Are you an emigrant from the United States — a young adult getting your start in life, an elderly retiree on a fixed income, or just an ordinary person down on your luck — who can’t afford the world’s most expensive fee for renouncing citizenship? Has the State Department arbitrarily refused to recognise your clear relinquishment of U.S. citizenship under 8 USC §1481(a)(1) through (4), knowing that you don’t have time or money to take them to court to assert your inherent right to change your nationality?
Well, here’s another option for you to get the Homeland off your back: vote Scott Brown (R-NH) for Senate! (Though of course, don’t do it if you are in the process of trying to convince the State Department that you relinquished U.S. citizenship.) A recent article in The Hill explains:
New Hampshire GOP Senate candidate Scott Brown unveiled a new video hitting President Obama on his foreign policy and pressing Congress to revoke the citizenship of Americans who join the Islamic State in Iraq and Syria …
Brown cited two bills he introduced while serving as a senator from Massachusetts that would have stripped U.S. citizenship from those “providing material support or resources to a foreign terrorist organization” or “actively engaging” in hostilities against the U.S. or allies.
Brown’s two earlier bills on this topic were S. 3327 in the 111th Congress and S. 1698 in the 112th, both co-sponsored with Joe Lieberman (I-CT) . They were similar in intent to Canada’s more recent Bill C-24, which we previously discussed here, here, and here.
Unfortunately, Brown’s bills as written — aimed primarily at members of ISIS and similar groups — might be a bit too narrow to support automatic revocation of U.S. citizenship for Alliance for the Defence of Canadian Sovereignty donors. But that shouldn’t be too hard to fix — after all, ADCS donors are people who deliberately consort with America’s ancient enemy, lionise a notorious anti-American military leader, and are now offering material support to a hostile foreign campaign to defeat U.S. government policy abroad!
Citizen for tax purposes but not for citizenship purposes
To help American emigrants, Brown’s proposal might require some technical amendments to the tax laws, for example 26 USC § 877A(g)(4):
Relinquishment of citizenship— A citizen shall be treated as relinquishing his United States citizenship on the earliest of—
(A) the date the individual renounces his United States nationality before a diplomatic or consular officer of the United States pursuant to paragraph (5) of section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481 (a)(5)),
(B) the date the individual furnishes to the United States Department of State a signed statement of voluntary relinquishment of United States nationality confirming the performance of an act of expatriation specified in paragraph (1), (2), (3), or (4) of section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481 (a)(1)–(4)),
(C) the date the United States Department of State issues to the individual a certificate of loss of nationality, or
(D) the date a court of the United States cancels a naturalized citizen’s certificate of naturalization.
As you can see, certain expatriating acts are absent from this list: renunciation of citizenship under the Renunciation Act of 1944 (8 USC § 1481(a)(6)), or conviction for treason or similar crimes (8 USC § 1481(a)(7)). Similarly, if Brown’s bill succeeds in adding a new numbered paragraph to 8 USC § 1481(a) to strip citizenship from Enemies of the State automatically, the IRS would not be required to recognise the resulting loss of citizenship either.
In short, even if you commit one of those acts, you remain a citizen for tax purposes, despite your loss of citizenship for citizenship purposes (26 USC § 7701(a)(50)), at least until the State Department issues a CLN to you. And not only has State proven itself to be rather slow at issuing CLNs, if you were in the U.S. rather than outside of it when you committed your expatriating act, State has no authority at all to give you a CLN in the first place (8 USC § 1501).
So if you’re on holiday in the U.S. and planning to make a donation to ADCS in hopes of being stripped of your U.S. citizenship, better wait until you get back to the comfort of your own home before you whip out your credit card. And hopefully Brown will update his bill to account for the amusing technical details discussed in this section — unless he thinks that the U.S. should strip citizenship from terrorists but then keep pursuing them around the world for future taxes, the way the country already does with normal people who want to get rid of U.S. citizenship but can’t.
Bipartisan agreement on exile for certain ex-Americans
Senator Ted Cruz (R-TX), who formerly owed allegiance to the U.S.’ northern enemy until he renounced it for a fee of CA$100 (about 4% of the U.S.’ new fee), supports Brown’s position and has introduced a bill to give it legal effect:
There can be no clearer renunciation of US citizenship than going to Syria or Iraq to fight w/ ISIS terrorists: http://t.co/6WqgPUadmq
— Senator Ted Cruz (@SenTedCruz) September 5, 2014
Of course, writing “I renounce U.S. citizenship” on a piece of paper with your identifying details, signing it in the presence of a witness, and mailing it to the nearest U.S. consulate along with your U.S. passport (if any) makes your intent just as clear, but the State Department refuses to recognise this anymore either, even though they used to back in the 1970s and normal first-world countries like Ireland and Australia and indeed Cruz’ old country of Canada continue to recognise this procedure today.
Update, 8 September: Temple University law professor Peter Spiro, who earlier did an in-depth analysis of the constitutionality of previous legislative proposals along these lines, disagrees in general that findings of loss of citizenship under these proposals would be constitutional. However, he suggests that shredding your U.S. passport on video (as did Adam Gadahn) might be sufficient for the State Department to infer your intent to stop being a U.S. citizen. In a post a few hours ago over at his group blog Opinio Juris, he wrote (bold and italics mine):
The problem: as per the Supreme Court, any expatriating conduct must be undertaken with the specific intent to relinquish U.S. citizenship. To strip an ISIL fighter under this amendment, the government would have to show not just that someone had fought with ISIL, but that he consciously intended to give up his citizenship by so doing. That would be impossible to show in the ordinary case. Al-Qaeda operative Adam Gadahn is the only notable case from the post-9/11 era in which it might work: in a jihadist youTube, he shredded his U.S. passport.
Note that being designated as an Enemy of the State under these proposals would probably have some negative effect on your ability to visit friends and relatives in the U.S.:
He urged Congress to take action. “We need to keep our country safe by stopping these American ISIS fighters from re-entering the country,” Brown said.
But the other side of the political spectrum supports a permanent ban on re-entry for ex-Americans too. In other words, there’s bipartisan consensus for an acronym: Exile and Punishment for American T-s Residing In Other Territories — they just have to come to an agreement on whether the “T” should stand for “tax filers” or “terrorists”, or maybe both.
And Brown’s opponent Jeanne Shaheen in particular is a major supporter of Carl Levin’s efforts to make living & saving in other countries even more difficult for people tainted with a U.S. place of birth. So it’s not as if voting against Brown would solve any problems either.
Vote Scott Brown for Senate and renounce and be free, for free!
Brockers need to address their concerns with lawn signs and bumper stickers, BOYCOTT USA REPEAL FATCA. This is true especially if your front lawn is along a road in southern Ontario frequented by USA persons or in a tourist area. Curious tourists will look up FATCA in the search engine.
Another (narrower) version of this idea introduced last week by Cruz in the Senate and Steve King (R-IA) in the House: the Expatriate Terrorist Act. Basically it would add “foreign terrorist organization” as an equivalent to “foreign state” in INA 349(a). Unlike the earlier bills, it wouldn’t add “material support to a foreign terrorist organization” as a new expatriation criteria.
Steve King (R-IA) introduced the Expatriate Terrorist Act again last week. “Material support to a foreign terrorist organization” is in there. (Amusing problem: his bill fails to make conforming amendments to 26 USC 877 & 877A to account for the renumbering of the paragraphs of 8 USC 1481. E.g. renunciation before a U.S. diplomatic officer in a foreign state would become 1481(a)(6) again, but 877 would continue to say that only (a)(5) and not (a)(6) establishes an expatriation date for tax purposes.)
Ted Poe (R-TX) would only revoke terrorists’ passports but not their citizenship