Are you worried that you might have inherited “U.S. Personhood” from an American emigrant parent, but never had your status documented and have lived your whole life solely as a citizen of the country where you actually reside? Then you might find this case interesting. Via the Seattle Post-Intelligencer:
Cerrina was born prematurely in 1999 while her mother was visiting Mexico. Both of her parents were American citizens, but due to her early birth and some language difficulties, she wasn’t issued the correct form for babies born to American parents abroad. No one told her mother such a form was needed. When Crissy Foster brought her daughter home to Longview after the birth, the border guard who let them back into America even congratulated her on what he assumed was Cerrina’s automatic dual-citizenship, she said Friday.
But Cerrina didn’t have citizenship anywhere, as her mother soon learned … The United States wouldn’t issue a birth certificate to Cerrina without the correct paperwork from Mexico. And Mexico also didn’t claim her, because by law she was an American. At first the paperwork glitch seemed minor. But her case dragged on. It took a petition to the Mount Vernon School Board and a conference call with then-Congressman Brian Baird just to get Cerrina enrolled in kindergarten. She couldn’t be on her mother’s health insurance policy without a birth certificate, either.
The year is probably the key sticking point: Foster was born before 11 September 2001, but all her parents’ most serious attempts to prove her status came after that date. This, at its heart, is the mirror image of the situation which many border babies in Canada have been facing in recent years: pre-9/11 common-sense assumptions about citizenship collided with rigid post-9/11 documentary requirements, and after all the dust settled, the bureaucracy had shoved people into arbitrary boxes in which they really didn’t want to be stuck. The whole mess in both directions brings to mind an amusing point made by Victoria over two years ago:
The delicious irony of all this, of course, is that the people who have the least amount of paperwork to provide for a [Certificat de nationalité française] are the naturalized citizens (i.e. the foreigners) whereas the French who have been French for generations by blood and soil have to provide a pile of official papers proving Frenchness going back at least two generations. Was this really what the Right had in mind? Probably not. So I guess we can just consider this another unintended consequence of laws designed to harass the “foreign” which result in enormous inconvenience for the “native-born.”
Details about the Foster family’s case are unfortunately rather sparse. The only additional information I could find online was a Change.org petition by the mother last year, which links to a Facebook group. Anyway, the solution appears to have been some sort of horrible kludge:
Friday, the 14-year-old stood in a federal office, raised her hand along with 12 other people and pledged her loyalty to America. Lots of immigrants do this every year to become naturalized citizens, but Cerrina’s case is different: She’s always been an American citizen; but she never had a birth certificate … “It’s a unique case,” said Rebecca Russell, the Lake Oswego immigration lawyer who agreed to take on Cerrina’s case for free about a year ago. “And our system is not set up for unique cases … or ones that don’t fit inside the box.”
Russell threw the case out to a computer network of experienced immigration lawyers. They eventually figured out a way to petition for citizenship that didn’t require a birth certificate or passport. Another round of paperwork was submitted and last week Cerrina got a letter in the mail inviting her to Friday’s ceremony to receive a certificate of citizenship. With that, she’ll now be able to apply for a passport and a birth certificate.
This “petition for citizenship” sounds like something under 8 USC § 1431 or maybe § 1433, but it’s hard to tell from this vague description. But regardless of the exact legal mechanism, the Foster family’s difficulties in proving their daughter’s citizenship ties into something that Andrew Grossman, a retired U.S. State Department official, wrote in his 2007 paper “Conflicts in Cross-border Enforcement of Tax Claims”:
There is a significant number of instances of doubtful nationality where, because the requisite physical presence of a U.S. national parent has not been documented nor a foreign-born infant’s nationality claimed, an individual has not been regarded as a U.S. national for any purpose, including taxes.
In support of his claim, Grossman cites an interesting law: 25 U.S.C. § 1300b-11 through 16 (2005), Pub. L. 97-429, 96 Stat. 2269-70, which allows members of the Texas Band of Kickapoo Indians to apply U.S. citizenship (“any member of the Band whose name appears on the roll compiled by the Secretary, may, at his option, apply for United States citizenship”) because “although many members of the band  meet the requirements for United States citizenship, some of them cannot prove that they are United States citizens”, and also stated that “notwithstanding the Immigration and Nationality Act [8 U.S.C. 1101 et seq.], all members of the Band shall be entitled to freely pass and repass the borders of the United States and to live and work in the United States”
I have my doubts that other State Department officials, let alone judges, will find Grossman’s argument convincing, given that the law he cites clearly gives people the right but not the obligation to apply for U.S. citizenship, whereas 8 USC § 1401 contains no considerations of the individual volition but instead demands that “[t]he following shall be nationals and citizens of the United States at birth”. Nevertheless, he goes on to state:
As far as can be determined and notwithstanding the text of the Revenue Rulings cited above1, the United States seems not, after the Supreme Court decisions in Afroyim v. Rusk and Vance v. Terrazas, to have asserted with any force a claim to the allegiance of persons earlier divested of nationality under laws later abrogated with retroactive effect. Much less has it sought to claim as citizens their otherwise qualifying offspring born abroad or taken affirmative steps to subject either category of persons to tax on their worldwide income if they remained abroad.
(Cf. Rocha v. Immigration and Naturalization Service, 450 F.2d 946 (1st Cir. 1971) (U.S. nationality of mother deemed never to have been lost). It would seem a heroic undertaking for a tax agency to inquire sua sponte into matters relating to derivative acquisition of status, whether nationality or domicile. The task is rendered all the more difficult in the wake of Wauchope v. U.S. Dept. of State, 985 F.2d 1407 (9th Cir 1993) and Benner v. Canada (Secretary of State),  1 S.C.R. 358.)
However, another legal scholar expresses an opinion which seems to offer some support to Grossman’s thoughts, but in the completely different context of state succession in South Sudan. Mike Sanderson (Winter 2014), “Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law”. Northwestern Journal of International Human Rights Law 12(1), at page 89:
It might be that the only reasonable interpretation of the relevant provisions would grant citizenship in a particular case. This conclusion might, in fact, be entirely self-evident or may already have been adopted by a decision-maker in another state. However, regardless of any other determinations that may have already been made with respect to acquisition, unless the relevant administrative body in the responsible/granting state is willing to confirm acquisition of its nationality the individual is not considered as a national under operation of its law and therefore lacks good national protection. It is only the juridicial acts of the state which permit us to assess its views with any degree of certainty. This is true even when such confirmation can only be declarative in its effect.
Meanwhile, Grossman concludes his discussion of “clinging nationality” with a list of court cases, mostly from Europe, discussing involuntary attribution of citizenship. Unfortunately none of these cases seem to be available freely online, though you can probably find them in subscription-only databases:
A related category or persons is comprised of persons born abroad, otherwise U.S. citizens, whose births were never registered with U.S. consular authorities and who are therefore subject to a (rebuttable) presumption of alienage. While it is beyond the scope of this article to develop further the argument against involuntary attribution of nationality, several postwar cases involving expatriated Germans and citizens of unrecognized territories discuss the point.
(Terhoch v. Daudin, C.A. Paris, Feb. 8, 1947, 1947 II Dalloz 240, 14 Ann. Dig. 121 (former German national who served in French army allowed to recover former residence); cf. C.A. Berlin, Dec. 21, 1965, 18 W 1516/61, 43 I.L.R. 191 (Romanian native granted Hungarian nationality by Wiener Schiedsspruch, later rendered stateless; imposition of unwanted Romanian nationality declared contrary to international law). The Reich nationality law was abolished by Allied Control Council (Kommandatura), Law No. 1 of 20 Sept. 1945, Official Gazette of the Control Council for Germany, 1945, No. 1, p. 3, but this did not restore German nationality involuntarily to expatriated nationals: Oppenheimer v. Cattermole,  A.C. 249 (tax case, interpreting German Basic Law provisions on nationality of expatriated German Jews). Avery Jones v. Internal Revenue Comm’rs,  2 All E.R. 898, denied a treaty advantage to a U.S. citizen to whom British nationality was involuntarily attributed upon her marriage; such cases are improbable today (compare Airola v. Commission,  ECR 221 (Italian nationality acquired upon marriage; foreign posting allowance eligibility restored by the court).
Of course, if your bank or the IRS has already decided that you’re a “U.S. Person” on the basis of your ascendancy, their forms have no space for you to write in citations to international law journals and old court cases to try to prove that you are
not a camel solely a citizen of the country in which you reside.