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?
@ShadowRader…
Yours is an VERY interesting comment. After living my entire life not thinking much about what being an American meant, let alone about the concept of Nationality vs the subset of Citizenship, times have definitely changed. An new applicants into the club need to think carefully about this now. In light of Obama offshore jihad years, I have found myself coming to a conclusion similar to your statement citizenship should be an individual choice and that it should not be forced on anyone. It is akin to that religious idea, that babies shouldn’t be baptised into a church, a child at the age of consent should make the baptism decision themselves. The Catholics have one practice, and the Protestants to varying degrees have the other.
Now, to be truthful, I hadn’t really considered the question of Nationality separate from Citizenship or passport issues. I will have to mull that one over a bit more, but it does put the Citizenship taxation issue in a different light. Instead of Citizenship taxation perhaps it should be called Nationality taxation, because you have to renounce the later to escape the former? Thanks for kicking the brain synapses into gear this morning. You give me something new to ponder today on my hike.
BTW, yesterday I handed out 10 warnings (think I should start keeping count) to a nice group of Chinese Canadians down from YVR hiking on Mount Baker. There were two (husband and wife) that were U.S. Citizens now living in Canada, and it amused me that they were grousing about US taxation, the complex forms like the “trust one” said the wife, and how expensive it was to have a professional to fill them all out. As I said to the others, come visit and shop at Costco, but stay away from that designation of “U.S” person if you can help it. I guess I was telling them, don’t get into the baptismal pool until you really know what’s in that water you are going to be immersed in.
@Roger Conklin
Why the difference between mothers and fathers whose children are born out of wedlock? According to Wikipedia:
“This distinction between unwed American fathers and American mothers was constructed and reaffirmed by Congress out of concern that a flood of illegitimate Korean and Vietnamese children would later claim American citizenship as a result of their parentage by American servicemen overseas fighting wars in their countries.[12] In many cases, American servicemen passing through in wartime may not have even learned they had fathered a child.[12] In 2001, the Supreme Court, by 5–4 majority in Tuan Anh Nguyen v. INS, first established the constitutionality of this gender distinction.”
In other words, US soldiers themselves can sow their seeds with as much responsibility for the outcome as those who choose to go to war.
This is what is so disappointing and disturbing about this posting and string: My late friend, Andy Sundberg, founder of American Citizens Abroad, worked tirelessly during the 70s and 80s to change US law to be much more inclusive than it had been. One of the reasons was his daughters were born effectively “stateless”; he, an American, his wife, a Frenchwoman, gave birth to their daughters while living in Switzerland.
He found that there were quite literally tens of thousands of people in similar circumstances.
Of course, the Cold War was still on, and many accidental Americans – and their parents – were rightly concerned about being able to be protected by America should anything happen. Andy felt that they should be granted a much broader interpretation to widen the blanket.
Andy always felt that USA should also mean “the universal spirit of America”. Little did he realize that our own government, through the spiteful acts of narrow-minded members of Congress and a vindictive little s**t of an IRS Commissioner would turn all of this into a nightmare for so many he spent years and thousands of dollars of his own money doing.
When I spoke to him two weeks before his fatal heart attack, this is what weighed heaviest on his mind. Indeed, it is my contention that he died of a broken heart because we’ve come to a point where American nationality is seen as a curse rather than the blessings of everything we grew up admiring about being American. I share his broken heart about this issue – even I have advised my godson, an accidental American born of British parents in NYC, that he should consider giving it up because of the gestapo harassment of the IRS.
As someone whose family traces its roots back to 1630, and whose ancestor was a martyr during the Revolution to establish our great country, I simply can’t believe I would EVER come to this point in the life of our nation and it physically pains me.
Victoria, talk to the French press. That’s the most effective way to get the word out to more French-speaking accidentals in France.
Thank you Shadow Raider for highlighting the unique citizenship/nationality status of Samoans. There are indeed a few “niches” in the US laws with respect to nationality and taxation. One other is the fact that US citizens who are bona-fide residents of Puerto Rico are not subject to the US Federal Income Tax on income from Puerto Rico sources. unless they are employed by the Federal Government. This applies to all US citizens residing in Puerto Rico regardless of where they were born. Residents of Puerto Rico do not have the right to vote in US presidential elections, but they do elect a delegate to Congress. This delegate can introduce legislation and participate in debate and discussions in the House, but cannot vote on any legislation including bills which he or she has sponsored and introduced.
It is also interesting that the Immigration Reform bill which has just been approved in the Senate includes a requirement that immigrants must speak English in order to qualify for naturalization as US citizens. However there is no requirement, constitutional or otherwise, that a knowledge of English is a prerequisite for US citizenship. Spanish is the official language of Puerto Rico. Public education in Puerto Rico is in Spanish, not English although English is taught as a foreign language. Having lived in Puerto Rico it is a fact that there are many Puerto Ricans who do not speak English, yet there is no question that they are US citizens.
Victoria, Jane Doe belge,
… if the French press are more effective in telling the story than either the Canadian or the US on this continent. Many journalists seem gagged.
Plato, that Andy Sundberg had to leave this world seeing the insanity of the US using all of his hard work in a now punitive manner is tragic. A broken heart indeed for him to see that in this day and age American nationality / citizenship is a curse. Rest in peace, Mr. Sundberg.
@Calgary, It’s been on my “to do” list for some time. I’ve been slowed down the past few weeks while my daughter passes her Bac. 🙂 Thank God it’s over (results next week on the 4th of July) and tonight she and her father are leaving for Japan for some R & R.
I’m still trying to figure out the best way to frame the message to a French/Belgian audience. Jane, maybe we could work on something together? I’m still working on the MEP list (no luck so far) but I did find out that the King of Thailand is an Accidental. See this piece from a really great blog out of Thailand:
http://americanexpatchiangmai.com/great-affection-thai-people-king/
Dear Victoria,
Your “to do” list gets longer and longer. Some of USCitizenAbroad posts, written so easy to understand — like yours — might be useful to translate. Pacifica’s Consulate Report Directory has much valuable information. And, you have to put yourself in the shoes of someone who knows nothing about this horror and how they might best comprehend.
Thanks for all you do, fellow ex-Seattleite. I hope you are feeling well and gaining needed energy these days.
…and good luck to your daughter — she’ll likely come through in flying colours / happy travelling with Dad!
@Plato
Just wanted to thank you for your above comment. I am going to tweet it as far as possible. By the way if you want a bit of entertainment featuring that IRS commissioner you should go to YouTube and put in:
“Shulman IRS”
The man will be revealed for who he really is, making it clear that your description is too kind.
@Calgary
@Victoria
Feel free to use any of the posts on my blog (attribution appreciated).
bubblebustin, the father vs mother passing on citizenship was born of racism as Roger points out and probably a little bit of embarrassment b/c the illegitimate kids of WWI and II were a lot easier to ignore as they blended in. The downsides of war – soldiers littering – literally – other countries is bad for Uncle Sam’s puritan, holier than anyone image.
But the idea of the maternal line being the one that conferred status isn’t new. After all, you can only ever be sure of who your mother is not your father – at least back in the days of yore.
This conversation has prompted a lot of stray thoughts for me. First that the US has probably always wanted to tax the crap out of its expats but its only recently that the technology has made it easy to do. Second that citizenship has morphed out of the nationality idea which came from ethnic/tribe origins and that the increased means of travel have set the idea of who is a citizen on its ear. In North America in particular, you can’t ever know for sure who is American or who is Canadian by simply looking at them or listening to them.
The world is in a great deal of flux again and human beings, while adaptable, don’t like to change. There is always collateral damage while things are being sorted out.
I still think that the solution is in our home countries and not in getting the US to give up on citizen based taxing. It won’t as long as other countries are willing to play along.
Personally, I think that countries should look at corporations more closely than individuals b/c the real money is there. Individuals are a wash or worse in terms of expense to keep track of vs profit. And businesses are the real money sucks in terms of what is being lost from the US coffers (that and the fraud and waste in programs like Medicare, Medicaid and Social Security).
Just look at that “disabled” veteran who was reamed out by Tammy Duckworth (an actual disable veteran) this last week. His company got a half million in grants from the govt through a VA program for disabled business owners despite the fact that his “disability” was acquired in military school and he never served in any branch of the armed forces.
But the current immigration bill is mostly about establishing a cheap labor, somewhat second class legally labor force. If it were about truly reforming, emigrants and issues surrounding the ability to give up status would be included as well as finally nailing down who is and is not entitled to USC via birth and parentage and adopting the more common sense ways of doing this that most other countries have already adopted.
@Roger, The US constitution allows Congress to regulate naturalization, and US law states that naturalized citizens must be able to communicate in English in a very basic level. In practice, the immigration officer simply talks to the person in English and asks the person to read and write a simple sentence in English. The immigration bill adds that illegal immigrants must already satisfy this requirement just to become permanent residents, but for legal immigrants the requirement remains only for naturalization. I see that this requirement can be controversial in Puerto Rico as the main language there is Spanish, but the law only requires a very basic knowledge of English. Also, there is no requirement that US citizens by birth know English, but that would be a bit extreme as people don’t speak any language when they are born…
@Roger Conklin, from the Citizenship Through Parents guide, I get the impression that the an agreement that the father may financially support the child applies when the child is living in the US.
@YogaGirl, The solution in your countries would be to ask them to renegotiate their tax treaties with the US to remove the saving clause. I’m not sure if it would stop the filing requirements, but it would stop the taxes. By the way, I don’t understand why no country has ever complained about the saving clause.
“A caller from Lubbock, Texas, on Friday told conservative radio host Rush Limbaugh that some illegal immigrants in his area don’t want amnesty because it means federal income tax and fiercer competition for cheap labor.”
http://www.theblaze.com/stories/2013/06/28/rush-limbaugh-wait-until-the-republican-party-hears-about-this/
And so the impetus to remain illegal will remain!
@Plato,
I hear you. My ancestors sailed to America on the Mayflower and helped to settle the West. This can be read in our family book here. My family is listed on page 88, but my name is not there since I was born a bit later. Tip. Look for the words: “Swiss” and “Banker”.
So, my American roots are older than the US government.:)
@SwissPinoy, in reading the official on-line information from the State Department it appears that a paternal support agreement up to the age of 18 is a requirement for an unwed American citizen father to transmit US citizenship to a child born abroad, regardless of whether the child lives inside or outside of the US. Here is the link:http://travel.state.gov/law/citizenship/citizenship_5199.html
In the particular case that I cited in Brazil, the illegitimate children live in Brazil with their father and mother who have a common-law marriage relationship since they have never been legally married to each other. . Somehow, after a great deal of time and effort, the father was able to confirm US citizenship for all of them and. although when I talked to him they did not yet have US passports he is hoping apply for passports for them to bring them to the US, not to live but to visit, in the not too distant future. The family has no intention of relocating to live in the US. Now that their US citizenship has been confirmed a US consulate abroad will not issue a visa so they can use dual citizen Brazilian passports to enter the US. They can only enter and leave the US using US passports.
@Roger, thanks. I’ve updated the flowchart to reflect this.
I thought I would share this memo sent to me from my daughter living in the UK upon her hearing of my so called US Citizenship boondoggle…
I hope this injects a bit of light-heartedness into this Canada Day Weekend… 😉
A MESSAGE FROM THE QUEEN
To the citizens of the United States of America from Her Sovereign Majesty Queen Elizabeth II
In light of your failure in recent years to nominate competent candidates for President of the USA and thus to govern yourselves, we hereby give notice of the revocation of your independence, effective immediately. (You should look up
‘revocation’ in the Oxford English Dictionary.)
Her Sovereign Majesty Queen Elizabeth II will resume monarchical duties over all states, commonwealths, and territories (except North Dakota, which she does not fancy).
Your new Prime Minister, David Cameron, will appoint a Governor for America without the need for further elections.
Congress and the Senate will be disbanded. A questionnaire may be circulated next year to determine whether any of you noticed.
To aid in the transition to a British Crown dependency, the following rules are introduced with immediate effect:
1. The letter ‘U’ will be reinstated in words such as ‘colour,’ ‘favour,’ ‘labour’ and ‘neighbour.’ Likewise, you will learn to spell ‘doughnut’ without skipping half the letters, and the suffix ‘-ize’ will be replaced by the suffix ‘-ise.’ Generally, you will be expected to raise your vocabulary to acceptable levels. (look up ‘vocabulary’).
2. Using the same twenty-seven words interspersed with filler noises such as ”like’ and ‘you know’ is an unacceptable and inefficient form of communication. There is no such thing as U.S. English. We will let Microsoft know on your behalf. The Microsoft spell-checker will be adjusted to take into account the reinstated letter ‘u” and the elimination of ‘-ize.’
3. July 4th will no longer be celebrated as a holiday.
4. You will learn to resolve personal issues without using guns, lawyers, or therapists. The fact that you need so many lawyers and therapists shows that you’re not quite ready to be independent. Guns should only be used for shooting grouse. If you can’t sort things out without suing someone or speaking to a therapist, then you’re not ready to shoot grouse.
5. Therefore, you will no longer be allowed to own or carry anything more dangerous than a vegetable peeler. Although a permit will be required if you wish to carry a vegetable peeler in public.
6. All intersections will be replaced with roundabouts, and you will start driving on the left side with immediate effect. At the same time, you will go metric with immediate effect and without the benefit of conversion tables. Both roundabouts and metrication will help you understand the British sense of humour.
7. The former USA will adopt UK prices on petrol (which you have been calling gasoline) of roughly $10/US gallon. Get used to it.
8. You will learn to make real chips. Those things you call French fries are not real chips, and those things you insist on calling potato chips are properly called crisps. Real chips are thick cut, fried in animal fat, and dressed not with catsup but with vinegar.
9. The cold, tasteless stuff you insist on calling beer is not actually beer at all. Henceforth, only proper British Bitter will be referred to as beer, and European brews of known and accepted provenance will be referred to as Lager. South African beer is also acceptable, as they are pound for pound the greatest sporting nation on earth and it can only be due to the beer. They are also part of the British Commonwealth – see what it did for them. American brands will be referred to as Near-Frozen Gnat’s Urine, so that all can be sold without risk of further confusion.
10. Hollywood will be required occasionally to cast English actors as good guys. Hollywood will also be required to cast English actors to play English characters. Watching Andie Macdowell attempt English dialect in Four Weddings and a Funeral was an experience akin to having one’s ears removed with a cheese grater.
11. You will cease playing American football. There is only one kind of proper football; you call it soccer. Those of you brave enough will, in time, be allowed to play rugby (which has some similarities to American football, but does not involve stopping for a rest every twenty seconds or wearing full kevlar body armour like a bunch of nancies).
12. Further, you will stop playing baseball. It is not reasonable to host an event called the World Series for a game which is not played outside of America. Since only 2.1% of you are aware there is a world beyond your borders, your error is understandable. You will learn cricket, and we will let you face the South Africans first to take the sting out of their deliveries.
13.. You must tell us who killed JFK. It’s been driving us mad.
14. An internal revenue agent (i.e. tax collector) from Her Majesty’s Government will be with you shortly to ensure the acquisition of all monies due (backdated to 1776).
15. Daily Tea Time begins promptly at 4 p.m. with proper cups, with saucers, and never mugs, with high quality biscuits (cookies) and cakes; plus strawberries (with cream) when in season.
God Save the Queen!
PS: Only share this with friends who have a good sense of humour (NOT humor)!
It should be noted that the US taxes US citizens resident outside of the United States regardless of whether or not there is a tax treaty that includes the Savings Clause. It appears to me that the Saving Clause is for the purpose of confirming the acquiescence of the other country to the US practice of extraterritorial taxation and thus remove any doubt that the sovereignty of that country is being violated with the full consent of that other country. But regardless of whether there is or is not a tax treaty as a US citizen resident abroad you are required by US law to file US tax returns and any and all US taxes and penalties due in US dollars. If the foreign exchange control regulations of the country where you reside do not include provisions for converting its currency into US dollars, then that is YOUR problem. If you have to engage in illegal currency transactions in order to fulfill your US tax obligation then do not expect any help or sympathy from the US consulate. if you are arrested and thrown in jail. You will be told that it is because of your own stupidity that you, as a US citizen, have chosen to reside in a country with those kinds of foreign currency conversion regulations.
Back in 1976 when I lived in Brazil which at that time had very strict foreign currency control regulations. the enactment of the Tax Reform Act of 1976 suddenly created for me a tax obligation in dollars that I did not have the day before President Ford signed that legislation. I had to make a business trip to Chicago so while I was there I visited the IRS office in the Loop to obtain advice don how to deal with this dilemma. I was ushered into the office of the person in charge of that office who listened attentively to my questions. Her response was point at the door and order ,me to ;leave because I was wasting her time. She punctuated her response by emphasizing my stupidity.
Roger, oh, I know that the US expects filings regardless, but it can only do this b/c of the mass cooperation it gets from other countries. If these countries were to suddenly decide not to engage in basically one-sided treaties and work around the US financial sector (a huge under-talking and long-shot in the short term), the US would have to change or pound sand.
everything old is new again, empires always need new sources of money
http://nomadcapitalist.com/2013/06/27/the-ancient-second-citizenship-no-one-asked-for/
@YogaGirl, Yes the mass cooperation of other countries makes it possible for the US to tax persons with US citizenship who live within the sovereign borders of other countries. This is the result might making right. You play in accordance with the rules we established. The US has bullying power that nobody seems to want to question in this area. Tiny Eritrea, which is the only other nation that follows the example of the US in this regard was condemned by the UN Security Council by resolution 2023 (2011) on December 5, 2011 because this practice is a violation of the UN’s Declaration of Universal Human Rights which guarantees that every person shall have the right to freely leave and return to any country, including his own.
But obviously what is sauce for the goose is not sauce for the gander since it was the US Ambassador to the UN Susan Rice who “led the charge,” so to speak, in securing this condemnation resolution. There were no dissenting votes.
All nations are equal, but to paraphrase the late George Orwell, some nations are just more equal than others.
Roger, it’s getting interesting though now with tiny rebellions here and there (the Swiss for example) and the demand for reciprocity. The whole spying on EU nations that’s come to light on the heels of the general NSA scooping of email and phone records that extended to citizens of other nations by the US. It’s like watching someone get hacked to death by paper. Little cut here. Little slice there. Might not look like much but damage is being done.
Read an interesting article on the current US Congress and how they are on track to accomplish even less than they did last year and that was a record breaker in terms of lack of productivity.
In terms of any relief for expats, I don’t think we are at a tipping point in our favor yet but we might be getting there faster than it feels like. Can’t help but wonder what’s next? Syria? The official reaction to today’s uprising in Egypt (what an awesome sight of true democracy in action by the way)? Germany’s demands for an explanation as to why they are considered a lesser ally than Canada? (hint: the US has no allies.) Congress rejecting DATCA? Could be anything at this point.