worth noting and paying attention to.
When I mentioned it to my husband he said, “Doesn’t the US realize that these people are paying for their educations and should be allowed to go wherever they want with it?”
I pointed out that the US narrative on education has always been that it is something Uncle Sam does for the people out of the goodness of his heart even though this flies in the face of the reality – education is not free at any level in the US.
I wonder what the real reason is for the renunciation changes? Nothing is every transparent with them.
So other nations fund students to study in the US and come back to improve their home country. And now the US is angry that it’s not braindraining enough places and wants to snipe as many people as possible. US doesn’t seem to realize that not everyone wants to stay in the US, some do, most don’t, and it’s not because they can’t. So this is effectively a bribe. There will be some hilarious blowback from it.
Fred, hilarious is not the word I would use but I don’t doubt there will be blowback.
Oh and a tax related item of note in the bill makes it clear that all currently undocumented in the US will have to settle up with the IRS before they can pursue citizenship. Back taxes for all the years they lived there but weren’t “legal”. That’s interesting b/c I have read that the US rakes in quite a bit of cash via illegals using fake and stolen SSN’s, so technically speaking, these people have been paying into the system b/c the IRS is well aware of which Americans are victims of SSN theft but haven’t done much about it b/c it is profitable.
@Fred, today, a headhunter sent me an email trying unsuccessfully to convince me to quit my job with:
Two days ago, another one suggested similar, and I’m not even looking for work
Work in the US… Why? Americans are usually told:
http://www.allianzgi-funds.com/AllianzRenminbiCurrency/Pages/default.aspx
I don’t want to live in America.
I haven’t had time to really look into what this immigration bill does or doesn’t do, but I assumed that it would not be a simple document, and when I heard 800 pages, my eyes rolled.
Now, I see this this morning about the complexity, and par for the course with the States. They might want to make this compete with the Tax Code….
Immigration bill contains 400 waivers, exceptions and exemptions
The Senate’s pending immigration bill includes roughly 400 exemptions, exceptions, waivers, determinations and grants of discretion.
The bill’s complexity is forcing opponents and supporters to comb through its 844 pages before they can declare their conditional support or opposition to the high-stakes measure.
Read more: http://dailycaller.com/2013/04/18/immigration-bill-contains-400-waivers-exceptions-and-exemptions/#ixzz2QvmGhAkG
Parents cannot renounce United States citizenship on behalf of their children. Before an oath of renunciation will be administered under Section 349(a)(5), persons under the age of eighteen must convince a U.S. diplomatic or consular officer that they fully understand the nature and consequences of the oath of renunciation and are voluntarily seeking to renounce their citizenship. United States common law establishes an arbitrary limit of age fourteen under which a child’s understanding must be established by substantial evidence.
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One of the things I found interesting along these lines is the degree to which many European countries most noteworthy Germany refuse to accept deportees from the United States. There is still a long list of World War II era war criminals that the US has denaturalized but which no country(Germany, Ukraine, Poland, Lithuania) will accept. It also does not help the US that it is not a signatory to the few limited conventions dealing with such issues.
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Just ran across a story about another convicted criminal who tried renouncing under the Renunciation Act of 1944, which gives a bit more specific detail about what USCIS is actually telling these folks:
https://law.justia.com/cases/new-york/appellate-division-third-department/2014/517502.html
Interestingly, in this case, the guy had already been released from prison. However, he was being held for psychiatric treatment, and he just lost a New York Court of Appeals case where he was trying to get released. His argument was kinda amusing: he said that non-citizens in his situation would have the “right” to get deported from the country, whereas he didn’t, and he called it an equal protection violation. Unsurprisingly, the court was not convinced.
http://www.newyorklawjournal.com/this-weeks-news/id=1202662402396/Panel-Denies-Sex-Offenders-Citizenship-Renouncement?mcode=1202615038803&curindex=9&slreturn=20140609044257
Disclaimer: the above contents are entirely useless to any normal American emigrants & accidentals and will probably be of interest only to armchair legal scholars.
A convicted sex offender who lives in the U.S. is trying to challenge the in-person renunciation requirement under INA 349(a)(6). He got Georgetown University Law Center to write him an amicus brief, and just scored a victory in the DC Circuit: they remanded the case to the district court for further proceedings.
http://www.miamiherald.com/2014/08/08/4278969/appeals-court-allows-inmate-to.html
http://www.cadc.uscourts.gov/internet/opinions.nsf/DB41AEB1927849CF85257D2E004E3FC8/$file/12-5200-1506785.pdf
Meanwhile, law-abiding emigrants who live abroad have to wait months just to get an appointment at a consulate to renounce under (a)(5) and a year longer to get a CLN. What a country.
@Eric, thanks for posting these tidbits re; challenging “… the in-person renunciation requirement “.
It will be interesting to see how this proceeds.
There are many around the globe who cannot afford the time, cost and/or physical effort to travel to a US consulate/embassy to renounce in-person – at the pleasure and leisure of the US government rationing appointments (ex. Toronto booking now into January 2015) (and pay 450. US for renouncing – which is a legal right), or who have mobility or other health challenges. Denial of the right to renounce to a person based on an economic or disability barrier – and demanding that without exception every individual must appear only at the time, date and place designated at the pleasure of the State Department and the USG is surely a human rights violation.
As was calculated by various people posting on IBS (sorry, can’t find the posts just now), it could take decades, or even a century at this rate to process those in Canada and the UK alone, if everyone designated a US citizen tried to relinquish/renounce. Of course, the US doesn’t have a good track record of addressing egregious citizenship violations in a timely manner http://isaacbrocksociety.ca/2014/04/14/u-s-senate-regrets-passing-discriminatory-anti-expat-laws/comment-page-1/ .
@Badger, I know some may disagree but I think if one was resident outside the USA and applied for a US Passport stating that they had voluntarily and intentionally relinquished and that they were applying for a US Passport under duress to travel to the USA, I would think they would refuse to issue said passport stating you are not a US Citizen.
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Just a quick update, as I am the James Kaufman referred to in this article. The Department of Homeland Security, in all of their infinite wisdom, is still refusing to grant the renunciation of citizenship. They have been fighting this for years, despite the Court’s previous orders, and we are now back in court, addressing the issue yet again. This time around, they are asserting that renunciation requires an INTENT to give up all ties to the United States, and since I am REQUIRED to remain in the United States under parole supervision until January 2016, that means I don’t have an INTENT to give up my ties. The federal Court of Appeals in Washington DC already addressed this issue at oral argument, stating that just because Wisconsin says I MUST stay in the United States until that time, that doesn’t equate to an INTENT to stay. So, that’s where the case is at this point. I have still never received an adequate explanation as to why they would want to force a person to be a citizen and remain in this country against their will, especially if that person has a criminal record. I’d be happy to clarify and answer any questions people might have on the issue. Direct e-mail is kaufmanj1973@gmail.com
Thank-you for the update, James Kaufman.
Interesting twist, James Kaufman, and how the Department of Homeland Security is involved. And, obviously, most here would not know of how your case works with the US. It is a departure from the norm. Thanks for weighing in.
What is the possibility of another country taking you in after your parole is up? I am only aware of the Department of State granting renunciations and, as far as I know, only from a US Consulate in a country outside the US.
Homeland Security is involved through a complex web of laws. The statute I used (8 U.S.C. 1481(a)(6)) explicitly states that such renunciations go through the Attorney General. The AG delegated that responsibility to the Immigration and Naturalization Service (INS), which no longer exists due to the creation of Homeland Security. All INS duties were transferred to Homeland Security, specifically USCIS (U.S. Citizenship and Immigration Services). Technically, it still falls under the AG, but the delegation of authority still stands. It’s an obscure statute, and most people had forgotten about it until I decided to try it. You are correct, the Department of State handles ALL OTHER types of loss of citizenship, just not this specific method.
Regarding other countries, I have attempted to contact various embassies to find possible places I can go. It’s going to be a struggle, I know that. I will be a stateless person. Officially, I suppose I could go to any country that is signatory to the United Nations Convention of 28 Sept 1954 (the Stateless Persons Convention), which would grant me residency and employment rights. The United States refuses to comply with that doctrine, and I wouldn’t want to stay here anyway. If I had my pick, it’d be one of the following: Ireland, France, Canada (Nova Scotia).
A few weeks ago, someone on Craigslist in North Carolina was looking for a lawyer, apparently to pursue a 1481(a)(6) renunciation case. Not sure how serious.
https://archive.is/RNsO0