With thanks to tiger who alerted me to this, I am linking two posts authored by Stephen Flott of Flott & Co. PC The Accidental US Citizen. It furthers discussion we have been having here on these very questions for “Accidental Americans.”
[If the following legal opinion is correct, finally I will have done something right (in the US realm) for my developmentally delayed adult son by not having registered his “US Birth Abroad.” And, if this is true, I’ve just ducked damage by a major flood in southern Alberta and nonsensical US tax and reporting compliance for my son for the rest of my life and his — my good KARMA vessel is getting low. Of course, this is just one subset of those deemed “Accidental Americans.” In my common-sense view, NONE of ‘supposed’ US Persons Abroad who are somehow classified as “Accidental Americans” who had no choice to whom they were born or where they were born should be caught up in the absurdity. The only way to solve that is a change by the US to Residence-Based Taxation. Let’s get real; let’s get fair.]
Accidental American – US Citizenship: Self-Executing or Not? (May 23, 2013)
Ms. X was born in the United States. She is a US citizen by birth. Her US citizenship is self-executing and non-consensual. Her birth certificate is all that is needed to establish her citizenship.
Let’s say she goes to Canada and enters as a landed immigrant. Her entry into Canada as a landed immigrant is not itself an expatriating act. Section 349(a)(1) and (2) of the Immigration and Nationality Act provide that swearing an oath of allegiance to a foreign sovereign is an expatriating act if taken with intent to set aside US citizenship. As soon as Ms. X swears the Canadian citizenship oath before a Canadian Citizenship Court, she will become a Canadian citizen. If she swears the oath with intent to set aside her US citizenship, she will then complete a Form DS-4079 and establish that she relinquished her US citizen upon becoming a Canadian citizen. Her oath of allegiance to Canada is sufficient when combined with her statement of intent to extinguish her US citizenship. However, the mere fact of becoming a landed immigrant is not sufficient as it does not involve the taking of an oath of allegiance and thus, by itself, is not sufficient to expatriate her.
Mr. Y was born in Canada to a Canadian father and a US citizen mother who resided in the US long enough to give her the right to pass on US citizenship to him. However, his mother takes no steps to register his birth abroad or otherwise assert US citizenship and he has not done so either. Mr. Y is not a US citizen automatically, that is, his citizenship is not self-executing. The language in the Section 301(a) states: “The following shall be nationals and citizens of the United States at birth:” [at which point the section lists seven subcategories, including subsection 7 dealing with children born outside the United States “of parents one of whom is an alien, and the other a citizen”]. Most people, including virtually all US lawyers interpret the “shall” to be mean Mr. Y automatically became a US citizen at birth.
However, I believe that “shall” in the context of subsection 7, where one of the child’s parents is not a US citizen and the child has obtained citizenship by birth or heritage of a country other than the United States, to mean that the child has the absolute right to US citizenship upon providing adequate proof of his heritage AND that his US citizen parent meets the residence requirements of the section.
However, Mr. Y’s citizenship is not “self-executing”. Someone must do something to establish his citizenship. His mother did not obtain a certificate of registration of birth abroad before Mr. Y turned 18 and cannot now do so. Mr. Y has not yet sought to assert US citizenship by obtaining proof of same which he would do by obtaining a US passport. That process would require him to present evidence of his US citizenship. He is, of course, free to do that at any time he wishes. However, until he takes some action, his US citizenship in an “inchoate right”, that is, something that he can assert and cannot be taken away from him by the US government. Clearly, he must be a “citizen” to obtain a passport. However, being “entitled” to citizenship is not the same as “being” a citizen. In other words, US citizenship in Mr. Y’s case is not self-executing.
In the absence of any action taken by Mr. Y, the question then turns to whether the US government could force him to obtain a US passport. Indeed, there is no case in which the US government has forced a person in Mr. Y’s position to obtain a US passport. Thus, the “automatic” citizenship position fails. The real question turns on whether US citizenship for those born outside the United States is mandatory. Clearly, it is not.
As a practical matter, Mr. Y has nothing in his official citizenship file in the United States. His Canadian passport indicates a place of birth in Canada. Thus, there is no outward evidence that he is a US citizen and, in the absence of obtaining a US passport, nothing to identify him as a US citizen. Both as a legal and practical matter, Mr. Y is not a US citizen and is not identifiable as a US citizen. He may, of course, choose to apply for a US passport and will undoubtedly obtain one should he do so.
Citizenship Article Series: US Birthright Citizenship (June 13, 2013)
Birthright Citizenship — The Absolutely Clear Case
All persons born within the borders of the United States are citizens. It does not matter if their mothers were in the U.S. legally (as tourists, for example) or illegally, or whether the children leave the United States the day they were born. It bears repeating: all persons born in the U.S. are automatically citizens. This is the absolute citizenship situation.
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calgary411 | June 29, 2013
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Thank you for this blog entry. We are discussing the very same at Comments. I will post as a new thread your above article. I am awaiting confirmation from Sylvia D. Johnson, General Consul, US Embassy in Ottawa, Canada that advice given in three instances as reported at Isaac Brock is indeed correct — that they do not have to go through the process to obtain US citizenship if they were not registered as births abroad to US parents to then be able to renounce that US citizenship.
We all (especially “Accidental Americans” born in a country abroad to US parent(s) but not registered as US births abroad) need absolute clarification on if there is an OPTION of US citizenship, to not be blindsided by the US further down the line (worst-case scenario). I want to know:
Is a person born abroad to US parents (with all the time definitions) automatically a citizen from the time of birth?
Does that person have to a claim to US citizenship if he/she so chooses upon becoming an adult?
I know that many don’t think this necessary, but I’d rather go forward with an absolute answer. I just think a big segment of US Persons Abroad should not have to find work-around’s to live normal lives in other countries. Why don’t we absolutely know?
Hello Clifford, I have huge doubts this could happen. In fact, I was born out of wedlock to a US citizen father and a Swiss citizen mother, in the 70’s. My parents had met abroad and my father disappeared before I was born. In my personal case, there was no doubt who was my biological father, I had his name and he was quite a famous person in his field at that time. So I grew up without knowing him but found out later that I had several half siblings and finally, after many years searching for him, got in touch with him. He never wanted to “officially” acknowledge me, but I had a Y-Chromosome test done with one of my half brothers. The Y-Ch. matched and with this proof, I finally was able to bear my father’s last name (as a man, I felt it was really important to me, but it took me a year to have it changed, because in the swiss law context, it is nearly impossible for one to have their last name changed, unless they have very good reasons). Anyway, for the past 10 years, I’ve been trying to find a law that would entitle me, in my case, to US citizenship. But there isn’t one yet. If I was to emigrate to the US, I would need to do it like any other alien, apply for a visa, etc. There is a law in Canada called “Lost Canadians” that entitles all born out of wedlock persons (as long as they can prove their blood relationship) to Canadian citizenship. I wish a law called “Lost Yankees” would exist too. In other words, DNA is simply not enough to entitle one to US citizenship. There are many more requirements, unfortunately. I can look for it if you need the list 😉
It’s not a need for me to have US citizenship (I’m a Swiss citizen with the right to live & work wherever I want in the EU), it’s more that my right to be a US citizen was taken away from me when I was born, because of my father’s absence.
I know most people on this website believe it’s a “blessing” not to have to pay taxes because of that, but in my case I feel this was unfair and still don’t understand why the US law doesn’t allow me to file a documented record to prove my lineage and allow me to become one of their overseas tax payer.
I don’t know who you are, Clifford, but if you’d be interested to start a petition with me to ask the Senate to vote a similar law to the “Lost Canadians”, I’d be happy to get in touch with you.
Have a great day!
“I know most people on this website believe it’s a “blessing” not to have to pay taxes because of that, but in my case I feel this was unfair and still don’t understand why the US law doesn’t allow me to file a documented record to prove my lineage and allow me to become one of their overseas tax payer.”
I don’t know that this is the forum to start promoting the proliferation of US citizenship for wannabe homelanders abroad.
What a ball of wax this would pose for the US — but with DNA, why let the hypocrisy continue?
If I was born on December 4. 1952 from a U.S. citizen father who Is now deceased never lived in the United states can he trasmit citizenship ?
You can look it up on these charts.
Born in wedlock:
Born outside wedlock:
At a quick look, it looks to me like he didn’t transmit the citizenship if he hadn’t lived in the US.
Do you mean that YOU never lived in the US or your Father never lived there?
If your Father lived there then it would depend on when and at what age he left, as Pacifica outlined above.
If you have a non US birthplace and your birth was never registered with the US, then they don’t know you exist.