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?
If you are born outside of the US to a US parent then you are a US citizen from birth. You may be able to successfully conceal this fact from US authorities if your birth was not registered at a US consulate, but that does not negate the fact that you were born a US citizen. If you were born in a country that does not grant its citizenship to children born to persons who are not citizens of that country (there are many countries with this citizenship policy), then the fact of the citizenship of the child’s parents may be recorded as part of the birth record of that person.
Just ask the IRS. It will make it very clear that if you were born abroad to a US parent you ARE a US citizen. The exception to this is if the US citizen parent did not live in the US for a certain minimum number of years as explained in the US Nationality Law. A child born abroad in a country that does not grant citizenship to a child born there of a parent who is not a citizen of that country may well be born without citizenship in any country.
a little depressing twist of logic in Norway:
http://theforeigner.no/pages/news/australian-norwegian-couple-fight-officialdom-for-childrens-dual-nationality-right/
citizenship stripped retroactively of children born of mixed country origin
Roger..
I believe you are wrong …
The Child Citizenship Act of 2000 quite clearly states:
“do not acquire citizeship automatically”
So once again…Changes to INA Acts affects determinations…
There are no absolutes…
Edit please:
“do not acquire citizenship automatically”
The Child Citizenship Act of 2000 preamble states:
The Child Citizenship Act of 2000 allows certain foreign-born, biological and adopted children of American citizens to acquire American citizenship automatically. These children did not acquire American citizenship at birth, but they are granted citizenship when they enter the United States as lawful permanent residents (LPRs).
Thank you, Benedict.
To my reading, this is what Sylvia D. Johnson, Ottawa Embassy, relayed to me and what I will maintain — until I know, previous to the Child Citizenship Act of 2000, did they acquire citizenship automatically? This seems to be what the Washington, DC Immigration / Nationality lawyer I hired (and just recently paid more $$$ for the emails I copied to him) says regarding my children — they automatically were US citizens from the moment they were born. Thus, entrapment into US citizenship. This, if true, is wrong!
@Calgary
You will notice that it also states taking up lawful permanent residence” (ie: 2000 ACT)
This was also a factor in the 1952 INA act for “US Born” children who left the country (ie, me)…they were required to EITHER take an OATH to the US before age 22 or return to the US to take up “permanent residence” before age 25…(that is until the Oct 10, 1978 ruling changed the time limitation for some) –
So I would suggest digging into the rules as to “foreign born”: between 1952 and 1986 (subject to 1978 rev.), 1986 and 2000, and 2000 to present…each may be different…
Thanks, Benedict.
I am going to be pretty much offline for about a week and a half. I’ll look into this when I return.
All,
This is what the US State Department website currently has to say on this subject:
http://travel.state.gov/law/citizenship/citizenship_5199.html
Since DNA identification has been further enhanced;, it is now much easier for the unwed father of a child born abroad to transmit US citizenship to a illegitimate child born abroad than it used to be.
The rules have changed many times and who knows? They could change again with the next round of revisions to the US Nationality Law; whenever that might happen.
Roger
The rules change and added requirements alter results…no absolutes…so one cannot make a sweeping generalization like..ALL are US CITIZENS
from your link: “under in wedlock”
A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child’s birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be genetically related to the child to transmit U.S. citizenship. ”
Under out of wedlock:
“A child born out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under the former Section 301(a)(7) of the INA as made applicable by the “old” Section 309(a)
I have not lived i the US since age 5 1/2 in 1963…my daughter, born in Canada in 1983, is not a US Citizen even if I were deemed a US Citizen, (which I am not…)
For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.
So there you are…
@Roger Conklin wrote: “A child born abroad in a country that does not grant citizenship to a child born there of a parent who is not a citizen of that country may well be born without citizenship in any country.”
That is true as far as it goes. Many countries (but not the UK) having ratified the 1961 Convention on the Reduction of Statelessness implement articles 1 and 4 to grant nationality to any child born within their borders who would otherwise be stateless. http://untreaty.un.org/ilc/texts/instruments/english/conventions/6_1_1961.pdf Of course the treaty provision is irrelevant in jus sanguinis countries like the US and Canada.
There is at least one case on record where the child of a Peruvian father and a Swiss mother, born in Switzerland could not obtain Swiss nationality because it was deemed that it was only due to non-registration of his birth with a Peruvian consular office that he had not been granted Peruvian nationality: Département fédéral de justice et police v. Vilchez, Trib. féd., Cour de droit public, 29 June 1979, A.T.F., 105, 1979, Ib, p. 63, Clunet, 114.1987.674.
So: it is true that failure to register the birth abroad of the child of an American citizen may lead to the appearance (contrary to fact) that the child does not possess that nationality. But neither can one then rely on the Convention in a purely jus-sanguinis country to gain local nationality.
Note that applications for registration and for Consular Reports of Birth Abroad made after the child reaches the age of 5 are subject to decision by the State Department in Washington and not at Embassy level.
Many persons are wrongly documented as having a particular nationality, or wrongly denied that nationality. Some countries (France, Switzerland and others) have special provisions for cases of “possession d’état” for, say, ten years when it is only thereafter discovered that a person was not entitled to national status.
@Mark Twain: Norway’s misinterpretation of Australian nationality law to deny a child Norwegian nationality and to cancel retroactively the nationality of others is just one more example of one county relying on its own interpretation of foreign law rather than that of the country enacting it. In Mahaboob Bibi v. Home Secretary, [1987] Imm. A.R. 340 the British Government decided for itself who is entitled to Mauritian nationality. And David McNab and Abner Schoenwetter were convicted in the USA for violation of the Lacey Act despite a Honduran court decision that the relevant Honduran law and regulation were invalid. http://www.heritage.org/research/reports/2012/05/the-lacey-act-from-conservation-to-criminalization
As far as US citizenship to a child born abroad the US law is quite clear.
:
http://travel.state.gov/law/citizenship/citizenship_5199.html
There may be a few hoops to jump through if the child was not registered with a US consulate at the time of birth, but with the proper evidence the fact that the person indeed has US citizenship will be confirmed. After all, each US citizen born and living abroad is, by definition, is a generator of tax revenue for the US Treasury and therefore of interest to the IRS.
A friend of mine in Brazil advises me that, with DNA, he has confirmed the US citizenship of his 3 illigitimate children born there and that they now have US passports. It took 3 trips to the USD consulate which is far from where they live deep in the Amazon jungle, but it has been accomplished.
@Roger
The issue is whether somebody born outside the United States can, regardless of US law, take the position that he/she is NOT a US citizen.
I maintain that if one is not born in US jurisdiction one cannot be forced to be a US citizen. It doesn’t matter what the State Department says. They are just the executive branch of the USG that has no jurisdiction outside the borders of the US.
The most the US can do is specify conditions under which it will grant citizenship to those born outside its jurisdiction.
Test it this way:
Why not let the US simply decree that everybody in the world is a US citizen and therefore a US taxpayer.
If you were not born in the US, you would be a fool to allow the US to deem you to be a US citizen.
I agree with you, UCA, not only because that is how I see it for my son (those like him actually entrapped into US citizenship by US law). Why does the US get to make all the rules? I want to make the decisions best for my Canadian-born and benefited son who has never been registered as a US Birth Abroad.
No common sense at play. Why? At best and to be fair, there should be a choice to CLAIM US citizenship.
If you were born outside of the US to a US citizen parent, one way to test whether the US considers you to be a US citizen would be to travel to the US with the passport of another country which considers you to be its citizen and then visit the IRS and challenge them to try to force you to file US tax returns and pay US taxes on your foreign source income.
The US considers that it has the authority to enact and enforce extraterritorial legislation. Examples of this are citizenship-based taxation under which the IRS levies and collects taxes from US persons who are bona-fide residents of another country on their income from sources outside of the US. In fact the US has negotiated tax treaties with many countries in which those countries specifically permit the US to do this.
Another example is the FATCA legislation in which the US obligates, under the threat of severe sanctions, foreign financial institutions in the 192 other countries of the world to provide detailed reports to the IRS on their US-person account holders. Although this law has not yet gone into full effect, numerous IGAs – intergovernmental agreements have been negotiated with other countries which provide a mechanism for their financial institutions to provide the IRS with this information.,
It is doubtful, to say the least, that the US would allow other nations to enact and enforce the kinds of extraterritorial legislation affecting their citizens resident in the United State, but so far the US has been able to do it with very little effective opposition from other nations.
I understand your concerns. Does the US have any sovereign right to declare that a person born within the territory of another sovereign nation is a US citizen and therefore subject to US income tax on income from sources outside of the US? Perhaps the country of residence and citizenship-by-birth might have an interest in formally protesting that the US has no exterritorial right to exert this claim of the persons US citizenship without either the consent of the US citizen parent or the person himself.
I really don’t know. Perhaps Canada might find it worthwhile to pursue this on behalf of persons born in Canada to a US parent who are Canadian citizens by birth and who have never had an opportunity to reject this imposed US citizenship and its accompanying US tax obligation.
Food for thought?.
@Roger Conklin, Canada needs to prohibit renunciations for US dual-citizens living in the US and require them to pay a 30% non-deductable flat tax on their local US earnings. The US, in response, would either throw its citizens under the bus, declare war against Canada or abolish citizenship-based taxation.
Thanks, Roger. I have given my son’s (and by extension others like him) story to my Canadian government representatives and media.
Your comment spurs me on and I will now make another round of submissions regarding all “Accidental Americans” given the ‘gift’ of US citizenship even without the Parent(s) having registered the US Birth Abroad. In reality this affects more than persons with developmental disabilities or some other mental incapacity like my son born in another country to US parent(s). As always, I appreciate your understanding and encouragement.
Why not send a boat to every country and pick up all the 18-yr olds for the next war? Syria & Iran are coming up soon, with no worries if it should spread to all the other countries in the region. Certainly if they are required to pay taxes they should also have registered for the draft?
Mark Twain. You are absolutely correct in that US law requires that children born abroad to a US citizen parent must indeed register for the draft. Although currently the US does not have obligatory military service, this draft registration is required in case of a national emergency which would result in re-institution of obligatory military service. I recall that during the Vietnam war the US also required foreign citizens, in including those in the US with student visas attending US colleges and universities, to register and they were also drafted.
We lived in Peru during the Vietnam war. There was a “retaliation” (because some Peruvians had been killed serving in Vietnam) bill introduced in the Peruvian Congress that would subject US citizens residing in Peru to obligatory military service in that country. As an American this was a matter of concern having already served 2 years in the US Army as a draftee. But that bill, fortunately for me, was never enacted by the Peruvian Congress.
Boarding of vessels and conscription of the males to military service. Back to 1812 again.
I had this message offline this morning:
I maintain that the worst person my adult son (who has a developmental disability) could travel with to the US (we have not travelled to visit relatives for many, many years now) will be me, his mother who now has renounced US citizenship and has a CLN but who still shows a US birthplace on my Canadian passport. I don’t want to face this experience and certainly don’t want my son to be questioned at the border.
US policing with their rules in Canada; ‘supposed’ US citizens born abroad or their parents threatened by the US. It all makes me sick. We do need to report here all such experiences of crossing into the US.
PS: Interestingly, I’ve just learned that the reported incident was in crossing from Ontario into New York, the same as where I had my US border inquisition incident when the border guard told me back then ‘I could go into the US this time with my Canadian passport but the next time it must be with a US passport.’ I wish I knew then all that I know now in that I would have been able to claim relinquishment by becoming a Canadian citizen and being WARNED that I would be relinquishing my US citizenship in 1975 — warnings of losing US citizenship was indeed ‘US punishment’ of the times. Alas, it would make no difference for my supposed ‘US citizenship’ punitively entrapped Canadian-born son.
@Calgary411
“Your papers, please”.