48 thoughts on “It took 15 years for this child born in Mexico to Homeland parents to prove her U.S. citizenship”

1. When I informed the US consulate of my relinquishment in Toronto, there was a young man who had applied for a US Passport, whose mother was a US citizen. The consulate had denied him a passport, but only after taking his application fee. He was very upset and wanted his money back. They refused.

   I think it is really best not to worry about US citizenship if one is foreign born. If the bank asks about US status, just deny US citizenship and, if necessary, show them your foreign-born passport or birth certificate. Now it is up to the bank to prove you are a US citizen.

2. Great post, Eric. And very much in line with a question someone asked me to consider recently: How does one prove that one is NOT a citizen? A CLN is for those who once had it, right? A CNF (French nationality certificate) is to demonstrate that one has citizenship?

   So what kind of document can one get or ask for that says, I am a citizen of X and/or Y – I am not a citizen of any other country. Maybe we could ask the UN to come up something? A certified Universal Citizenship Certificate, perhaps?.

3. Victoria, one really doesn’t have to prove that one is a citizen if one is born outside the United States. That’s the good news.

4. Tough luck for this young girl but good news for people outside the US b/c it confirms what many of us have suspected, it’s nearly impossible to prove one is an American if their parents didn’t register them and the longer the time between birth and the US claim – the harder it becomes. Canadian banks are not going to waste resources going on a quest. People with a Canadian birth places (or anywhere outside the US really) are lucky.

5. I read a few days ago that the pregnant woman condemned to death in Sudan is married to an American. Her husband said that the state department was not being helpful and that they demanded DNA evidence that their two year old son–who is in prison with his mother–is an American citizen. The state department refused to answer the question whether or not the boy was an American citizen.

   I’m sure that the IRS would be happy to claim him as a US person though.

6. Very interesting post and research. Hope that this helps those without a US birthplace, and only US parentage.

   Which of course pokes big holes in FATCA via CBT. Rendering the whole thing even more absurd in application. Will they not just acknowledge that pure CBT is unadministrable on a global basis?

   At least one US academic ( Edward A. Zelinsky, University of Iowa Law Review, 2010 “Citizenship and Worldwide Taxation: Citizenship as an Administrable Proxy for Domicile” http://www.uiowa.edu/~ilr/issues/ILR_96-4_Zelinsky.pdf ) wrote a whole paper based on the hypothesis that citizenship/status was a more efficient and administrable basis for determining tax status than residence/domicile – and seems to have been lack sufficient understanding of the history and complexities of US citizenship/naturalization laws, transmission, etc. and its development, accretions, aberrations etc. over time. His abstract alone makes it clear what he believes – an in my opinion he does not achieve a logical and persuasive argument because of assumptions which I think are unwarranted about the strength of the overlap between the facts of one’s domicile and UScitizenship status in an age of mobility, and in light of the transmission of US citizenship abroad via parentage;
   “.. an individual’s citizenship is an administrable, if sometimes overly broad, proxy for his domicile, his permanent home. Both citizenship and domicile measure an individual’s permanent allegiance rather than his immediate physical presence. Because citizenship and domicile resemble each other, and because other nations often define residence for tax purposes as domicile, the U.S. system of citizenship-based taxation typically reaches the same results as the residence-based systems of these other nations, but reaches these results more efficiently by avoiding factually complex inquiries about domicile. ”

   On the other hand, Zelinsky does state; “In contrast, the traditional justification of U.S. citizenship-based taxation, the putative benefits of such citizenship, is not persuasive….”

7. What’s going to happen when USC’s and green card holders who with no outward indicia are able to pass under the FATCA radar, and others who are no more American than they are are thrown to the wolves?

   If you can’t catch them all, then you shouldn’t pursue any, me thinks.

8. @ serfingUSA
   Here is a detailed article about the atrocious case of the woman condemned to death in Sudan for the crime of being a Christian. Yes she is married to an American citizen, and yes her imprisoned child is an American citizen.

   http://www.steynonline.com/6359/where-the-dream-act-for-meriam-ibrahim

9. Just what would be the difference between my child born in Canada and the child in this story who was born in Mexco, both to two US parents? I have two opinions that my Canadian-born son, born to two US citizen parents the year before they became Canadian citizens IS a US citizen. I have a big problem with that. Will Canadian banks? I don’t want a “work-around”. I want just law from both the US and the country my son was born in, Canada. I want my Conservative MP and all Conservative MPs who voted in lockstep to implement the IGA signed with the US to tell me (per my submission at http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6526468&Language=E&Mode=1&Parl=41&Ses=2):

   Members of the Finance Committee, I ask you to ask yourselves if, since the US continues with its Citizenship-Based Taxation and will not release such persons with “mental incapacity” from their ENTRAPMENT into a US citizenship,

   “What will the Government of Canada do to protect Canada’s most vulnerable CANADIAN CITIZENS from the effects of this
   implementation of an IGA to allow US law to take precedence over Canadian law, making these persons second-class to any other Canadians, with or without a disability, by their entrapment by the US into an extraneous US citizenship?

   Help, I Want to Expatriate, But They Won’t Let Me….Part II, by Virginia La Torre Jeker J.D.

   Mental Incompetency Issues

   If mental competency is an issue, special care must also be taken. An individual cannot lose US citizenship unless he has the legal capacity to form the specific intent necessary to give up his US nationality. When the person has some type of mental incapacity, the question will arise whether the individual understands the seriousness of renunciation, including its irrevocable nature and the major consequences that flow from it. “Voluntariness” may also be an issue with persons who suffer from mental incapacity or impairment, as such individuals may be especially susceptible to the influence of others.

   A court finding of mental incompetency, whether by a US court or one overseas, will preclude a finding that the individual has the requisite intent to renounce his citizenship. A parent, guardian or trustee cannot renounce the US citizenship on behalf of a mentally incompetent individual, since it is viewed as a personal right that cannot be exercised by any other person.

   Parent or Guardian – What Should You Do?

   US tax planning in the kinds of cases discussed is ever critical. If the individual cannot expatriate currently, it is very important to structure his affairs to minimize any US tax bite during the time he remains a US citizen and in planning for a future expatriation. It the individual is under a permanent mental incapacity such that renunciation will never be possible, then proper planning of US tax matters becomes even more critical. A well-meaning parent or guardian may often look to trust structures to ensure the continued care of the child or mentally challenged individual. However, setting up a “foreign” (non-US) trust for such an individual may well be the worst action to take from a US tax planning perspective! The stakes are high. Get proper advice.

   Andy Grossman says at in his comment:

   A few points:

   (1) There is a “rebuttable presumption of alienage” (non-acquisition of US nationality) in the case of persons born abroad, at least in non-criminal cases. The State Department allows its consular offices abroad to issue reports of birth abroad of a citizen only up to age 5, after which all cases must be referred to Washington. https://secure.ssa.gov/apps10/poms.nsf/lnx/0200302535 Especially in cases of doubtful qualifying residence (or for non-marital children, mother’s unbroken presence) in the United States, this presumption may be useful. The IRS after all has no status to bring an action to establish nationality. (There is substantial case law on “doubtful nationality” cases, many of which have been collected in the Gordon, Mailman, Yale-Loehr & Wada Immigration Law treatise.)

   (2) While International Law reserves to each state to the right to determine who are its nationals, it does not compel recognition of that nationality by other states in exorbitant cases. The concept of “dominant nationality” widely accepted before WW II fell into disuse as dual nationality became common (partly because of gender equality) (viz. the 1992 Micheletti case of the ECJ); but the paramount national interests of other countries whose “ordre public” might violated by US PFIC and citizen-tax rules just might revalidate it. Provisions of tax treaties notwithstanding (“For the purposes of this Convention, the term ‘resident’ of a Contracting State means any person that, under the laws of that State, is liable to tax therein by reason of that person’s domicile, residence, citizenship”).

   (3) The State Department’s views on loss and renunciation of nationality are here: http://travel.state.gov/content/travel/english/legal-considerations/us-citizenship-laws-policies/renunciation-of-citizenship.html These are not unqualified statements of law but rather agency interpretation. Statistics alone suggest that large numbers of persons who may be counted as its nationals abroad have disregarded their status and obligations. Many lack the means and sophistication to be compliant. Some forego CLNs and rely on pre-1980 expatriation or on their own interpretation of the expatriation statute. In the sad cases of mentally-incompetent individuals disadvantaged (i.e., for PFIC and tax reasons obstructed for benefiting from foreign tax-sparing allowances and trusts) some rely on the points in paragraph (2) above.

   (4) That said, Big Data and new tools (the TECS database of passports, green cards, visas, travel reservations and border crossing) and the occasional use of “ne exeat republica” injunctions puts at risk those who, like Ronald Anderson, once thought they could visit the USA undetected http://uniset.ca/other/news/wp_ronaldanderson.html

   (5) Ronald Anderson was a Vietnam war era Army deserter. Such people relied on sympathetic foreign governments (which often gave them residency and eventually naturalized-citizen status). Other cases highlight the policy conflicts that dual nationals encounter. FATCA and other aggressive foreign assertion of jurisdiction by the USG may be acceptable when they relate to US residents. How conflicts will be resolved when dual- (and multi-) national individuals are targeted within their other country of nationality remains to be seen.

   (6) Most countries of the world have permutations of “nationality”, sometimes based primarily on ethnic or cultural priorities. The USA rather has something else: English Common Law “allegiance”, as in “Pledge of” and in “Ligeance of the King”. For Americans expatriation has typically had within it a whiff of apostasy. (The US still has “grades” of citizen, with 14th Amendment citizens born in the 50 states compared with territory-born citizens and foreign-born “jus sanguinis” citizens (and beyond that pre-1924 Indian Citizenship Act Native American protégés, pre-Cable Act women, American Samoa “noncitizen nationals” and a few other anomalies.)) This may explain a certain lack of sympathy for Americans abroad faced with the kind of conundrum you have written about.

   (7) The US often holds other countries to a higher standard than it holds itself in international-law matters, the Nicaragua case before the ICJ being only one example. Although other countries have “expatriation taxes” (France, Denmark, Canada…) and Eritrea (and until 1999 the Philippines) have levied tax on their diaspora, the main conflict has been in military conscription. Some countries (Greece, for example, except with respect to its Muslims and ethnic Slavs) have had no provision for loss of nationality. One might hope that a multiplication of cases of conflict between the USA and foreign nations will lead to a clarification and perhaps an alleviation of hardship in some cases of reluctant and “accidental” Americans.

10. I think that the US has maxed out on the most it can do to make life both tolerable and intolerable for Americans living abroad under CBT, and the things it’s provided to make CBT tolerable are too onerous to tolerate! Something’s got to give, and we’re seeing it in US consulates every day.

11. Petros, ” if necessary, show them your foreign-born passport or birth certificate. Now it is up to the bank to prove you are a US citizen.”

    You indirectly pointed out something that everyone should be aware of.

    In opening a financial account, never ever give your non-US birth certificate.

    Why? That will show the birthplace of your parents!!

    First, that document in the information age will be retained for years. The IGA after the IGA may contain who knows what indica requirements.

    Second, I do not trust the compliance industry and hyper compliance people at a bank. There will be someone that presents a long form Canadian birth certificate and it will show two parents born in the USA.

    The IGA refers to an unambiguos US place of birth. If someone presents their long form Canadian birth cerificate which shows two US born parents, is that person at risk? I hate to say this but I think they would be at risk.

12. It will be very telling if the banks insist on only long form birth certificates, wouldn’t it? Will our financial institutions set the indicia bar high or low?

13. (continued) from another thread, speaking of hypercompliance. They actually go beyond the IGA and discuss having a US Parent.

    Do NOT ever give them a birth certificate if it shows any US parentage!!

    —-

    Steve Klaus says
    May 26, 2014 at 7:22 am

    This link will take you to the HSBC PDF for it’s complete (roll over) FATCA compliance. Note that a US Citizen is defined as someone who has one or more parents who are US Citizens. Thus, it catches even those who may not know they are US Citizens or every acted as a US Citizen…..

    http://www.fatca.hsbc.com/~/media/fatca/fatca-faqs

    Personal Customers
    8. Am I only affected if I am a citizen of the US?
    No. If an individual’s account holds any of the following seven criteria, HSBC may request further information/documentation to determine if you are a US Person under FATCA.
    • US citizenship or US residence
    • US place of birth
    • US address including US PO boxes
    • US telephone number
    • Repeating payment instructions to pay amounts to a US address or an account maintained in the US
    • Current Power of Attorney or signatory authority granted to a person with a US address
    • In Care of or Hold mail address which is the sole address for the account holder

    US Person (USP)
    The term “United States person” means:
    • A citizen or resident of the United States,
    • A partnership created or organized in the United States or under the law of the United States or of any State, or the District of Columbia,
    • A corporation created or organized in the United States or under the law of the United States or of any State, or the District of Columbia,
    • Any estate or trust other than a foreign estate or foreign trust. (See Internal Revenue Code section 7701(a)(31) for the definition of a foreign estate and
    a foreign trust.),
    • A person that meets the substantial presence test,
    or
    • Any other person that is not a foreign person

    US Citizen
    The term “United States Citizen” means:
    • An individual born in the United States,
    • An individual whose parent is a U.S. citizen,
    • A former alien who has been naturalized as a U.S. citizen,
    • An individual born in Puerto Rico,
    • An individual born in Guam,
    or
    • An individual born in the U.S. Virgin Islands.

14. @Bubblebustin, looks like HSBC is setting the indica bar to catch them all.

15. Low enough, George, to create a vast number of false-positives?

16. Most of you know that I was a border baby – hence, a US citizen, I guess. My children have a US parent (me), but are NOT US citizens themselves because I have never lived in the US. In order for them to acquire my US citizenship, I (or they or we) would have had to live in the US for a certain period before they reached a certain age. They DID NOT acquire US citizenship, though they have a US parent. I guess my question is, would they be considered US Persons anyway (I may not want to know the answer to this question). It could be important for them to know the consequences of how they open bank accounts – something I had never considered.

    Would my children possibly be a “false positive”?

17. @CanadianCop,

    I am in a similar situation as you – born in USA to Canadian parents, but have lived in Canada since I was a baby. I wonder about my children as well. Technically, I did not live long enough in USA to pass on the dreaded disease to my offspring, but how do we prove that one to the banks when/if we are outed. I guess the only solution is for our children to bank at different financial institutions. Of course, some day down the road they will have to deal with inheriting from a second class Canadian citizen. Hopefully by then, CBT will be history.

18. @ Canadian Cop

    I have pointed this out before….It depends on what year they were born…AND if you lived 5 or 10 years in the US depending on the year of their birth…

    Birth Abroad to One Citizen and One Alien Parent 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 the genetic or the gestational parent and the legal parent of the child under local law at the time and place of the child’s birth to transmit U.S. citizenship.

    I think you are probably clear on this issue…I know my daughter is and have argued this out a few times to people who don’t understand the rule…(Having only lived in the US myself to age 5 1/2…therefore impossible to transmit US Citizenship even if I was – but further confirmed by my CLN pre-dating her 1983 birth…)

19. I agree that you should refrain from allowing anyone to see or photocopy your birth certificate and should banks start requiring them that would clearly be a Charter issue, however, as Canadian cop points out just having a US born parent does not make you a citizen. My daughter, for instance, will not have spent the necessary time in the US as a resident to be able to pass her citizenship to any children she may have either (although she already plans to renounce as soon as she is considered old enough in any case). And it’s probably a good idea for Canadians to question the need for our birthplaces on our passports. The only thing really necessary should be where they were issued.

    The FATCA triggers are simply too board and the US’s citizenship rules too complex for our banks or the CRA to determine status for the IRS. And the IRS, in any case, isn’t allowed by law to make citizens out of people on its own. I wonder when/where the first legal action against a bank will occur – but it will. Who would allow themselves to be co-opted by a foreign govt for tax purposes without putting up a fight?

    And so here is yet another glitch that our MP’s didn’t think about that make the whole IGA just that much more of a clusterfuck.

20. @ All…

    As you can see from the above posting on transmitting US Citizenship…It is kind of funny that if one is considered a EUNICH because one didn’t live in the US after age 14…then logic dictates that one really isn’t a US Citizen with all the rights and privileges that US Citizenship entitles you to.
    So why is anyone who resided outside of the US since before age 14 even considered a US Citizen? Things that make you go – HUH????? — (and they revoked the minor and age 25 US residency requirement but left this in place…) Makes you shake your head….

21. Addendum…

    When I say MINOR (I refer to the Child Clause Expatriation rules prior to 1986)
    and when I say Age 25 US residency ( I refer to both the Oct 10,1978 and 1986 rules changes affecting anyone not re-establishing US residency before age 25)

22. @WhiteKat

    Do you know that you would only had to have had a physical presence in the US of only one year to have transmitted your dreaded disease had your children had been born out of wedlock? It’s different for men because the US doesn’t want their soldiers fighting wars leaving a trail of US citizenship claimants.

23. @Yogagirl

    As above, re the importance of your daughter in being married, and not being married to an American when she eventually has children.

24. @Canadian Cop & WhiteKat,

    I have not worried for one second about my children. None of our children are deemed US citizens by the USG (as we are) as none of us meet the US “physical presence” requirements. No US citizenship = no US person status. I do agree that it is a good idea for them to use different banks, to avoid any mistaken hassles.

    I am still fairly confident that we will not be “outed” – the only way we can be outed is if the banks try to start screening thousands of customers and demand to see a birth certificate or passport. So far there are no indications of this, but who knows what the future holds.

    @ Benedict Arnold

    Good point – further evidence of the insanity & injustice of this whole thing. I would love to see Obama and his fellow senators, the Treasury & IRS culprits etc. all sitting in the Hague penalty box for international human rights violations and watch the judgments being read out…

25. @ bubblebustin

    The key difference is the words MAY ACQUIRE (also in case of men)

    Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother:

    A person born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under Section 309(c) of the INA if the mother was a U.S. citizen at the time of the person’s birth and if 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. The U.S. citizen mother must be the genetic or the gestational mother and the legal parent of the child under local law at the time and place of the child’s birth to transmit U.S. citizenship.