The FBI has released its latest report on Active Records in the NICS Index as of 31 July 2013. NICS now contains the records of 22,908 renunciants who have been stripped of the right to purchase firearms in the United States. This is an increase of 298 since last month and 2,254 since December last year; this compares to 1,184 renunciants recorded by the FBI in January–July 2012.
Based on past trends there should be about four or five relinquishers for every six renunciants, implying that somewhere around five hundred people gave up citizenship last month in one way or another, and four thousand so far this year, if the FBI didn’t miss any — though since only registered gun dealers & FBI employees can access the list, it’s rather difficult for ordinary members of the public to verify whether it’s complete or not.
Upcoming data releases
We are still waiting on other data releases to provide a basis for comparison. Unsurprisingly, the U.S. Treasury Department missed the deadline last Tuesday to publish its list of names of renunciants, relinquishers, and ex-green card holders for the second quarter of 2013. From past experience, Treasury will probably publish its delinquent report within the next few days, though the law specifies no punishment for the agency or any of its officers if it fails to do so — meaning we have become accustomed to reports which are not only late but grossly incomplete as well.
The South Korean government has also not yet published its annual Diplomatic Whitebook, which in past years has usually come out in July; this report is significant because it contains statistics on the number of people who gave up U.S. citizenship or green cards to restore South Korean resident registration during the previous year, and in the past these statistics have sharply contradicted the Treasury figures.
Alleged renunciations by “sovereign citizens” not included
Some lawyers and mainstream news sources have begun to notice that the NICS count of renunciants and the number of names in the list that Treasury publishes in the Federal Register do not match. However, less-well informed commentators still try to defend the Treasury’s figures as a complete count of Americans abroad giving up citizenship; one suggestion I’ve seen floating around online, though I don’t recall where, is that the discrepancy can be explained by “sovereign citizens” or other domestic protestors and criminals who allegedly renounce their citizenship while continuing to reside in the Homeland. For two reasons, however, this cannot possibly be accurate. But first, some background.
Renouncing your citizenship on U.S. soil?
Surprisingly, it is theoretically possible to renounce U.S. citizenship while on U.S. soil. For this you can thank the World War II anti-Japanese American hysteria embodied in the Renunciation Act of 1944, which created the paragraph which is today located at 8 USC § 1481(a)(6). This law can only be used during a “state of war”, but three years ago a federal court ruled that the U.S. is indeed in a “state of war” for purposes of the 1944 Act. As a result of the ruling the U.S. government does seem to have created some rudimentary procedures for dealing with domestic renunciations — at least until they can get the 1944 Act repealed.
The 1944 Act requires that domestic renunciations be made “before such officer as may be designated by the Attorney General”; courts generally accept that these days this means U.S. Citizenship & Immigration Services. However, USCIS doesn’t publish any procedures for such renunciations on their website. Instead, as a court case last year made clear, if the folks at USCIS receive an inquiry, they inform the would-be renunciant that he or she must attend an in-person interview at a USCIS office. This greatly decreases their workload: other than sovereign citizens, it seems that most would-be domestic renunciants are dual-citizen prisoners hoping that they might receive early release in exchange for deportation — but of course they can’t attend the interview.
Two federal judges have upheld the legality of this requirement for an in-person interview; one of them was Ellen Huvelle, previously noted on the Isaac Brock Society for her ridiculous obiter dictum that the State Department may legally deny issuance of a CLN to an overseas renunciant on the basis of pre-renunciation “affiliation with the United States”.
Legal and practical barriers to inclusion in NICS
As the FBI’s regulations make clear, NICS only includes those renunciants who meet the requirements of 8 USC § 1481(a)(5) or (6). However, alleged renunciations by “sovereign citizens” in the Homeland do not fulfill the requirements of those paragraphs; “sovereign citizens” don’t renounce at a U.S. diplomatic mission overseas nor “in the form prescribed by the Attorney General”. Instead, they generally purport to renounce citizenship by sending letters or affidavits to their state governments or to the media. Ignorant media reports like this one in the Washington Post or this one in the Los Angeles Times may erroneously claim that these people “renounced U.S. citizenship”, but in reality such documents have no legal effect.
Furthermore, even if a “sovereign citizen” or other Homelander were to successfully navigate the maze of bureaucracy and renounce his citizenship in the proper form under the 1944 Act, there’s no mechanism for the FBI to obtain information about these renunciations from USCIS; the State Department is the only agency which provides information to the FBI for that “Renounced U.S. Citizenship” category in NICS. On the other hand, a Homelander who renounced under the 1944 Act might show up in Treasury’s list — if he proceeds to file Form 8854, then Treasury obtains information about him under 26 USC § 6039G(d)(1): “any Federal agency or court which collects (or is required to collect) the statement under subsection (a) shall provide to the Secretary … a copy of any such statement”, and thus he becomes a person “with respect to whom the Secretary receives information under the preceding sentence” and whose name must therefore be published.
In other words, Homelanders who renounce citizenship will not show up in the FBI’s list, but they theoretically might show up in Treasury’s name-and-list — yet another reason why the FBI’s list should be smaller than Treasury’s list if the latter were accurate. Of course, in reality there’s no evidence that the U.S. government has actually accepted a single renunciation under the 1944 Act since the end of World War II, meaning this is a moot point: no “sovereign citizens” meet the legal definition of renunciation, and so they don’t show up either in NICS or in Treasury’s list.