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.
and
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.
I left this comment, which is awaiting moderation:
calgary411 | June 29, 2013
Your comment is awaiting moderation.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?
OR
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?
Thank you for this. I have been told various things about it. I did not register my son at birth or any time after that. I felt he should make that decision for himself. He never wished to be American as he grew up and was born here. It didn’t occur to me until recently of course that there was a small chance the U.S. could claim he was “theirs” I’d like a solid response on it too. Great topic and helpful to so many people.
Perhaps we should ask “do they have the ‘option’ to claim US citizenship”, as it is certain that children of US citizens who can bestow it do have the right to US citizenship.
Many thanks to tiger for a great find. Stephen Flott is on Twitter (@StephenFlott); he doesn’t seem to go on too much but I’ll send him a tweet of thanks.
Anyway, if this gets too much attention I’m sure the US will amend the law to make the situation worse. After all this is why they created the separate definition of “tax citizenship” whereby the IRS claims you remain a US person under § 7701 even after you’ve renounced, until you file your form 8854. The motivation behind that was the US government’s paranoid worry that people might relinquish without reporting their relinquishhing act, meaning they retain a “call option” on US citizenship that they could exercise if needed.
Thanks, bubblebustin. Haste made waste. Thanks for highlighting that very important distinction!
Thanks for doing that, Eric. Besides my comment on his June 13th blog entry, I have also sent Mr. Flott an email.
I was born in the U.S. in 1953 to Canadian parents., They applied and received for me a RBA certificate. Our family moved back to Canada when I was a child. I found out from a Brocker about INA 350. A person who acquired at birth the nationality of United States and a foreign state and who has voluntarily sought or claimed benefits of the nationality of any foreign state shall lose his United States nationality by hereafter having a continuous residence for three years in the foreign state of which he is a national by birth at any time after attaining the age of twenty-two years of age unless (those unless did not apply to me).
On October 10, 1978 the President signed Public Law 95-432 which repealed INA 350 effective that date. Public Law 95-432 did not restore citizenship to anyone who lost citizenship under Section 350 INA prior to October 10, 1978. I was 25 before that date.
In October 24, 1994 President Clinton signed INTCA ,Sec 103
Sec 103 of this act retroactively grants citizenship by birth to any natural born citizens who lost citizenship for failing to meet physical presence retention requirements that were in place before 1978 effective Oct 25 1994. Also Sec 103 of INTCA gives those who lost their citizenship between 1934 and 1978 due to a failure to satisfy retention requirements an opportunity to reclaim their citizenship by taking an oath of allegiance to the U.S.
My question since I have never taken an oath or done any other thing that would show I wanted to be a U.S.citizen — could I request a finding of loss of nationality?
@cborna,
Yet another scenario and more questions on just who is AUTOMATICALLY a US citizen OR who has an OPTION TO CLAIM US Citizenship. Do any lawyers want to weigh in on this?
Thanks, cborna!
This is an interesting article. Is a person born to U.S. Person/s abroad a U.S. citizen? The issue is framed by the author as:
“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.”
If you were born outside the U.S. you should NOT accept that you are a U.S. citizen. Although Mr. Flott cites the current law, the controlling law is the law in effect when you were born. In a previous post I demonstrated the complexity of this issue.
http://renounceuscitizenship.wordpress.com/2012/01/27/accidental-u-s-citizenship-does-it-stay-with-you-for-life/
Furthermore, it is not clear whether Mr. Flott’s interpretation of the law is correct.
This issue is deserving of practical and theoretical advice and it is important to separate the theoretical from the practical.
Theoretical: Mr. Flott is framing the issue as follows:
Assuming a person is born outside the U.S. and a statute says that person “shall be a U.S. citizen”:
is the person a U.S. citizen or does that person have only a right to U.S. citizenship?
Mr. Flott cites no legal justification for his assertion that: “U.S. citizenship is not self-executing”.
I could well imagine that U.S. taking the position that:
– because the U.S. has a property interest in the parent(s);
– the U.S. has a property interest in the children of the parents.
This view is consistent with the assumption that citizenship is a property right in the government. Unfortunately, that is exactly the position the U.S. government takes.
On the other hand, the issue is one of the correct interpretation of the controlling statute. I note that that the UN Declaration of Human Rights abolishes slavery and makes citizenship a free choice. That argument would and should be raised.
Practical (so far) –
In most cases the U.S. does not know about children born outside the United States. To date there is NO requirement to register the birth of
childrenchattels born abroad. Therefore, there should be little way of discovering them. They might be discovered if the U.S. citizen abroad files 1040s and tries to claim the child as a dependent (big mistake). (Just as a reminder, U.S. citizens cannot claim non-U.S. citizen children as dependents.) Quite obviously, if you were born outside the United States and you have not made any effort to draw attention to yourself and claimed any of the “so called” benefits of U.S. citizenship, you should NOT do so. The law in this area is complex and has changed over time. How about some plain and simple practical advice!If you were not born in the U.S., then don’t pretend to be a U.S. citizen.
(Last month I predicted “FearBAR” the “Foreign Email Account Report”. This month I am going to predict the “USPBA” “US Person Born Abroad” report. It will become part of the 8938. As you know the 8938 is to force US persons to identify the assets of US persons outside the United States. Clearly, life forms born outside the U.S. to U.S. persons are taxable assets. This is of course one more reason why non-U.S. persons should avoid procreation with U.S. persons. But, you probably think I am going to far …)
This Is A FATCA Issue – What if a person born outside the U.S. to a U.S. person is not a U.S. citizen? What if a FFI asks the following two questions:
Q. Where were you born?
A. Canada
Q. Where were you parents born?
A. U.S.
On this basis the person is presumed to be tainted with “U.S. citizenship”
What if the person can demonstrate that he/she is not a U.S. citizen?
This demonstrates that FATCA and its collaborators are conspiring to punish people based only on a suspicion of being “U.S. property”.
Yes, the law of U.S. citizenship does need clarification. Many Canadians are suspected of having the taint of U.S. citizenship. But do they really carry this disability? Who knows, but I admire the U.S. approach:
Let’s presume all persons are taxable U.S. property. Put the burden of proof on them to demonstrate they are not.
My recommendation to ALL people is to reverse this presumption. Let’s make the presumption:
I was born a free person. I continue to be a free person. I do not consent to being the property of any government or person. I am not a slave.
________________________________________________________________________
If you are interested here are some relevant links on the “ownership issue”:
Here is the link to the current governing statute – Immigration and Nationality Act
http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act
Here is the link to and text of S. 301 (which speaks to this issue):
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9620.html
INA: ACT 301 – NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH
Sec. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;
(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;
(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;
(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and
(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States. 302 persons born in Puerto Rico on or after April 11, 1899
Here is the link to S. 308 which highlights the difference between a citizen and a national:
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9761.html
Nationals but not citizens
INA: ACT 308 – NATIONALS BUT NOT CITIZENS OF THE UNITED STATES AT BIRTH
Sec. 308. [8 U.S.C. 1408] Unless otherwise provided in section 301 of this title, the following shall be nationals, but not citizens of the United States at birth:
(1) A person born in an outlying possession of the United States on or after the date of formal acquisition of such possession;
(2) A person born outside the United States and its outlying possessions of parents both of whom are nationals, but not citizens, of the United States, and have had a residence in the United States, or one of its outlying possessions prior to the birth of such person;
(3) A person of unknown parentage found in an outlying possession of the United States while under the age of five years, until shown, prior to his attaining the age of twenty- one years, not to have been born in such outlying possession; and
(4) A person born outside the United States and its outlying possessions of parents one of whom is an alien, and the other a national, but not a citizen, of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than seven years in any continuous period of ten years-
(A) during which the national parent was not outside the United States or its outlying possessions for a continuous period of more than one year, and
(B) at least five years of which were after attaining the age of fourteen years.
The proviso of section 301(g) shall apply to the national parent under this paragraph in the same manner as it applies to the citizen parent under that section.
@Cborna
Here is what I think is the correct interpretation of your situation:
1. Since you were born in the United States you are as per the 14th amendment a U.S. citizen.
2. In 1967 the Supreme Court of the United States in a case called Aforym (the only court that matters) made it clear that the U.S. government could NOT strip those born in the U.S. of their citizenship. Absent your intent to relinquish your citizenship they cannot take it from you.
This would make s. 350 of the INA invalid. In other words, the law that required the three years of residence was unconstitutional to begin with. Therefore the US did not have the right to take your citizenship (but they did it anyway). And you believed that they took it from you.
3. It seems very obvious to me, given the greatness of the United States, that you voluntarily failed to return to the United States during the relevant three year period, because you didn’t want to be a U.S. citizen anymore. Obviously if you had wanted to be a U.S. citizen you would have moved there (and there was nothing stopping you).
4. You apparently accepted that they took your citizenship and have lived your life as such ever since. You have never claimed any of the so called benefits of U.S. citizenship.
5. I strongly suspect that Public law 95-432 was just a recognition of the decision in Aforym. (But hey, they unlawfully took your citizenship and you handed it over to them.)
5. The 1994 Clinton law was a statement saying that the U.S. would, if you want (but you don’t have to), reverse its taking of your citizenship. (even though they didn’t have the right to take it in the first place).
So what does all this mean?
The U.S. made it clear prior to 1978 that it did not consider you to be a U.S. citizen. I would just take them at their word. You have a strong defense against suspicion of being a U.S. person. Unless of course, you are feeling that you are a Patriotic American, then I guess you could get them to accept that you are a U.S. citizen.
Lie low and print out copies of these previous laws.
Could not such US complexity be deemed a mortal sin? Really, what would any religious deity say or do?
Why couldn’t the future of humanity simply boil down to:
Instead we have unheard of future complexity for the world: “An eye for an eye and a tooth for a tooth; continued wars that don’t make sense and none of us can afford; a FATCA, DATCA, GATCA world”. We’ve all gone crazy.
This whole thing continues to circle back to the main problem – dual citizenship. And is it really possible to be a citizen, in the the active sense, of two places at once. It’s like the legal equivalent of a singularity.
Unless someone makes a point of dividing time between two places, imo, they are the actual citizen of the country they live, work and are building a life in and their other citizenship is simply a placemarker, a place they could return to as a fallback but more than likely won’t.
I know that there are some bloggers who argue that we should all have a second passport, but unless the fallback country is so laid back legally that they don’t give a second thought at all to citizens who are effectively active citizens in another country – this current system doesn’t work all that well. Worse now that govts have the tech necessary to hunt their prodigal citizens down and demand accountings of just about anything they choose to make citizens account for.
I have a US birth place and so does one of my children. And we lived there. Me long enough that I have retirement accounts that will tie me to the system forever even after I’ve shed my USC.
But, if you don’t have a US birthplace, weren’t registered and never made a move indicating an inclination towards being a USC, it doesn’t seem like you need do anything. The burden is on the USG to claim you.
Being born on their soil gives them a lot of power, but being born to a USC and a non-USC in another country? Now it’s a new ballgame. For you, it’s a matter of digging in and making a fuss to your country’s elected officials.
I mentioned on another post that I understood the Canadian govt’s practice of laying low, stalling and giving in when the US just won’t let go of an issue. They are huge and heavily armed and we are neither, but on the subject of citizenship, it’s really a simple matter of ignoring their ever-changing definition of who is or isn’t there when the topic is being born in Canada.
The US itself doesn’t seem to be able to answer the rather straight forward queries on the subject that they’ve received lately, and I would guess it’s because they know they are on much shakier ground and don’t won’t to go on any official record. Clarifying this in an email response would keep them from the various verbal answers they can/have given people over the years. Written can be verified but verbal is hearsay.
Sec. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
Am I reading this right? If you are not within the physical/geographical jurisdiction of the US/it’s possessions, you are not a US citizen? I am not subjct to the jurisdiction thereof, if all of my life, except a year as an infant, I have been subject to the juridiction of Canada.
That is what it says, The Mom.
But it doesn’t say that having been born in the US and then leaving with your Canadian parents as an infant you lose the jurisdiction thereof. It appears you didn’t lose the jurisdiction thereof just as the rest of us born and raised and then left the US as adults didn’t. It appears you and we were branded at birth. It appears the US has given you the gift of US citizenship at birth, rather than an option, a choice to make when you reached adulthood. They could not comprehend that anyone would not want that gift.
Perhaps that would be fair if the US taxed on residence since you are no longer resident. With US citizenship-based taxation, it is in no way fair. Fair with citizenship-based taxation would be an option or a choice to claim a US citizenship when you became an adult.
Gobbledy Gobbledygook.
Mom, I agree with Calgary411. There is no wiggle room if you were born there no matter how long your stay was afterwards. The USG claims jurisdiction over you, and before all other claims, as long as you were born on their turf.
It’s like slaves on a plantation pre-Civil War. I think the Supreme Court spelled out the ownership/place of birth thing vs. moving away in the Dred Scott decision.
@ The Mom,
I think in the Immigration and Nationalties Act the’re using the term “subject to the jurisdiction of the US” in the specific sense as mentioned in the Dept of State Foreign Affairs Manual 7 FAM 1110.
The 1995 version is interesting reading for comparison with today’s as it had several other situations where children were not born “subject to the jurisdiction” of the United States – however in the current version, it says these are dealt with in Appendix J, which is “under development.” The 1995 version also has some background information in it.
Yeah, I know. (sigh)
It’s just like saying if you swear an oath to another state, you get a get out of jail free card, but I got screwed on that one, too, as a dual.
I don’t believe I will ever get over my new feelings for those idiots.
Thank you, Calgary411 – great research on a topic that has been on my mind a lot these days.
I met another French Accidental American the other day. She was born in the UK but her parents moved to the US and her father had the family naturalized when she was 3 years old. A few months later the family left for France and when she became an adult she became a French citizen. She is now retired and her bank is implying that she is a US person (her mother retained US citizenship). Question is, of course, is how to get this all straightened out. To add to her troubles she speaks very little English and if the native English speakers here find the articles and paperwork confusing, imagine how much she’s struggling.
Which made me wonder if it might not be useful to translate some of the articles here in Isaac Brock so that they are more accessible?
And here is another article I found that I thought was very clear:
http://www.procopio.com/userfiles/file/assets/files1/docs-1738595-v1-accidental-americans-and-the-push-to-renounce-us-citizenship-2448.pdf
@cborna, you will need documenation to prove that you are not a US citizen. A US birth place is “US indica”:
@Victoria, in the last few days, I’ve began to organize the data a bit better by hiring sharepoint.glasscoin.ch. If anyone is interested, I can give given them accounts to post articles, such as translations or such. I work full time and have a family, so there is only so much that I can do and my todo list is endless.
As some may know, my renunciation flowchart is here
This will be the base for a renunciation guide
Here is a list of 110 news articles on US renunciation issues from 1950 until today
Renunciation documents
Fatca stuff is here
I’ve been wanting to define, structure and organize before being more public about this, but this would be a good place to organize translations of the various issues.
Nations have different languages, ethnicities, religions and customs, and they want to protect these things, so they restrict what people not considered part of their nation can do there. I understand that. The problem is that it’s not very easy to define who is part of a nation, so nations tend to make the definition pretty broad and allow those inside the definition to do certain things, but rarely require them to do anything. The most common example is that countries allow their citizens to live in the country without restriction, but they don’t require them to live there if they don’t want to (the only current exception I can think of is North Korea). Other examples are military service, jury duty and mandatory voting, but in all of these cases countries defer or exempt citizens living abroad (even the US exempts dual citizens abroad from military service in the case of a draft, and exempts nonresidents from jury duty).
In my opinion, the problem is not in the definition of citizenship, it’s in the requirements associated with it. In the case of the US, it’s taxation and financial reporting.
@SwissPinoy, I wrote the author of the piece I linked to offering to do the translation into French. I’m not as good at English to French as I am from French to English but for a few really good and pertinent articles like your flowchart I’d be willing to put in the effort. I’m just rapidly coming to the realization that as long as most of this information is solely in English it’s going to miss an awful lot of Accidentals. I’m starting to have a lot on my plate too – I’m doing work for AARO (I’m the new editor of their newsletter) and I may have a part-time job come September. But I would really like to try and get some articles published here in France about FATCA, citizenship-based taxation and the like and there is just no point in trying until I have good translations. I won’t promise anything but I’ll see what I can do.
I find one statement in .what Mr. Flott has written difficult to understand:
He states “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.” There are several million US citizens born and raised in the US who have never traveled abroad and therefore have never taken out US passports. Having a US passport is proof of US citizenship, but it is not a requirement for US citizenship. The US Government does not force any US citizen to take out a US passport in order to prove that they are a US citizen. A passport is required only if departing the US to travel abroad and to reenter the US.. There is no requirement that a US citizen born abroad who has never traveled to the US to take out a US passport, at least that I am aware of. Please correct me if I am wrong.
It is interesting to note how, within my memory, this proof of US citizenship issue has inverted itself 180 degrees. It used to be that there were many abroad who struggled to prove their US citizenship whereas today there are many in exactly the same circumstance who are struggling to find reasons why they do not hold US citizenship.
Rarely today do we hear of persons born abroad struggling to substantiate that they are US citizens from birth. But there are exceptions. One I am familiar with is the case of the children to a US citizen father and his non-citizen common law wife. According to US nationality law children born abroad to a US citizen father who is not legally married to their foreign citizen mother have no claim to US citizenship unless there is a signed agreement that the father will financially support the illegitimate child. In other words US citizenship is dependent on action of the US citizen parent, with the child having no voice in the decision whatsoever.
In the case with which I am familiar the American citizen father never signed any such agreement. However he did live with their mother in a common-law relationship and supported their children. Finally, after several years and many trips from the remote Amazon Jungle area where they reside to visit the US consulate in Brasilia, he was successful in registering his Brazilian-born children as US citizens. Perhaps DNA may have made this possible in spite of the wording of the nationality law, but I do not know so am only speculating
ACA has had several cases in which someone who was an accidental American but had never gotten a passport or claimed US citizenship, applied for a work permit in the US because he or she got a job there. The US asked many questions about birth and parents and came back saying, you can’t have a work permit, you’re a US citizen. If you want to work in the US, please apply for a US passport.
So someone might not be a self-executing US citizen (lovely term when you think about it, rather suicidal ?) but that doesn’t mean that the US doesn’t consider them US citizens.
@Swiss Pinoy,
What a terrific resource! Thanks for your work!
As I’ve written before, there is a category of people who are US nationals but not US citizens. They seem to have the best of both worlds: they can live and work in the US without restriction, use a US passport and receive US consular protection abroad, but they are not US persons for tax purposes, or taxed on worldwide income by the US, unless they actually reside in the US. They don’t have other rights of citizenship, like being able to vote in the US or to petition for foreign relatives to immigrate to the US, but they can apply to become US citizens if they want after living in the US for 3 months. The status of US national without US citizenship is only available for people from American Samoa, and those from the Northern Mariana Islands who didn’t want to become US citizens when the islands became a US territory in 1986.
However, it seems that some American Samoans don’t quite understand the value of their status. A group of American Samoans recently filed a lawsuit asking the US government to automatically grant US citizenship to all people born in American Samoa, as it occurs for the other US territories. The governor of American Samoa opposed the lawsuit, saying that citizenship should be a choice, and because of a possible impact on local land tenure. The American Samoan delegate to the US Congress also opposed the lawsuit, proposing instead to eliminate the requirement that American Samoans reside in the US for 3 months before they can apply for US citizenship. Both stressed that citizenship should be an individual choice and that it should not be forced on anyone. The lawsuit was eventually dismissed.
Some of you may be thinking, can I renounce or relinquish US citizenship and keep only US nationality? No. Tenchically, you don’t renounce US citizenship, you renounce US nationality, of which US citizenship is a subset. That’s why the certificate is called Certificate of Loss of Nationality, not citizenship. US law doesn’t allow a person to renounce or relinquish only US citizenship. But I guess it wouldn’t be a bad idea, since those who renounced would be able to keep using a US passport, travel to the US without restriction, not be subject to US taxation and reporting requirements while living abroad, and resume US citizenship later if they wanted.
By the way, the fact that US nationals without US citizenship can also use a US passport, use US consular services and receive US consular protection abroad, and are able to travel to the US and live there without restriction, while not being subject to US taxation on worldwide income while residing abroad, proves that the argument that the “benefits of citizenship” justify taxation doesn’t make any sense. These things are not benefits of citizenship, they are benefits of nationality. The only benefits of citizenship specifically that I can think of are voting and petitioning for foreign relatives to immigrate. The constitution prohibits enforcing taxes for voting, and immigration processes are completely supported by fees. There is absolutely no logical justification for US citizenship-based taxation.