This of course is the infamous Japanese American internment provision that has not been used since the 1940s and which Chuck Schumer attempted to get repealed as part of “comprehensive” immigration reform.
http://www.cadc.uscourts.gov/internet/opinions.nsf/DB41AEB1927849CF85257D2E004E3FC8/$file/12-5200-1506785.pdf
http://www.sacbee.com/2014/08/08/6615081/appeals-court-allows-inmate-to.html
“For reasons we do not understand, Aaron Schnitzler, a South Dakota state prisoner, wants to renounce his United States citizenship,” Garland wrote. “For reasons the government has failed to explain — or rather, for a host of ever-changing reasons — it has made it impossible for him to do so.”
Schnitzler is nearing the end of a 15-year sentence for sexual conduct with a child under the age of 16. Starting in about 2010, he embarked on what Garland termed a “merry-go-round” of entreaties to a variety of federal agencies, in search of his citizenship renunciation. Frustrated, he sued.
Among other arguments, the government said an in-person interview is required to request renunciation. But, since Schnitzler is incarcerated, such an interview was impossible. He’d have to wait until he was released. Not good enough, Schnitzler says.
“’I want to renounce citizenship while in prison right now!’ he said,” Garland recounted.
The important thing here: Schnitzler is challenging the “in-person” requirement of how USCIS handles (a)(6) renunciations. USCIS argues that they need to do the in-person interview to assess whether a person would be a threat to national security if he renounces. (He is also challenging the constitutionality of the “in a foreign state” part of (a)(5), though I doubt that part will succeed.) The judge thinks Schnitzler is nuts (look at his snide comments at page 13 of the ruling), but also he’s rather annoyed at USCIS for the half-assed way in which they handled the case (not even bothering to mail their rejection letter to Schnitzler).
I also note with amusement that the government dropped its argument that (a)(6) cannot apply because the US is not in a state of war. I suppose they do NOT want a circuit judge to get a chance to rule on that little tidbit. That’s probably the whole reason they abandoned the Kaufman appeal and started pursuing the legislative repeal angle instead.
A bit more discussion on the old post about the Renunciation Act of 1944:
http://isaacbrocksociety.ca/2013/04/17/immigration-reform-bill-would-repeal-ina-provisions-on-renunciation-of-u-s-citizenship-during-wartime/
And for good measure, here’s a pointer to the Wikipedia article (which discusses Schnitzler’s initial renunciation case in the DC District Court, though not his appeal)
https://en.wikipedia.org/wiki/Renunciation_Act_of_1944
@Eric, you are spot on with the inperson requirement and if a Court ruled that unconstitutional all of us would be winners.
The rest of the Western world has mail in, with a short form, to renounce citizenship. They treat renouncing as you are going out of your way to notify them the government!
To be honest, I can not see how the existing renouncing or even the process to get a CLN for relinquishers that want one can in any way be considered constitutional.
The US government will make up some reason why the person needs to go to the embassy, for example, to check their ID. However it could be challenged a notary public would be good enough.
It’s just another example of Schumer trying to handcuff people to the US.
Just for kicks: if Schnitzler, Kaufman, or one of these other guys really succeeds at renouncing, and then leaves the United States, is the IRS going to try to continue to tax them as U.S. Persons?
This goes back to 26 USC 7701(a)(50)(A),the infamous “citizen for tax purposes but not for citizenship purposes” statute: it says anyone not treated as relinquishing under 877A(g)(4) is still a U.S. Person. Renouncing under 8 USC 1481(a)(6) is not an event which triggers 877A(g)(4). Only four events do: renouncing under (a)(5), relinquishing under (a)(1) to (4), State issuing a CLN to you, or a court denaturalising you.
Furthermore, State has no statutory authority to issue a CLN to an (a)(6) renunciant: 8 USC 1501 says they can only issue CLNs to people who lost US citizenship while in a foreign state, not while in the United States. Since 877A does not apply to you, you do not have the right to file a Form 8854, per 26 USC 6039G(a).
Re; “…USCIS argues that they need to do the in-person interview to assess whether a person would be a threat to national security if he renounces….”
Right. So we have all the rest of the world being screened who seek to enter the US because they ARE NOT US citizens. But also, all those US citizens OUTSIDE the US who renounce – and therefore seek to give up their citizenship rights to enter the US as a US citizen are also pre-emptively screened as national security risks DESPITE voluntarily completing a process giving up their right to enter? They are already OUTSIDE the US. The US has databases that would flag the renunciant forever into the future, and prevent them from entering, or restrict their access just like any other non-US person seeking to visit. So how is it necessary to assess all those renouncing as potential national security risks if they are already coming forward to pro-actively and consciously give up all special citizen entry rights?
The consequence of forcing people to attend in-person is that those who are not mobile, have significant health/disability or economic barriers which prevent them from travelling to the consulates/embassies are prevented from renouncing and must remain US citizens. Add that to those who can’t afford the 450. fee charged to renounce if they can only renounce (vs. relinquishing), and also those precluded from renouncing due to other factors (minors and those with diminished capacity who have been deemed legally incompetent). Add in the accounting and perhaps legal fees to complete the final filings, the 8854, etc.
This is the way of the land of the ‘free’ and the home of the brave – treat ALL those who seek to renounce/relinquish as potential national security threats, erect significant economic and legal barriers to those vulnerable because of age or disability ( minors and those with disabilities who aren’t mobile or who are deemed incompetent), and attempt to punish all who are successful with complex forms, penalties for missteps, and an exit tax for those with a certain asset level even if all amassed outside the US.
We’re treated like criminals if live outside the US and we seek to retain our birthright US citizenship – continually forced to prove false the US presumption that we are money launderers, “drug kingpins”, terror funders, and organized crime gang members via the FBAR and now under external scrutiny and automatic reporting by FATCA FFIs and non-FFIs merely because we have to have local accounts in order to live – which are ‘abroad’ because that is where we are. But, we’re also presumptively treated like criminals (via last filings and exit tax provisions) if we live outside the US and we seek to extinguish our US status (in person screening at consulate/embassies to renounce/relinquish).
Basically, the US has criminalized living outside the US.
What about the CLN necessity itself?
The rules state that we have a right to drop our citizenship so aren’t the delay tactics and the need to get the USG to give us a piece of paper – and that we have to do it all in person and on foreign soil no less – unconstitutional?
I agree that the best outcome for us would be that we would be allowed to just send in a form and receive a form answer. Quicker, cheaper for everyone including the USG, but it would be problematic for them because it would mean accepting people back in the future just as easily as they left.
However, if the USG went to the same system as s the rest of the world (something their ego stands in the way of) it is a solid – baby – step towards the death of the practice of nationalism because it would be saying “citizenship is up to the person and the person can change his/her mind and essentially shop around for countries of residence.
I don’t think this would catch on wildly. People are too change averse, tribal and zenophobic overall for this to spark mass migration (and poverty/corrupt govts would also factor) but I would welcome the reality of real freedom of movement and freedom to give or withdraw allegiance based on what country is providing it and has earned it.
The Courts in the USA have ruled that to register to vote, you essentially self certify that you are eligible and then mail a form back. You are not even required to include your SSN if you do not want to.
The same courts have also ruled that you do not need to present ID to register or to vote!
Why so easy? To protect your “right to vote” under the constitution.
But if you clearly have relinquished and fully intended to get rid of UNWANTED US Citizenship you have to jump through an array of forms, hire professionals, travel what could be long distances and present lots of identification.
All that to dump something you do not want…..so much for constitutional rights.
Illegal migrants coming into the US have more constitutional protection than emigrants.
@YogaGirl, “What about the CLN necessity itself?”
The reality is that a CLN is not required under US Code!! That has been verified in transcripts from Congress.
The law has been perverted by members of congress and civil servants.
In the United States, when a naturalised citizen shows their citizenship papers it is accepted as FACT that they renounced all other nationalities!!
George, exactly. So why do those of us who took on another citizenship need do anything at all. I know the SCOTUS ruled that the US couldn’t strip us of citizenship for taking on another so they know simply presume we are duals but it shouldn’t require hurdles to inform them otherwise.
And since a CLN isn’t legally required, why is it part of the IGA? I know the IGA allows for self-certification but it also allows for banks to insist on an IGA.
And of course there is the IRS which seems to believe it can ignore citizenship law and keep us on the rolls until we have a CLN but is that written in a regulation or just something they have made up as part of the hoop thing?
@YogaGirl, “And of course there is the IRS which seems to believe it can ignore citizenship law and keep us on the rolls until we have a CLN but is that written in a regulation or just something they have made up as part of the hoop thing?”
Just like the service requiring a CLN, they spun the IGA out of thin air.
So an IGA that has no legal basis in US law has a requirement fro a CLN which has no basis in US law.
I have become extremely cynical about all this and have come to the consclusion that as the fiscal situation gets worse in the USA they will redefine US Person to include those that have a CLN.
To @All, my main concern is that if a US citizen were to successfully renounce whilst imprisoned that he or she would no longer ‘enjoy’ any constitutional protections, especially if stateless; who’s to say that they wouldn’t wind up in Guantonomo Bay or some similar black hole??
George, so here’s another question. Since a CLN has no legal basis, what if a Canadian simply self-certified and threatened legal action if a CLN was required of them? After all, the US clearly states that taking another citizenship with intent is a relinquishing act. Documenting that before a notary or commissioner of oaths here should suffice if a simply “yes, I am only Canadian” doesn’t do it.
And I understand this doesn’t solve the delusional and deceptive IRS issue, but it would work if you have few to no US ties and don’t travel there, right?
@Monalisa1776, Hip Hip Hooray…….no more moaner. 🙂
Cheers!
@YogaGirl. a person can make a Statutory Decleration/Affadavit in Canada and I would suggest that a decleration made with a notary/lawyer should suffice to attest the fact that a person has relinquished US Citizenship and is Canadian.
The necessity for a CLN – (and all the hoops and conditions that it is predicated on) is like requiring that even though we have renounced/relinquished, the US can control/own us forevermore. Isn’t that like saying that we are still bound to it in some way which can never be extinguished? I don’t see how our home countries can legally agree that we must obtain and provide the CLN as proof that we are no longer a citizen of another ‘foreign’ country, the USA – forever or face extraterritorial enforced punishment and controls on our legal local banking.
This is why the ADCS legal challenge http://www.adcs-adsc.ca/ and our human rights complaint http://isaacbrocksociety.ca/2014/07/28/human-rights-complaint-on-behalf-of-all-u-s-persons-abroad-has-now-been-submitted/ MUST succeed. Otherwise, the US controls us forevermore. Even those with CLNs who never enter the US again are controlled in their own home country if they might be forever forced to produce one. That is disgusting – that is like feudalism – where we are still ‘owned’ in some sense even outside the legal boundaries of the US. And the now very significant wait to even get a renunciation apt with the Toronto consulate, plus the existing delay in obtaining the CLN is violating people’s human rights. The international human right to *choose one’s nationality is violated where significant barriers are erected – whether by design or by ‘accident’ which prevent one from exercising such a right. Rights delayed are rights denied. Justice delayed is justice denied.
Our rights are being violated now by BOTH our country of birth (or naturalization) AND our home country of residence.
*http://www.un.org/cyberschoolbus/humanrights/declaration/15.asp
“15. Everyone has the right to a nationality.
No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”
“PLAIN LANGUAGE VERSION:
You have the right to belong to a country and nobody can prevent you, without a good reason, from belonging to another country if you wish.
Illustrated version
NOTES:
One’s nationality can be a part of one’s identity and sense of belonging. At the same time, conflicts have often been focussed on various issues linked to nationality, such as ethnic differences, territorial rights and expulsion of people.
DEFINITIONS:
Having a nationality means that a person is a citizen of a country with all of its legal benefits, such as the right to participate in elections, as well as its social ones, such as access to education and health care.”
Why is it so crystal clear to us – and especially as you point out over and over again, Badger, but not at all comprehended by those in the USA?
Are all of the world’s documents of human rights nothing but a sham?
@calgary, it made me laugh (ruefully) that the quote I cite above came from a plain language explanation of the UN Declaration of Human Rights re citizenship, yet the might of the US allows it to remain unexamined and unchallenged at home and on the world stage.
The US stands alone in its system of CBT, and its sham of pretending that we are ‘residents’ of the US for tax and penalty purposes, yet not for any other possible benefit. It extends its assertions of obligations and enforces control over those abroad, yet provides no care or supports for those in need. It is controlling people by making it hard to excise their US status and citizenship, while making them line up to assess them as security threats and attempting to stripping them of assets which it has no just and ethical claim to.
What part of that can the rest of the globe not comprehend as wrong?
Might makes right.
More coverage of the case this post refers to:
http://www.mcclatchydc.com/2014/08/08/235860/appeals-court-allows-inmate-to.html
““It may well seem incongruous that, at a time when many people are trying hard to obtain American citizenship, Schnitzler regards himself as ‘injured’ by his inability to renounce it,” Garland wrote. “Nonetheless, the fact that we, or the government’s attorneys, would not ourselves feel ‘prejudiced’ by being required to remain in citizenship status does not mean that Schnitzler has not suffered an injury in fact.”
Read more here: http://www.mcclatchydc.com/2014/08/08/235860/appeals-court-allows-inmate-to.html#storylink=cpy“
Re: permanent ownership….
Don’t forget that the U.S. reserves the right to revoke CLNs any time on any pretext it chooses.
@Shovel, if what you say is true, then no one can ever enjoy complete certainty with the IRS.
This talk of not providing services reminds me that someone on the FB Americans in Canada site posted an alert from the Toronto consulate about some protest coming up and how Americans should steer clear b/c, I guess, the streets of Canada are teeming with dangerous ppl who target Americans. And then it went on to remind us all to register with the consulates.
I objected a bit. Just pointing out that Canada is hardly a country where American residents and duals need to fear for their lives and that Canada itself has an obligation to its citizens and residents so we were hardly in danger nor did we need warnings.
omg, the disdain and I didn’t even point out that the US really offers no actual help to citizens “abroad” regardless of the situation and that people who live permanently in other countries aren’t really US citizens except for tax purposes anyway.
I will be able to relinquish soon (CIC assumes me this is true) but my concern is now for my child. How possible is it going to be for her when she is finally deemed old enough? I am afraid not very and am angry about what this is going to do to her life and how it will limit her opportunities.
@YogaGirl, the seed as to why a CLN is not required lays with 8 U.S. Code § 1488;
“The loss of nationality under this part shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this part. ”
http://www.law.cornell.edu/uscode/text/8/1488
And the Expatriation Act of 1868 which remains US Law;
http://en.wikipedia.org/wiki/Expatriation_Act_of_1868
So why and when a CLN be required? The USA is a foreign country and they can require anything for you to enter said foreign country. It has also been required for tax purposes. But it is not required for loss of citizenship on relinquishment. Hence that is why I think IGA language evolved from renounce to relinquish.
Basically a CLN is likely to be required for crossing the border at some point in the not so distant future – if one has a US birthplace. I still think that ppl who have foreign birthplaces and never were registered or did anything else that might out them will be the lucky ones down the road.
As long as one has to access the US, for whatever the reason, relinquishing or renouncing is an exercise in semi-futility. 2nd class stigma will always be an issue with varying degrees of inconvenience and frustration.
I’m an accidental citizen living in South Africa and I work in finance, so I exist at the intersection of both targets of FATCA legislation. Consequently I’ve known about FATCA, my US birthplace indicium and CLNs long before most in the global financial industry.
I used to love meeting black Americans when I traveled to the USA. I’d say: “I’m a real African American, I mean have you ever been to Africa?”. I’m white; they laughed.
More recently I’ve been quoting “No taxation without representation” to Americans that I meet, in an effort to raise awareness of how their system has become everything that their founding fathers despised. Most recently, however, I’ve gone biblical. As my colleagues became aware of FATCA legislation, and it’s most discernible criterion: a U.S. place of birth, it started to dawn on me: I was born with ‘the mark of Cain’.
For years this has really bothered me. Am I going to have to produce a CLN and prove my credentials each and every time I take a step forward in life? In an earlier comment, Badger likened this scenario to feudalism. I moved to South Africa as a child during apartheid, and recall my dad having to procure a government document (pass) so that we could employ a black man, and that he needed that pass to achieve anything in life. I remember being aware that this was some form of government injustice, but until very recently you could have offered me incalculable odds, and I’d never have anticipated this reversal of fortune. (Nelson Mandela RIP)
But I digress. The comments here are discussing CLNs.
There are too many IGAs, so I’ve just looked at the Canadian and South African ones. ANNEX I II B 4 a) (3) (a) and (b) of both agreements provide some welcome relief. It seems that The State Department’s common sense has prevailed over Treasury’s avarice: we can explain to our bank how we relinquished U.S. citizenship before the State department started issuing CLNs, or convince them you are the child of the then Canadian Ambassador to Washington.
Frankly, any bank that would accept that will probably be willing to type “CLN” into Google images and press print for you.
@Domino: “we can explain to our bank how we relinquished U.S. citizenship before the State department started issuing CLNs”
Perhaps you mean before it became vitally necessary to have a CLN?
This was essentially in 2004. For instance, the Joint Committee on Taxation (2003), in discussing CLNs, stated, “There is no obligation for an individual to obtain a CLN or otherwise notify the Department of State of relinquishing one’s citizenship.”
http://www.gpo.gov/fdsys/pkg/GPO-CPRT-JCS-2-03/pdf/GPO-CPRT-JCS-2-03-7-2.pdf
For the record, the CLN goes back at least to 1952.
Immigration and Nationality Act of 1952, Chapter 4, Section 358: “Whenever a diplomatic or consular officer of the United States has reason to believe that a person while in a foreign state has lost his United States nationality … he shall certify the facts … in writing…. If the report … is approved by the Secretary of State, a copy of the certificate shall be forwarded to the Attorney General, for his information, and the diplomatic or consular office in which the report was made shall be directed to forward a copy of the certificate to the person to whom it relates.”
http://library.uwb.edu/guides/usimmigration/66%20stat%20163.pdf
One ironic twist surfaces from these documents.
Get this… the JCT points out that at the time of their report there is no legal obligation on the part of anyone who has relinquished to have a CLN; but on the other hand, the INA says that ever since 1952 there has been a legal obligation on the Department of State to ensure that everyone it knows about who has relinquished is issued a CLN.
What a bunch of scofflaws State is. Those who didn’t get their CLNs should sue.