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?
@YogaGirl
I take your points,and I am sure I am nit-picking here, but feel I must add….
When you say, the current Congress is “on track to accomplish even less than they did last year and that was a record breaker in terms of lack of productivity.”, I would have to say, how do we measure productivity, and do we want more of it?
Productivity have us FATCA and Obamacare in its current form.
If productivity is more tax code changes heaped upon the incredible complexity we currently have, than no thank you. If productivity means new statutes 1000s of pages long that no one reads with all kinds of terrible provisions buried within them unrelated to the bills main subject like FATCA and Reed-Schumer ‘Ban them” amendments, well I am not cheering this productivity.
If productivity is measured by new K-Street Lobbyists writing their pet ideas and handing them over to their favorite bought off Congressman to be added to an appropriation bill, well leave that productivity in the gutter on K-street?
Frankly, without serious reform of the entire legislative process and fundamental changes in the rules Congress has created for itself, I don’t want more “productivity” out of them. I want gridlock as the only answer to stop the stupidity and Lobbyist money and influence.
This was the ideal…..
https://www.youtube.com/watch?v=_TI8xqLl_-w
and it has been replaced with this…
wouldn’t it be unique if they were to start taking responsibility to repeal old bad laws?
Just Me, Productivity in terms of what Congress itself does not what the minions spawned by the different agencies that Congress is seemingly aware of do.
But FATCA and Obamacare are products of several years ago that are only just coming online, so technically, they don’t count for the current year’s work load.
However, they do mindlessly stamp okay’s on for additions to long ago “accomplishments”, they just haven’t done anything lately that counts as “new”. Potato/potahto, I guess.
Mark, repeal bad law? I am sure that hasn’t happened in my life time and my life is beginning to add up in dog years.
Yea Mark, I would love to see productivity measured in repealing of old bills. I mean really, do we need anything new, until some of the old is retired? We can’t just pile on endlessly and survive. There should be some maximum cap, and nothing new added until an old bill is sunsetted for good.
In Afroyam (1967) SCOTUS established the centrality of the assent of the individual in citizenship in that the government cannot take away citizenship without the assent of the individual. How then can the government impose citizenship without the assent of the individual?
Thanks, TomOn. Good to hear from you.
Great comment. What does common sense have to do with the USA and its citizenship-based taxation?
That we have to live our lives branded as “criminals” or to turn into ‘US criminals (with the blessing of our own countries) in our work-arounds to live normal and contributing lives in the societies we choose to live is ABSURD and IMMORAL.
@TomOn, Ironic that you cannot choose the citizenship with which you are born. The US Nationality Law does that for you. Likewise no third party – be it a parent or anybody else – can do anything to cause you to lose your US citizenship, even if you are mentally incompetent and under the care of a guardian. You must deliberately do this yourself.
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@UScitizenabroad, Thank you for the permission to reprint. Same goes for you – if you see anything on the Flophouse you like then go for it!
@Victoria
You can get a wordpress plugin that will give people the option to read all posts in their language. I am actually going to move my blog to wordpress.org so I can use this.
Not entirely sure what the quality of the translation is – but anything is better than nothing and at this point there are hundreds and hundreds of valuable posts on blogs throughout the Expat World.
Concerning those Canadian bank accounts we share with our children. Under FATCA, will the indicia that nails us as being US citizens (both former and present) require our children to prove to the bank that they weren’t registered as US citizens, just as you will be required to prove you aren’t a US person with a CLN? It is likely that we or our children will have to pay a fee to DOS to provide a document saying that no citizenship was issued for that child, just as my mother at one point had to obtain a statement from DOS to prove to the Canadian government that she hadn’t become American during the years she lived in the US.
Financial institutions may just say that “the absence of evidence is not evidence of absence, in other words, we will be expected to incur the cost and spend the time required to prove that something doesn’t exist (a negative) to them.
@Bubblebustin, if you are/were a US citizen when your children were born in Canada then your children are dual US citizens as well as being citizens of Canada. The fact that they were not registered as US citizens does not mean that they are not US citizens. Registration with a US consulate abroad does not confer US citizenship and failure to register does not deprive them of US citizenship. Registration allows them to have a registration document which substantiates their US citizenship.
The best thing to do is for your children to renounce their US citizenship as soon as they are old enough to make this decision on their own, preferably while they are still young enough, before their income level has reached the minimum amount which US tax laws make it obligatory that they file US tax returns.
TomOn, they can impose citizenship in much the same way that parents do when they naturalize in another country and their minor children are granted citizenship at the same time.
Roger, the true irony is that I can impose citizenship on my child via naturalizing in Canada and that’s okay with the USG and Canada, but I cannot relinquish her USC when I give up my own. It’s seems that there are govt imposed limitations on my acting on my child’s behalf that are decidedly not about what I think/know is best for my child but what the USG has decided is best for the USA.
I hope I am not giving the USG any ideas, but if I don’t have the right to relinquish my child’s USC then why do I have the right to make her a dual citizen by applying for citizenship in Canada on her behalf? It seems to me that one thing is very like the other in terms of “life-altering”, is it not? Shouldn’t acquiring a second citizenship (outside of an act birth/mixed marriage situation) also be something that someone should only be allowed to do for themselves?
Thanks for again talking about this, Roger.
That appears to be the law, but from this thread you will see that it has been reported to Isaac Brock otherwise from US consulates / embassies.
I am right now preparing another email for Sylvia D. Johnson, General Consul, Ottawa Embassy, saying:
Yoga Girl, you replied to Roger before me but we’re on the same wave length. It absolutely should be something our children decide for themselves (or their Parent, Guardian, Trustee) in the case of someone mentally incapacitated. I’m trying to get an definitive answer; it is difficult!
@Roger “The fact that they were not registered as US citizens does not mean that they are not US citizens.”
Is this what is meant “by law” and not “by application”. If so, where is it written?
I was about to answer this before I saw Roger’s comment to you, bubblebustin. Yours is a great (and troubling) question — why haven’t they covered this possibility in the jihad?
That is very well written calgary, and you pose crucial questions to the Consul General. Bravo. This is probably something inconvenient for them to confront and consider, and probably reluctant to have to answer definitively. Good for them to be aware that you and others with the same question have no intention of disappearing. The US has a lot to answer for, and in their arrogance, offer no clarity or assistance – and push the onus on the individual to figure out and to comply – and take the consequences – usually punitive. They would be happiest if we would just accept whatever they proffer or impose – no matter the significant effect on our lives and the lives of our minor children and dependents.
What a lioness your son has for a parent!
@YogaGirl, Yes it is totally ironic, but unfortunately this is the US law and until the other nations of the world arise and with one voice tell the US government that they do not recognize that the United States has any right to violate their sovereignty by subjecting its dual citizens who were born in another country to a US parent to US income tax it is unlikely to stop. The might also enact legislation making it illegal for residents of that country to remit tax payments to any foreign country on income from sources within that country.
To paraphrase the oft-quoted words of Karl Marx: “Nations of the world unite! You have nothing to lose but the fiscal chains imposed on you by a certain identifiable bully.”
Perhaps what is required is a United Nations Security Council resolution condemning US citizenship-based tax laws as a violation of the UN;’s Declaration of Universal Human Rights, just like it did when approved a resolution condemning Eritrea for this same tax policy. And then the governments should communicate to the US Ambassadors in their countries, just like Canada did to the highest level Eritrean diplomat in Canada, its consul general in Toronto, that unless Eritrea ceased this practice he would be declared persona non-grata and expelled from the country And indeed he was expelled if I am not mistaken.
What makes the US situation more complicated is the Saving Clause which is included in most US tax treaties with other governments in which the other country acknowledges and accepts that the US has the right to subject “US persons” resident in that other country to US taxes just as if there were no tax treaty.
That would require other countries to renounce this Saving Clause condition in the tax treaties they have executed with the United States..
@badger, Here is a “copy and paste from Wikipedia which summarizes, fro the US nationality law, the situation of US citizenship for persons born abroad to either one or two US citizen parents. Notice that it does indeed use the world Automatic.
“Through birth abroad to United States citizens[edit]
See also: jus sanguinis
Birth abroad to two United States citizens[edit]
A child is AUTOMATICALLY granted citizenship if:
1.Both parents were U.S. citizens at the time of the child’s birth;
2.The parents are married; and
3.At least one parent lived in the United States prior to the child’s birth. INA 301(c) and INA 301(a)(3) state, “and one of whom has had a residence.”
The FAM (Foreign Affairs Manual) states “no amount of time specified.”
A person’s record of birth abroad, if registered with a U.S. consulate or embassy, is proof of citizenship. They may also apply for a passport or a Certificate of Citizenship to have their citizenship recognized.
Birth abroad to one United States citizen[edit]
A person born on or after November 14, 1986, is a U.S. citizen if all of the following are true (different rules apply if child was born out-of-wedlock):[8]
1.The person’s parents were married at time of birth
2.One of the person’s parents was a U.S. citizen when the person in question was born
3.The citizen parent lived at least five years in the United States before the child’s birth
4.A minimum of two of these five years in the United States were after the citizen parent’s 14th birthday.
INA 301(g) makes additional provisions to satisfy the physical-presence requirements for periods citizens spent abroad in “honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization.” Additionally citizens, who spent time living abroad as the “dependent unmarried son or daughter and a member of the household of a person” in any of the previously mentioned organizations can also be counted.
A person’s record of birth abroad, if registered with a U.S. consulate or embassy, is proof of citizenship. Such a person may also apply for a passport or a Certificate of Citizenship to have a record of citizenship. Such documentation is often useful to prove citizenship in lieu of the availability of an American birth certificate.
Different rules apply for persons born abroad to one U.S. citizen before November 14, 1986. United States law on this subject changed multiple times throughout the twentieth century, and the law is applicable as it existed at the time of the individual’s birth.
For persons born between December 24, 1952 and November 14, 1986, a person is a U.S. citizen if all of the following are true (except if born out-of-wedlock):[8]
1.The person’s parents were married at the time of birth
2.One of the person’s parents was a U.S. citizen when the person was born
3.The citizen parent lived at least ten years in the United States before the child’s birth;
4.A minimum of 5 of these 10 years in the United States were after the citizen parent’s 14th birthday.
For persons born out-of-wedlock (mother) if all the following apply:
1.the mother was a U.S. citizen at the time of the person’s birth and
2.the mother was physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the person’s birth.[9] (See link for those born to a U.S. father out-of-wedlock)[8]”
This indicates a few caveats whereby the parent may not be able to transmit US citizenship to a child born abroad, relating to whether or not the US citizen parent had lived in the US for a certain minimum amount of time, etc. But there are not many exceptions.
@Roger, it will be interesting to see if that is what the Consul General provides as an answer. In the meantime, there is even less incentive for parents to register their children born ‘abroad’, or to provide any information or records which might assist the US in determining whether they lived in the US the requisite amount of time to pass on their unwanted US status. In fact, the very opposite. IF the situation is at all in doubt, why would anyone assert as default something which would condemn their children to US taxable status – and prevent/penalize their eligibility to save tax free in an RESP or other Canadian registered account?
@YogaGirl
This is not my place to interject…but in my readings I came across a sample letter in FAM dated 2009 that seems to ALLOW for minors to “renunciate” (as long as they are deemed competent)…as long as they also recognize that they can reclaim citizenship by 18 1/2 (notice the automatic failure clause)
I am not taking a position either way…but you might want to review it before concluding that you have no options…
read down to the bottom = sample letter
http://www.state.gov/documents/organization/120538.pdf
@YogaGirl
also note: from that FAM
g. While you are not making a clinical diagnosis, your description of the individual’s demeanor, behavior, statements, and your assessment of the person’s mental and emotional state are very important in making a determination whether the person is capable of formulating the intent to lose U.S. nationality and/or is acting voluntarily. This assessment must be sent to the Department (CA/OCS/ACS) as part of your consular officer opinion.
@Calgary411 You might also find the answers to some of your questions in these paragraphs…
http://www.state.gov/documents/organization/120538.pdf
Thanks, Benedict Arnold, I am aware though of the possible loophole although it seems to hinge a lot on whoever my child would be interviewed by at a US Consulate and whether they deemed her “competent” and unduly influenced though how you can raise a child in another country and not have that count as an influencing factor, depending on the amount of anti-Americanism in said country, is beyond me. I have noted before that the Canadian school system is riddled with it. Sometimes to the point where even I am offended and I don’t offend easily on behalf of the USA.
Calagary411, I hope you get a reply but I wouldn’t be surprised if you did not. The last thing that the USG is going to allow are on the record written clarification on this particular point. They are on shaky ground with the presumption of USC where foreign born with one foreign parent are concerned anyway. Granting these people the right to seek citizenship at a certain point is one thing but forcing it down their throats is quite another. As long as they don’t look like they are doing exactly what they are doing, the ire is individual and unorganized. Coming out and saying, yes, we do this isn’t an option. Of course, going the other way and saying, no, citizenship involves an active claim isn’t an option for them either b/c that would mean that a whole of people they are now pressuring and enlisting govt’s via IGA’s to hunt for – suddenly aren’t viable targets anymore. Consulates are probably being told to just ignore these types of queries and lie when they are confronted face to face.
Thanks for providing this, Benedict.
I’ve been previously advised by the US Consulate in Calgary that,
and, from a previous comment regarding my son and the stance of US Department of State:
At any rate, my son does not have the capacity to understand the concept of citizenship or the consequences of losing such. Only the citizen can renounce such citizenship, not those who represent his best interests. There can be compelling reason — but that is defined as things like “life or death”, which of course does not apply.
This is not something Canada has any control over — US law for the protection of US citizenship.
My correspondence with Sylvia D. Johnson at the Ottawa, Canada US Embassy resulted from conversation on this thread: http://isaacbrocksociety.ca/2013/05/31/we-want-to-know-once-and-for-all-for-sure-is-it-true-legal-policy-a-choice-the-us-cannot-force-anyone-who-is-born-outside-of-the-us-to-acquire-us-citizenship/
We all know what the US regulation says. We also have reports that some consulates / embassies have given conflicting information to those who came in to register to then be able to renounce. Incorrect information can be very, very, very detrimental to those it is given to.