A few days ago, calgary411 and others pointed to a Washington Post article about a recent update to the Foreign Affairs Manual:
In February, [Reaz H. Jafri, a partner at Withers Bergman] received an e-mail that State’s Foreign Affairs Manual had been revised to instruct diplomats that a U.S. passport can be returned to the “intended expatriate” if she or he needs to travel to the United States before the “loss of nationality case is approved.”
Of course, if a person has already lost U.S. citizenship, it is illegal both for the State Department to give the person a U.S. passport (22 USC § 212), and for the person to use that passport enter the United States as a citizen — such usage is not only a federal crime (18 USC § 911), but makes you inadmissible to the United States in the future (8 USC § 1182(a)(6)(C)(ii)). So, according to a Wednesday article by Mr. Jafri himself, the State Department takes the legally-dubious position that you are still a citizen until they say you aren’t:
[The Department of State’s] long-standing position has been that while the CLN was pending, the renunciant remained a U.S. citizen and thus was ineligible to be issued a visa to visit the U.S. for business, pleasure or other purposes (U.S. citizens are not eligible for visas).
The Second Circuit might be rather surprised to hear that, considering what they wrote in United States ex rel. Marks v. Esperdy, 315 F.2d 673 (1963):
It is equally clear that Congress sought by the enactment of Section 356 of the Immigration and Nationality Act of 1952, 8 U.S.C. 1488, to have loss of nationality occur immediately upon the commission of expatriating acts: ‘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.’
That case concerned a relinquisher rather than a renunciant:
If Marks lost his American citizenship by virtue of service in the Cuban Armed Forces, as we are constrained to hold that he did, he became an alien in 1959 at the time the expatriating acts were committed, not at the time his alienage was judicially determined.
Congressional intent and executive interpretation
However, Section 1488 itself makes no distinction among the different ways of losing citizenship. The Department of Justice, for its part, accepted as recently as 2002 that none of the changes to intent and burden of proof in expatriation cases in the latter half of the 20th century did anything whatsoever to shift the legal timing of a person’s loss of citizenship: it still occurs on the date the expatriating act is committed, not on the date of administrative or judicial approval.
Going even further back, Congress clearly never intended that the exercise of the fundamental human right to change one’s citizenship should have to wait for government imprimatur. As Edwin D. Morgan (R-NY) stated during the debate on the Expatriation Act of 1868, in response to a provision that he thought would require people to obtain proof issued by their former country that they had renounced its citizenship:
In the grand question of the right of expatriation my colleague and myself fully agree; but I hold that the best evidence of the intent to expatriate one’s self is the very act of expatriation; and that no Government should impose conditions as to the exercise of this right. If a Government can impose conditions upon which a citizen or subject can expatriate himself, then it has equal power to prohibit expatriation altogether.
Now, sir, suppose that we did enact a law providing that a declaration before a competent tribunal should be held to be the evidence of the intent to expatriate one’s self, and that the Governments of Europe adopted similar regulations, could we, with such a law upon our own statute-book, naturalize any subject of such foreign Power who did not bear with him the evidence of having declared his intention to expatriate himself before he left his native country? Certainly not. And yet, sir, to refuse to naturalize him would be admitting that expatriation was a privilege granted by a prince, instead of being an inalienable right derived from Almighty God.
And when it comes to citizenship for tax purposes (rather than citizenship for citizenship purposes), Congress spoke even more explicitly when they enacted 26 USC § 877A(g)(4) and § 7701(a)(50): a renunciant loses U.S. tax personhood on the date of renunciation. The only people who lose U.S. tax personhood on the date of CLN approval are those who get a CLN “by surprise” without either having renounced nor signed a DS-4081 relinquishment statement — apparently, this only means people whose relinquishing act is to take a policy-level position in a foreign governments, to which is inapplicable the presumption of intent to retain U.S. citizenship (22 CFR 50.40(a)).
The motivation behind these sections was quite clear: modern Congresscritters abhor the idea that anyone abroad (besides an American Samoan) could exercise the rights of Americans while not being a U.S. person under the “Internal” Revenue Code — and travel to the Homeland on a blue passport is clearly one of those rights.
Why not let renunciants apply for U.S. visas immediately?
It seems the folks at Withers Bergman also tried suggesting to State that renunciants should instead be allowed to apply for visas immediately after swearing the Oath of Renunciation, but for whatever reason, State decided to reject that option:
The lack of conformity left renunciants in a state of limbo with no clear guidance while waiting for the CLN.
Based on client experience and feedback, Withers raised the unconstitutionality of the legal dilemma with DOS and argued that a either the U.S. passport be returned to a renunciant or a temporary visa be issued. Seeing the merits of the legal and constitutional arguments made by Withers, DOS changed it policy.
The State Department in fact don’t give a damn what the Immigration and Nationality Act actually says: they spent four decades misinterpreting another part of it to require dual citizens to use a “United States passport” to enter the U.S., when the law actually only said “valid passport” — until Congress decided to paper over State’s malfeasance in a “technical corrections” act. And even if you get State to obey the law and treat you as a non-citizen while you’re waiting for your CLN, they can take their revenge by denying you a visa anyway and hiding behind the shield of consular nonreviewability.
只許州官放火，不許百姓點燈 — the officials can commit arson, but ordinary folks aren’t even allowed to light lanterns.
Small mercies?
Well, that’s kind of a depressing note on which to end this post, so let me point to something a bit cheerier. All the coverage has focused on the return of the U.S. passport to the renunciant for travel to the United States, but there’s something potentially far more significant in the most recent FAM update: an explicit policy on cancelling the U.S. passport and handing it back to the renunciant immediately. 7 FAM 1227(e)(5):
(5) If the intended expatriate advises the post that he or she needs the U.S.
passport immediately because it contains valid foreign visas, the post may cancel the book in accordance with 7 FAM 1300 Appendix Z, “Cancellation of Passport Books and Passport Cards.” Do not damage the entry/exit or visa stamp or foreign visas;
If they stamp it with the famous “Bearer expatriated self” stamp at that time, then you will have a proof of renunciation in your hands on the same day — which in some circumstances might be just as good as a CLN for proving that you are no longer a U.S. citizen. However, 7 FAM 1300 Appendix Z does not appear to be available online, so we’ll just have to wait for future renunciants to try this and see what happens.
@Eric:
The 11th circuit said differently:
Werner T. Heuer, Plaintiff-appellant, v. United States Secretary of State, Defendant-appellee, 20 F.3d 424 (11th Cir. 1994)
http://law.justia.com/cases/federal/appellate-courts/F3/20/424/523295/
The D.C. circuit said the same thing
http://www.uniset.ca/naty/maternity/2FSupp2d43.htm
@Eric
I know of a case in January 2015 when a the newly-minted renunciant asked the consular official to whom he had surrendered his US passport and affirmed the oath of renunciation, “Suppose one of my parents falls dangerously ill. Can I fly to the US tomorrow and enter by means of ESTA and the visa waiver program?” The answer given by the consular official was “Yes, certainly”.
I can see that in cases of some relinquishments there is a potential for a dispute of facts and for the relinquishment to not be approved. Perhaps these are the ones for which the return of a passport is envisaged. However, when the relinquishment is by means of an oath of renunciation according to Section 349(a)(5) of the Immigration and Nationality Act, there is surely no prospect whatsoever that the CLN will not be approved. The consular official was correct in saying that a visa can be immediately obtained.
I thought I recall reading somewhere that a renunciation could be refused if it was thought that it was being done for tax purposes.
Right hand not knowing what the left hand is doing, or not giving a hoot what the left hand is doing.
@B: Thanks for those. With regards to the 11th Circuit one, personally I don’t understand how 8 USC 1501 can be read that way. It doesn’t say State can issue a CLN if it has reason to believe a person is “about to” lose nationality, but that the person “has lost” nationality, pluperfect: the loss is asserted to be done and completed, and State’s only role is to determine whether it actually occurred. The statute of limitations might start to run at the CLN issuance date, but that date is clearly after the loss of nationality, not the same as the loss of nationality.
Lozada-Colon is even more troubling to me (in a moral rather than a legal sense). It’s yet another waypoint in the trend of State taking all the court rulings in favour of those who had been denied U.S. citizenship when they wanted to keep it, and learning how to use them as a weapon against people who want to give it up. They’ve extended Lozada-Colon in even more disturbing directions recently (I’m thinking in particular of Weber v. Department of State, where the court ruled that the fact that Weber had used a VA hospital before his renunciation could be a reason for State to find he lacked intention to renounce.)
http://www.gpo.gov/fdsys/pkg/USCOURTS-dcd-1_12-cv-00532/pdf/USCOURTS-dcd-1_12-cv-00532-0.pdf#page=13
@ricard: Thanks for that report. Yes, that approach would make more sense to me too: there’s an obvious difference in State’s role in relinquishments vs. renunciations. I think this whole mess comes down to someone at State taking offence at how the Third Circuit characterised their CLN issuance power in renunciation cases in Whitehead v Haig (a case cited in one of the rulings that B mentioned):
http://openjurist.org/794/f2d/115/whitehead-v-m-haig-e-whitehead
Basically, since the court found that CLN issuance to renunciants doesn’t involve administrative proceedings, State decided to invent some administrative proceedings.
My family doesn’t have $60,000 handy to renounce. Because that’s what it would take to deal with all the paperwork and crap needed to renounce. My wife is going after her Canadian citizenship and when she gets that; the US citizenship is getting the boot. CLN or no CLN – the State Department can KISS MY ASS!!!
After Fledermaus’ comment over on the relinquishment thread, I realised the “return the passport” policy applies to relinquishers as well as renunciants. That’s just completely absurd. State tells relinquishers who used a US passport after their relinquishing act but before reporting it to the consulate that they voided their relinquishment. But now they’re telling relinquishers after they’ve reported to the US consulate that they’re still US citizens and to use a US passport? They can’t even be serious, they’re just trolling us to see how much BS we’ll accept without complaining.
There was a comment in 2013 whose significance I didn’t realise until now: CBP also accepts this bizarre interpretation of the INA
http://isaacbrocksociety.ca/2013/09/19/question/comment-page-1/#comment-544164
Unfortunately the only way I see this getting tested in the courts again is if a relinquisher with a pending CLN commits a crime while visiting the US and the US denies consular access on the grounds that he’s a US citizen, or something of that nature.
@Eric
Exactly. I commented on this yesterday on the “Consulate Report” thread after hearing about the change in policy to let renunciants/relinquishers keep their US passports until the CLN arrives. It’s a dangerous legal trap and I’m appalled that they’re doing this.
Eric, thanks for pointing this out.
Which is why some of us thought we had to and did RENOUNCE rather than claim relinquishment –– as my STUPID mistake of being intimidated at the border, then applying for and obtaining my first ever and only US passport (before there was an Isaac Brock Society!) when told by a US border guard “I’ll let you cross this time, but the next time it must be with a US passport” and the rest is now my sad history and financial cost of in excess of CA$42,000 for cross-border US tax and accounting firms (three of them) and a Washington, DC immigration/nationality lawyer in connection with my son’s situation. That voided my claim to relinquishment that I actually did have in 1975 when becoming a Canadian citizen I was WARNED that I would be losing my US citizenship (no mention of any CLN or any procedure to make that written in stone).
No end of playing with people’s lives — the big cat USA waiting for the little escaped mice to *paw around* (before suppertime):
There is an interesting footnote in the weber case linked by B in the first post.
Footnote 5 on page 6 states:
This seems to undercut the State departments argument. However since the case involves an American born SS concentration camp guard fighting to keep his citizenship its probably dicta and not authoritative.
During my research I found an interesting document called Survey of the Law of Expatriation written by John Woo who was Deputy Assistant Attorney General in 2002.
The document states on page 59:
“The loss of nationality … shall result solely from the … acts or fulfillment of the conditions specified in this part.”
Its clear that you lose your citizenship as soon as you perform one of the required action, the CLN is simply an acknowledgement of your actions.
https://www.youtube.com/watch?v=GTxGmEejBTc
Listen to this guy getting his facts wrong. Mike Papantonio doesn’t have a clue.
He claims the Republican attempt to repeal FATCA is of course letting tax evaders off the hook.
1. Corporations (criminal or not) are not subject to FATCA. They can quote legally keep their money abroad with the blessing of the US Government – get your facts straight.
2. You failed to mention how FATCA negatively impacts on US expats, places burdens on expats that Homelanders don’t have to deal with, and places reporting requirements and costs again on expats that Homelanders don’t have to deal with because we decided to reside outside of the US – get your facts straight.
3. Nearly 100% of expats want FATCA repealed not because we’re hiding anything (which you seem to think all expats are guilty until proven innocent), but just want the same opportunities and burdens that fellow citizens in our home countries abroad.
There must be something seriously flawed with a law when 100% of US ex-pats are against it. Why don’t you go on RT and state that fact next time.
I guess I need to change my name to LivingToRenounce… HasRenounced.
I renounced this week and was told that my CLN would be “retroactive to today’s date” and that I was “in the process of renouncing” which I interpret as meaning my renunciation is not official until I get my CLN. I was also told that, if I wanted, I could temporarily keep my US passport which would be punched out and no longer valid but it could be used to explain to border guards that I was in the process of renouncing. They ended up telling me to travel with my receipt which clearly states “Renunciation” on it.
Reminds me of the scenes in the TV series, The FBI season 6 episode 17 “Center of Peril” (1971) where one guy argues his job was to do the burglary and get the painting from the museum, which was done; and now that the would-be buyer is dead, the burglar wants no part in the attempt to sell the painting back to the museum. He quits. The boss man replies, “What do you think this is, a social club? Look, you’re in until we say otherwise.” a quote which the burglar repeats to his wife.
@Don
Talk about obnoxious! If I heard this louse say Grey Poupon one more time I would have flung my iPad. Did this guy really say that the US loses $300B in tax revenue for offshore tax evasion? The most I’ve heard is about a billion a year, and that’s from those who passed it.
I wonder why he avoided mentioning Rand Paul, the bill’s creator.
@Bubblebustin,
Perhaps because a lot of Democrats like Rand Paul, or at least find him to be the least objectionable Republican.
A speech by George Gekas (R-PA) from 1997 concerning the cases of Puerto Ricans who renounced & then came back to the US
https://www.congress.gov/congressional-record/1997/04/29/extensions-of-remarks-section/article/e766-4/
So either this bizarre State Department policy (of considering that renunciants remain citizens) is at least that old, or they were pushed take a hard line in response to cases like this and everyone else suffers for it. (These Puerto Rican cases were also the trigger for State arrogating to itself the ability to reject a renunciation by claiming that the renunciant “lacks intent”.)
Dear All – Notwithstanding what the 2nd Circuit has stated, one remains a USC until the CLN is issued. I agree that the fact the date on CLN will be the date one renounces just makes the the whole thing rather peculiar. I had proposed the idea of a special visa with an annotation that the CLN was pending but was told that was not legally possible b/c under the Immigration and Nationality Act, visas cannot be issued to USCs. While not ideal, this accommodation by DOS does bring more certainty to the renunciation process.
Reaz
@ Reaz Jafri
I don’t understand how this happens. Renouncing is a form of relinquishment. When a relinquishing act is performed, USC is lost, just not documented. Someone who works for a foreign government (i.e. not US government) with the intention to lose USC loses their USC regardless of whether it’s documented with a CLN or not.
So is what you’re saying is that renouncing follows different rules than other forms of relinquishment?
Yes, Kathy, that is exactly what I am saying.
@Mr. Jafri: thanks for stopping by. So what happens to a child who is born between his parent’s renunciation date & CLN issuance date? We all signed Form DS-4081 on the understanding that “Upon renouncing/relinquishing my U.S. nationality, I will no longer be able to transmit U.S. nationality to my children born subsequent to this act”. I hope State wasn’t lying to us again.
@ Reaz
“but was told that was not legally possible b/c under the Immigration and Nationality Act, visas cannot be issued to USCs.”
Just because it is true that under the INA visas cannot be issued to USCs, it does not follow that you were told the truth about the USC status of someone who has renounced.
@ Reaz
“the fact the date on CLN will be the date one renounces just makes the whole thing rather peculiar.”
Actually, this only increases the probability that you were told a falsehood.
“…………..Some groups are especially vocal about their tax plight. Dual citizens in Canada who are trying to shed their U.S. citizenship have created a backlog at the U.S. consulate in Toronto.”
“Can you keep your U.S. passport while you are trying to get your renunciation approved? The U.S. State Department has updated its Foreign Affairs Manual so individuals can keep their U.S. passports until the renunciation process is complete. In the past, one had to surrender a U.S. passport immediately following a renunciation interview.
The change was reportedly accomplished by law firm Withers Bergman. It can help materially because U.S. citizens are not eligible for a U.S. visa, and without a passport, persons in this awkward transition status could be deprived of the ability to visit America. Consular Officers at U.S. Embassies and Consulates around the world have apparently now been instructed to return U.S. passports to any recent U.S. citizen renunciant with travel plans to America……”………
http://www.forbes.com/sites/robertwood/2015/03/11/give-up-citizenship-keep-your-passport/
@Shovel, I agree with your statement that Mr. Jafri was likely told a falsehood. This Feb. 2015 change unnecessarily muddying the waters.
If one remains a citizen up until one receives the CLN, and given the long delays in issuing this document (presently up to 9 months, and with renunciations mounting, moving forward likely longer), they’re asking for any number of complications. As Eric noted, there are issues for children of a parent waiting for a CLN. And what about taxes? If one renounces the previous year but is still a citizen into the following year, filing the final tax return in theory can be extended an extra year. And what about those entering the US w/an ESTA passport (which requires no visa)? If they’re citizens, then they’re illegally doing so, and DHS considers it a crime. And what about people who’ve made various plans after renouncing based on the fact that they’re no longer US persons? They should do exactly what about this latest change?