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?
Can a leopard change his spots? I guess he must be able to if on the day before the retroactive citizenship law was enacted you were not a Canadian by birth, but as soon as the ink was applied that enacted the legislation you became a Canadian by birth.
Who ever concluded that you could not go back in time and redefine the outcome of an event that happened long ago was obviously wrong.
@ Roger Conklin
1…..2….3…..4…..5…..6…..7…..8….9…..10….
Pfffffffftttttttt……
Recognition of LAW: the action of laws considered as a means of redressing wrongs;
USCitizenAbroad,
Just want to give my very belated thank you for all the thought and analysis you have put into this important question!! I will use all you point out at some point if needed.
Still no response to my queries. Good thing I can’t hold my breath for very long.
I left a message on a Canadian immigration lawyer’s blog: What if someone under these circumstances doesn’t want to be a Canadian at birth? Waiting for an answer.
@bubblebustin, my guess at what his answer will be: If you don’t want to be a Canadian by birth then (1) don’t be born in Canada and (2) don’t be born outside of Canada to a Canadian citizen parent.
@Roger
I’m actually hoping he’ll give some kind of indication of what Canadian law says to whether the person in question has the option to refuse Canadian citizenship by not applying for the documentation or doing anything else that would make him/her a Canadian citizen.
Frustration abounds:
I still have not gotten a reply from Sylvia D. Johnson from the US Embassy, Ottawa.
Nor have my comments to the “The Accidental US Citizen” blog gotten out of moderation: Comments Still Awaiting Moderation — Flott & Co. PC — The Accidental US Citizen
@Calgary
The problem is that they need to be very careful about what they say. You may not get a response. In the interim I believe that if you were NOT born in the U.S. and you have never claimed U.S. citizenship (that you may have had a right to) that you:
Lie low. Take the position you are NOT a U.S. citizen.
@Bubblebustin, it does appear that it is easier to get out of Canadian citizenship if you were born outside of Canada than it is to get out of US citizenship if born outside of the US.
But at least the US citizen born outside of the US can only transmit US citizenship to his or her offspring born outside of the US if he/she has met certain minimum requirements of having resided in the US for a certain period of time. It occurs to me that this might be difficult to substantiate for some at least..
Thanks, USCA,
I certainly will do both — lie low and take the position my son is NOT a US citizen when and if I’m asked as shown here: http://isaacbrocksociety.ca/fatca/comment-page-29/#comment-422408 what my relationship is to the person for whom I hold a Registered Disability Savings Plan (RDSP).
I would like to have something very definitive from the USG for the possible conversation on that day. But if not, in my back pocket I will have your analysis, which I absolutely believe is what should be the case.
All who are affected here need to understand what you have given us http://isaacbrocksociety.ca/2013/06/29/accidental-americans-born-abroad-to-us-parents-and-not-registered-with-the-us-are-they-automatic-us-citizens-or-do-they-have-a-right-to-claim-us-citizenship-when-they-can-make-that-decision-as-an/comment-page-3/#comment-418500
The move after that is theirs — and the move after whatever theirs will be will be mine. I think I’ll be ready.
@calgary411, I’ve been waiting over a week now for a letter from the US which states that a check to me is legit so that I can cash it, and that’s not even the US government! If the form-filing-nation can’t even do something as logical, natural and simple as that, then you’ll never get a response. 🙁
Calgary, they really can’t give you a written response b/c it would become part of a paper trail record that could work against them in future. But, if I were you, I would just operate under the assumption that your son needed to present himself at a consulate and present evidence that supported his claim to USC so it could be evaluated and a judgement made, and since the USG requires that he do this himself, and be aware of what he is claiming, technically, his right is a non-issue. He can’t claim something he can’t understand anymore than he could renounce it, right? You aren’t allowed to do either for him, so if the USG wants to come after him, first they have to mount a case to prove he is a citizen in the first, which I really doubt they would bother with, nd if a financial institution wants to know his status, you can simply – and honestly really – say that he isn’t a USC. He is a Canadian born and raised.
imo, no consulate is going to touch your query with a ten foot pole. They know what a slippery slope it is because they can’t really go around and prove case by case that this or that child born in another country to an expat meets the criteria for citizenship, and they wouldn’t want this particular loophole becoming widely known. Their silence is – in a way – your answer and probably means you’ve found the Achilles Heel on their Trojan Horse.
@calgary411 – I would like to second what YogaGirl is saying and illustrate it with an example from my own experience.
Italy uses jus sanguinis in determining citizenship. Last year I found out that because my father was born before my Italian grandfather became a US citizen, I have been an Italian citizen since birth, even though my father never claimed his Italian citizenship. However, I must now prove this to the Italian authorities and doing so requires producing lots of documents and presenting them to the Italian authorities. I have met with the Italian consul and while my line of descent is clear, without all of the proper documentation, I cannot get official recognition that I am Italian, e.g., an Italian passport. Before I prove my claim to citizenship, I cannot exercise the rights that I am entitled to as an Italian.
Italy also requires Italians to travel into Italy on their Italian passport, but no one at the border is asking me if my father or grandfather was Italian.
As you have renounced, if you travel to the US with your son, you can tell the border guards the truth, that you are no longer American and that your son is fully Canadian. It seems unlikely that a border guard will start asking questions about when you renounced and when your son was born.
As for the tax issue, first, there is no official record/proof of your son as being American. Second, in my OVDI case, the IRS spent thousands of dollars in order for me to pay an extra $133 a year over 8 years. They know, as well as I do, that it was a waste of their time and money as well as a waste of my time and money.
Your son will likely owe something similar, or nothing at all. It is just not worth it to them to go after these small amounts of money. As further proof, I offer that when I was a self-filer, one year, I unknowingly made a very obvious declaration mistake of about $300 on my return. When I redid the returns for OVDI, my accountant advised me what it was and told me that it was so obvious to him on first glance that he was surprised that I was not contacted about it by the IRS. We assumed that the IRS knew and calculated that the hours spent to correct it would not have been worth the few dollars of tax they might have received.
Your anger at not being allowed to renounce on behalf of your son is fully justified, but I think you can let go of some of the fear. You have done everything to protect yourself and your family. The reality is that your son has not been able to document his claim to US citizenship and the risk the IRS will target him as a tax evader is low. I do not think there is any law requiring you as his guardian to document his citizenship, but I do not know. Again, your indignation is justified, but don’t fall into the fear trap the IRS has been aggressively setting since 2009 for Americans abroad. While, sadly, there is no certainty, the realities of your situation should be focused upon.
Thanks, YogaGirl and Not that Lisa,
I will not lose (but it doesn’t consume me so) my anger, for my son and for others like him who will be faced with this and — quite frankly what all “Accidental Americans” — live with now. It is not the border guards I fear and I likely will NOT be travelling across the border with my son for that and the fact that I have no desire to go there again or to spend any $$ there, except should I be needed in a time of health crisis of one of my remaining US siblings. I don’t want the risk of facing a confrontation at the border when I’m travelling with my son — alone I can now handle but not with them pointing a finger at him. They have won in barring our travel to the US for whatever reason, which we as a family do with more risk than any other family (with a non-US indicia) travelling to the US from Canada.
No, my fear is what I will be asked, as well as other Parents, Guardians, Trustees, by our own Canadian banks. What will it take to make the business of me and my family who are their Canadian clients more important than what they must certify to the US as they act as the offshore IRS agent? I really don’t know.
It does make my determination even stronger that I am ignored and don’t get an answer. Do they fear a highlighting of their human rights record, this aspect?
The US, besides being a bully, hides in not giving me and others a definite determination — an answer to our very simple question? Why are they giving incorrect information to anyone that comes to a US consulate or embassy, if it is incorrect? Why can they not let us know exactly what we must deal with? Why must we guess? Why must we have to think of work-arounds to unjust law? It appears more of US fear-mongering in a less obvious form.
The lion afraid of the mouse. Perhaps the US really does have a fear of this little old Canadian grandma, like the ones the former US Ambassador to Canada, David Jacobson, said the US was not looking for.
The US government and all of its departments are spineless bullies in so many ways. Or they would “stand up like a man” — or the strong democratic country they portray (by brainwashing) they are. Or, why won’t they just change their law to resident-based taxation, which would solve so much collateral damage? I don’t know but in my belaboured quest for simple common sense, I will continue to wonder and continue to lie low, my work-around.
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@Calgary411
I too believe that this is too hot a potato for them to touch, however I’m with you in insisting that we should have a definitive answer. I have two sons, one I made the effort to give US citizenship to, the other I did not. Exact same circumstances for both.
When the banks make our children whom we share accounts with guilty by association, how will we/they prove that they aren’t also USC’s?
Calgary411, since you have not received any response from Sylvia, the General Council at the US Embassy in Ottawa, and it looks like she has no intention of responding, let me suggest that you contact the Senator in the state where you last lived via a letter sent by certified mail with a return receipt requested in the US and ask for his intervention in securing an answer from this lady.
Every Senator and Congressman, as far as I know, on their websites state that they have staff members whose function it is to provide assistance to constituents who have run into a brick wall in dealing with the Federal bureaucracy by being non-responsive to their requests. There is absolutely no justification for your letter to be ignored. You at least deserve an honest and straightforward answer.
This is certainly your situation. I would suggest that you make it clear by whatever means you have to this Senator why you are contacting him or her, such as having voted as a US citizen resident abroad in strict accordance with the law in the prescient where you last resided in the US.
Thanks, Roger.
I likely have no traction — I have renounced my US citizenship, but it’s worth a try.
@Calgary 411, it may be a dead-end as well, but nothing ventured; nothing gained.
@Roger Conklin, calgary411,
While American politicans don’t have any time for Americans living abroad, former Americans don’t exist to them. Calgary411’s best bet would be to bring her son to the politican’s office and to wait there until the police dragged him off to jail. Yet, even then, there is no guarantee that the politician would notice.
Roger,
What SwissPinoy portrays is likely closer to the reality of my getting help from any US congressman. As a ‘traitor’ who has renounced US citizenship and use my voice to express disdain for treatment of US Persons Abroad, especially those like my son, I am less than nothing to them — and I can’t vote.
My fight needs to remain on this side of the border — and that’s where I reached Sylvia D. Johnson. I haven’t completely given up; she has assisted me in the past in getting tiger’s second appointment for relinquishment in Vancouver moved forward (and tiger now has her CLN). Ms Johnson does have some understanding and compassion and may, as I write and you read this comment, have her hands slapped for again trying to intervene and get questions answered.
@calgary411, maybe what you have to do is “camp out” in the lobby of Embassy until you can talk to somebody there, eyeball-to-eyeball. This is a tough one.
I am sure you would be hesitant to do this, but maybe you should walking back and forth in front of the Embassy with a carefully-worded placard. That might attract some media coverage that could lead to the you not being ignored. Just thinking out loud
Thanks for all your thinking out loud and suggestions, Roger. The Embassy is half a continent away from where I live.
Frustration still abounds. No one is going to commit to a definitive answer (which may be different for different situations). The only answer I can see the US giving will be “retain a lawyer for advice (on this why is it so difficult to answer question).”
– I have not gotten a reply from Sylvia D. Johnson, Ottawa Embassy.
– My June 29th comments to “The Accidental US Citizen” blog are still IN MODERATION; my email to the author not answered.
– Now from ASKPRI@state.gov (Department of State):
So the letter Must be in English, correct? No pity for the US citizen-by-birth born and raised in Puerto Rico where the official language is Spanish who has become a naturalized citizen of another country where Spanish is the lingua franca. You can live your whole life in Puerto Rico as a US citizen without knowing even one word of English, but you are required to know English in order to be able to lose your US citizenship. Puerto Ricans are second-class US citizens.