Held by Circuit Judges Raymond Lohier (Obama appointee, pictured at right) and Cormac Carney (Dubya appointee) and District Judge Jed Rakoff (Clinton appointee) in Morales-Santana v. Lynch, No. 11-1252-ag (2nd Cir., 2015). Ironically, given the effects this may have in Canada, Lohier himself was born in Montreal. In the opinion, released on Wednesday, Lohier wrote:
Petitioner Luis Ramon Morales‐Santana seeks review of a Board of Immigration Appeals (“BIA”) decision denying his motion to reopen his removal proceedings to evaluate his claim of derivative citizenship. Under the statute in effect when Morales‐Santana was born, Immigration and Nationality Act of 1952, §§ 301(a)(7), 309(a), (c) (codified at 8 U.S.C.§§ 1401(a)(7), 1409(a), (c) (1952)), Morales‐Santana’s father satisfied the physical presence requirements for transmitting citizenship applicable to unwed citizen mothers but not the more stringent requirements applicable to unwed citizen fathers. On appeal, Morales‐Santana argues principally that this statutory scheme violates the Fifth Amendment’s guarantee of equal protection, and that the proper remedy is to extend to unwed fathers the benefits unwed mothers receive under the statute. We agree and hold that Morales‐Santana derived citizenship at birth through his father.
It seems this ruling (if upheld on appeal) could retroactively extend U.S. citizenship to a large number of people who previously believed — and may even have confirmed with lawyers & consular officers — that they were non-citizens and would remain so for life unless they took the voluntary steps of immigrating to the U.S. and naturalising there. This includes people who do not live in the United States, and who would thus be caught in the net of FATCA and citizenship-based taxation. Who exactly will be affected? Detailed attempt at an answer after the jump.
(Update: for those of you who don’t like PDFs, the folks over at Findlaw.com have posted the opinion as an HTML page.)
Table of contents
- Overview
- Children not legitimated by 14 November 1986
- Court rejected longer residence for unwed mothers
- Circuit split; probably headed for Supreme Court
- Practical status of emigrants’ unregistered children
- Conclusion
Overview
Morales-Santana was born in the Dominican Republic in 1962 to a Puerto Rican father and local mother. The couple married in 1970, which legitimated their pre-wedlock children. At the time of Morales-Santana’s birth, 8 USC § 1401(a)(7) required the U.S. citizen parent in a mixed-nationality couple to have spent ten years in the United States, including five years after the age of 14, in order to transmit citizenship to children (1401(a)(7) is now 1401(g), but with a shorter period of required residence than at the time of Morales-Santana’s birth). However, Morales-Santana’s father had moved to the Dominican Republic less than three weeks before fulfilling that requirement. Morales-Santana later moved to the U.S. on a green card sponsored by his father, never naturalised as a U.S. citizen, and was convicted of various crimes; his attempt to claim U.S. citizenship was part of a last-ditch effort to avoid deportation to the Dominican Republic.
Some children born under circumstances similar to those of Morales-Santana, and now still living in other countries, may have been told explicitly by lawyers or consular officers that they were not U.S. citizens. They may also not necessarily have received written documentation of those discussions. The Second Circuit’s remedy for the equal protection violation suffered by Morales-Santana under U.S. nationality law — which appears to affect all similar children as well — was to:
sever[] the ten‐year requirement in §§ 1409(a) and 1401(a)(7) and requir[e] every unwed citizen parent to satisfy the less onerous one‐year continuous presence requirement if the other parent lacks citizenship.
What I am struggling to understand here is the effect of the non-severed requirements of 1409(a), i.e. those which are unrelated to the gender-and-marital-status-specific five/ten-year vs. one-year residence requirement distinction which the court struck down.
The most important other 1409(a) requirement here is legitimation. This requirement survived Nguyen v. INS, 533 U.S. 53 (2001), and went unchallenged by Morales-Santana. As I interpret it, under the Second Circuit’s ruling Morales-Santana is deemed a U.S. citizen because he both meets 1409(c) as modified to be gender-neutral and was legitimated in his minority by his parents’ subsequent marriage (since at the time, 1409(a) required nothing beyond such legitimation — and the relevant period of paternal residence — in order for the out-of-wedlock child to derive U.S. citizenship from his father).
Children not legitimated by 14 November 1986
However, in Section 13 of the Immigration and Nationality Amendments of 1986, Congress added an additional requirement to 1409(a): that the out-of-wedlock child born or legitimated after the effective date of those amendments must in his minority get his U.S. citizen father to sign an agreement to provide financial support in order to derive citizenship, unless the father is deceased. The State Department created Form DS-5507, “Affidavit of Physical Presence or Residence, Parentage, and Financial Support” in response; according to their Paperwork Reduction Act estimates for 2012, 17,784 people per year file this form. (In their current request for public comment related to their upcoming PRA renewal, 80 FR 37034, they lowered this estimate slightly to 17,716 filers per year.)
So it also appears to me that Morales-Santana has no automatic effect on children of mixed-nationality couples born or legitimated after 1986. Some children of unmarried U.S. citizen fathers who previously would have been disqualified from citizenship due to their father’s short residence in the U.S. may now get U.S. citizenship, but only after having their father sign the affidavit of support.
Those whose fathers are willing to sign the affidavit of support but don’t rush to the consulate to do so are in the best position of all: de jure, they do not receive U.S. citizenship automatically but have the option to acquire it before turning 18 if they think it will be useful to their life plans, with nothing more than a visit to the consulate for the father to sign the necessary affidavit. A few months ago on Slashdot, one such father asked for advice about whether or not he should get U.S. citizenship for his kids, and received a number of well thought-out answers, such as this one by michelcolman:
Well, if they are almost 18, why don’t you just let them decide for themselves? Explain the pros and cons, they should be old enough to understand. If you think they lack the maturity to make the decision, then they’ll probably be better off without the complexity of filing American tax reports for the rest of their lives. Basically, don’t do it unless they understand the consequences and want you to.
This is much better advice than you get from most Internet Q&A sites, even sites whose participants are licensed professionals.
One other odd note: sometimes the one-year “continuous” residence requirement imposed on unmarried parents by 1409(c) is actually harder to prove than the “periods totaling” five/ten years requirement in 1401. As a story by Amelia Shaw in the Foreign Service Journal earlier this year describes, the State Department interprets 1409(c) to require uninterrupted presence in the United States during a year; any trips across the border reset the clock to zero, and for a parent born in a border state and with relatives in the neighbouring country, such trips might have been quite frequent.
Court rejected longer residence for unwed mothers
Faced with the possibility of 1409(c) being declared unconstitutional, the U.S. government suggested that one remedy would be to strike 1409(c) entirely and thus apply the longer five/ten-year residence requirement of 1407(g)/1401(a)(7) to mothers and fathers alike, regardless of marital status. (See also page 45 of the Department of Justice brief in Flores-Villar v. United States, where they set out this argument in more detail; I presume they would have made similar arguments in the Second Circuit.) In rejecting this option, Lohier wrote:
[U]ltimately what tips the balance for us is the binding precedent that cautions us to extend rather than contract benefits in the face of ambiguous congressional intent. See, e.g., Westcott, 443 U.S. at 89 (“In previous cases involving equal protection challenges to underinclusive federal benefits statutes, this Court has suggested that extension, rather than nullification, is the proper course.” (citing Jimenez v. Weinberger, 417 U.S. 628, 637‐38 (1974), and Frontiero v. Richardson, 411 U.S. 677, 691 n.25 (1973) (plurality opinion))); Heckler, 465 U.S. at 738, 739 n.5; Weinberger, 420 U.S. at 641‐42, 653; Soto‐Lopez v. N.Y.C. Civil Serv. Comm’n, 755 F.2d 266, 280‐81 (2d Cir. 1985). Indeed, we are unaware of a single case in which the Supreme Court has contracted, rather than extended, benefits when curing an equal protection violation through severance.
This passage is firmly rooted in the Homelander world view that to give someone U.S. citizenship is to “extend” an unalloyed benefit to that person, while to take it away is to “contract” a benefit. Lohier considers this proposition so obvious that he doesn’t even bother citing a case to support it. Of course, since the Supreme Court has been filled with patriotic Homelanders since its creation, he had numerous potential options; the most absurdly exaggerated one I can find at short notice is Schneiderman v. United States, 320 U.S. 118, 122 (1943):
For it is safe to assert that nowhere in the world today is the right of citizenship of greater worth to an individual than it is in this country. It would be difficult to exaggerate its value and importance. By many it is regarded as the highest hope of civilized men.
In the specific circumstances of Morales-Santana, this view is correct. But even other Homelanders with criminal convictions have sometimes found that they’d rather be non-Americans — for example Alan Horowitz of New York, who apparently hoped that without U.S. citizenship he might be able to achieve early release from custody in exchange for deportation to his country of other citizenship.
And if you’re not a Homelander but a citizen and resident of another country entirely? Well, like Justice Goldberg said in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 184 (1963), a U.S. citizen who lives abroad:
… is not in a position to assert the vast majority of his component rights as an American citizen. If he wishes to assert those rights in any real sense he must return to this country …
In other words, you face all the “duties of citizenship” with nearly none of the benefits (please don’t tell me any tall tales about how much the Homelanders are paying for all those black helicopters come to save us — just ask the folks in Yemen). Someone who is already a citizen of another country and has a perfectly happy life there will naturally have misgivings about receiving U.S. citizenship and all its burdens, especially when the primary associated right — the right to work in the United States — is one they have no intention of ever exercising.
Circuit split; probably headed for Supreme Court
As Reuters points out, the ruling in Morales-Santana results in a split between the circuits: in United States v. Flores-Villar, 536 F.3d 990 (9th Cir., 2008), the court held to the contrary that:
Flores-Villar acknowledges that the prevention of stateless children is a legitimate goal, but contends that it cannot be furthered by penalizing fathers. In his view, the real purpose of the statute is to perpetuate the stereotypical notion that women should have custody of illegitimate children. Further, he suggests, the length of residence in the United States says nothing about the father-child relationship or the biological basis of that relationship. And understandably, Flores-Villar emphasizes that his father in fact had a custodial relationship with him. However, the Court rejected similar submissions by the father in Nguyen. As it explained:
This line of argument misconceives the nature of both the governmental interest at issue and the manner in which we examine statutes alleged to violate equal protection. As to the former, Congress would of course be entitled to advance the interest of ensuring an actual, meaningful relationship in every case before citizenship is conferred. Or Congress could excuse compliance with the formal requirements when an actual father-child relationship is proved. It did neither here, perhaps because of the subjectivity, intrusiveness, and difficulties of proof that might attend an inquiry into any particular bond or tie. Instead, Congress enacted an easily administered scheme to promote the different but still substantial interest of ensuring at least an opportunity for a parent-child relationship to develop. Petitioners’ argument confuses the means and ends of the equal protection inquiry; § 1409(a)(4) should not be invalidated because Congress elected to advance an interest that is less demanding to satisfy than some other alternative.
533 U.S. at 69, 121 S.Ct. 2053. The residence differential is directly related to statelessness; the one-year period applicable to unwed citizen mothers seeks to insure that the child will have a nationality at birth. Likewise, it furthers the objective of developing a tie between the child, his or her father, and this country. Accordingly, we conclude that even if intermediate scrutiny applies, §§ 1401(a)(7) and 1409 survive.
An equally-divided Supreme Court affirmed this in a one-line ruling (Kagan recused herself). Such rulings generally are not considered precedential, which is why the Second Circuit was free to disagree. (For a layperson’s summary of this situation, see the old Slate article “What Happens in a SCOTUS Tie?”)
Update: Professor Ruthann Robson of the City University of New York School of Law, writing over at Constitutional Law Prof Blog, mentions a possibility I hadn’t considered — that the Obama administration won’t appeal — though she doesn’t state how likely she considers that.
Practical status of emigrants’ unregistered children
If Morales-Santana really results in the State Department approving jus sanguinis citizenship for any unmarried emigrant’s previously-unqualified child who makes himself known to the government, it’s quite likely that many will choose not to make themselves known.
Rather obviously, if you and your parents never attempted to register your birth with a U.S. consulate — as many apparently do not — the State Department (let alone the IRS) is likely to be unaware that you even exist. Stephen Flott pointed this out in a 2013 post previously discussed by calgary411. Similarly, retired State Department official Andrew Grossman wrote in his 2007 draft 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 … As far as can be determined and notwithstanding the text of the Revenue Rulings cited above, 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), [1997] 1 S.C.R. 358.)
However, under the FATCA régime, some banks have become rather more aggressive in their enquiries not just into their customers’ birthplaces but their parentage as well. Such enquiries are made quite simple if the parents are customers of the same bank as their children.
Conclusion
As ever, court cases by people who live in the U.S. and want U.S. citizenship drive the retroactive extension of citizenship to large populations who live elsewhere and are citizens of other countries. Some of those citizens of other countries may want U.S. citizenship. The remainder are perfectly happy being citizens of their own countries and have no desire for a citizenship they thought they lost or never had in the first place (and which even their own U.S. citizen father may have later given up). However, the voices of the latter group have never been heard in U.S. courts, with only one only one pending exception of which I’m aware.
Homelanders view the ruling in Morales Santana v. Lynch as a victory for human rights at home and “a step closer to equal citizenship”. But a real victory, which respects everyone’s rights and not just those of Homelanders, would be to let those emigrants’ kids who want U.S. citizenship get it upon application and fair warning of the potential impact to their ability to live overseas and enjoy equality with their non-U.S. citizen neighbours. Forcing everyone into citizenship whether they want it or not, making them pay twenty times more than in any civilised country to get out of it, and trapping them in it if they do not have the legal capacity to relinquish or renounce it, is no kind of moral victory at all either for the people thus trapped or the country doing the trapping.
Fascinating that they can retroactively change laws that are no longer on the books.
By the way, as a side note, DS-5507 is not only used for unmarried parents. In Japan, birth certificates only show the mother’s name, not the father’s. (The logic being that the attending physician is in a position to determine whose body the baby came out of, but not to determine who helped put it in there in the first place.) If only the father is a US citizen, then even if the parents are married the quickest and easiest way to get the kid documented as a US citizen is to use Form DS-5507, which the US embassy will recommend.
Millions of people who never dreamed they were citizens of the U.S. will be affected by this court ruling, if it is upheld or if not appealed. i am sure they won’t go after the King of Thailand, or the prime Minister of Israel, or the sons of Ex Egyptian Morsi or Morsi himself who was naturalized, or many other famous or infamous.
In many ways the problem with this decision is almost solely due to CBT. IF the US followed RBT, the effect would be muted. US citizenship for some born/living overseas would be a ‘nice to have’ with no other real practical negative effects.
For those of us who believed or still exceptionally believe (as in 1943):
… your realization with such a ruling that could retroactively extend U.S. citizenship to a large number of people who “previously believed — and may even have confirmed with lawyers & consular officers — that they were non-citizens and would remain so for life unless they took the voluntary steps of immigrating to the U.S. and naturalising there” that your passed-on US citizenship is the same as that of the birth mother.
After all, this decision would go a long way in further broadening the U.S. tax base.
All he’s done is lumped them with a $2350 exit fee.
It’s a crazy situation. The court may well have thought that, in the end, US citizenship is desirable and that deciding as he did it was a net positive. The CBT/tax implications were likely not considered at all. There are two faces to the USA on this…the tax face (i.e. the negative face) and the face of having US citizenship by virtue of a blood/family tie to a US citizen (i.e. the positive face). Correct me if I am wrong, but I don’t think the 2nd Circuit realized or otherwise considered the CBT/tax issue at all. Like I said in my earlier post – if the US was RBT, one could easily take the view that having US citizenship by blood/family is a ‘nice to have’. Kind of like friends of mine in the US who obtained their Irish and Italian passports via family – it is a nice to have – no tax implication, no negative at all in holding the extra passport. A bizarre situation CBT creates in so many many ways.
What’s next, all children, regardless of legitimacy need only one US parent resident in the US for a year in order to receive US citizenship through descent? Seems only fair, doesn’t it?
As paranoid as I am, I cannot imagine the US government tracking somebody born abroad, documenting physical presence of parents, and then going to court to slap US citizenship on that person, in order to tax them.
@Fred: yeah, that’s what Andrew Grossman thinks too, and for the most part I agree with him: Washington will not chase these kids. But as we saw in OVDP, Washington will have zero qualms about picking these kids’ pockets if they wrap themselves up in shiny paper with a bow on top and set themselves down on the IRS’ doorstep. And undoubtedly there are compliance condors out there who see the latest ruling as another opportunity to scare people into doing precisely that.
Specifically, the problem is bank over-enforcement of FATCA. I expect that:
1. Some overseas-born kids of US emigrant dads probably have been asked already by their banks (e.g. if dad & kid have an account at the same bank and the dad is still a USC) if they’re US persons and answered “no, father did not meet physical presence requirements” and maybe even provided documentation to that effect.
2. Somewhere out there, there will be compliance condors trying to tell the banks they need to review those kids’ accounts again to make sure they’re not affected by this new ruling, and telling the kids they need to go get a SSN and file taxes immediately, so that both groups pay the condor a bunch of money to clean up their mess.
@foo: thanks, I’d been wondering about that. (Last time I looked at these stats a couple of years ago, I mistakenly thought all DS-5507 filers were unmarried fathers. Tried doing some calculations based on that faulty assumption and they made absolutely no sense; now I know why.)
@Brockers, this is a perfect situation that can be used as a tool to get CHANGE!!!
@Eric is correct in his comments……..”the law is the law” and some bank or compliance jackal is going to fleece a lot of money.
US Citizenship IS a human rights violation!!!!!
Bestowing and/or enforcing retention of US Citizenship which is not wanted is a Human Rights Violation!!
IF Russia did this there would be an uproar.
This ruling shows what I have been banging cans about for years. There is NOTHING to stop the US Courts or Congress from making USC a perpetual motion machine going down generation after generation with zero residence requirement. I have little doubt that the US Coursts would find some “Constitutional Right” to that process!!
People, USC is like a STD. If you got it stop spreading it and do something about it.
The cancer of US citizenship continues to spread.
Another reason to sign up to be a poll worker. By accepting employment with a foreign (non-U.S.A.) government, you relinquish U.S.A. citizenship…and you don’t say you ever were a U.S.A. citizen. However, you can document this (which acknowledges possible U.S.A. citizenship) by signing and getting notarised a declaration to that effect, and keeping it in your safe deposit box. Now, your son can claim U.S.A. citizenship and dare the feds to prove you intended to relinquish by performing the expatriating act…or access the document as proof that you did intend, depending on whether your son wants U.S.A. citizenship later.
Of course, there is no such thing as citizenship. It is a faction described on documents. There is no such thing as a government, either, but a lot of bureaucrats think or pretend there is, and that makes all the difference.
Just wait until Kenya retroactively extends citizenship to President Obama and then imposes income taxes and FBAR penalties on him.
I agree, Fred, but they will be happy to process the low-hanging fruit that the banks or compliance industry shake out.
“IF Russia did this there would be an uproar.”
The Soviet Union did it and there was no uproar.
An emigrant from the Soviet Union lived in the US and took US citizenship. She got married in the US. She gave birth in the US. Her daughter was a US citizen.
She wanted to visit the Soviet Union with her daughter. She persuaded the Soviet Union that she was no longer a Soviet citizen, so the Soviet Union agreed that she could visit the Soviet Union and return to the US. When she was about to board the plane back to the US, the Soviet Union was allowing her to go. But they grabbed the daughter. The daughter was born to a parent who was originally a Soviet citizen, so the daughter was a Soviet citizen, and the daughter didn’t have an exit visa.
A lawyer told me that story, so there’s a random chance that it might be true.
Meanwhile, if Russia were to impose Russian citizenship on someone who was not born in Russia and never went to Russia, it wouldn’t be as bad as what the US does. Russia doesn’t have CBT.
Even Mikhail Khodorkovsky, after being abused so badly by the Russian government, doesn’t have to renounce his Russian citizenship while he lives in Switzerland.
“By accepting employment with a foreign (non-U.S.A.) government, you relinquish U.S.A. citizenship”
Only if you prove that you took that action with intention to lose US citizenship.
By the way, a US State Department official suggested that the renunciation fee could be avoided by declaring that I took Canadian citizenship with the intention of relinquishing US citizenship. Unfortunately I did not have the intention of relinquishing US citizenship at the time of taking Canadian citizenship, so I told him I would pay the fee (US$450 then).
At the second meeting a US consular official gave me forms that had not been corrected after the first meeting, so I told her the forms needed corrections. She looked and said “Of course, because of the passport renewals.” I was stunned. It was amazing to see that the US government had an employee who understood what was going on, to some extent. If the US government had more employees like her, maybe I wouldn’t have needed to renounce (at that time, before FATCA).
But the consular official had her turn to be stunned after that. I mentioned to her that on US tax returns I used to describe known problems and sign honest statements under penalty of perjury instead of committing perjury, she interrupted me to say “good”, I continued “I get penalized for it”, and she was speechless. I think that was the moment she understood why I was renouncing.
Can the U.S. “deem” people “born outside the U.S.” to be U.S. citizens?
@Eric
Fantastic post and fantastic comments. Thank you for this. I see this decision as being more narrow than some of the comments to your post suggest. To cut to the chase, I believe that the significance of this decision depends on whether the U.S. can “deem” people born outside the United States to be U.S. citizens.
With that question in mind …
In your superb post you describe the recent decision in Morales-Santana v. Lynch, No. 11-1252-ag (2nd Cir., 2015). It’s important to recognize that Mr. Morales wanted to be a U.S. citizen. He was asking the court to provide relief for him that would him allow him to be recognized as a U.S. citizen.
The Facts:
Morales was born, out of wedlock outside the United States to a U.S. citizen father who had NOT lived in the United States for 5 years after the age of 14. Mr. Morales mother was NOT a U.S. citizen. The law did NOT allow Mr. Morales’s father to pass citizenship to Mr. Morales because he (as the father) had not lived in the United States for 5 years after the age of 14. But, Mr. Morales could have received derivative citizenship from an unwed U.S. citizen mother who had lived in the United States for only one year. In other words, to pass citizenship, Mr. Morales’s actual unwed father would need more U.S. residence than a hypothetical unwed mother would have required.
The issue:
Did the more onerous residence requirement imposed on the father violate “equal protection”. In other words, did it deny a benefit to the actual father, that was available to a hypothetical mother, on the basis of sex? Was Mr. Morale’s father denied equal protection because he was a male?
The ruling:
To deny the benefit of being able to pass derivative citizenship to the father was a violation of equal protection. Therefore, Mr. Morales’s father should not be subject to residency requirements that were more onerous than what would have been available to a hypothetical U.S. citizen mother.
The court went further and suggested that it’s decision resulted in Morales “being a citizen from the moment of birth”. (Bear in mind that this was the result that he was asking for.) A more narrow (and I believe correct) interpretation of the ruling is that:
Mr. Morale’s unwed father had the same right to pass on derivative citizenship that a hypothetical unwed mother would have had. Unless the U.S. has the unilateral right to “deem” people born outside the U.S. to be U.S. citizens, this would mean that:
1. Mr. Morale’s father had “the right” to pass U.S. citizenship to his child.
2. Mr. Morales (the child) had the right, but not the obligation, to accept U.S. citizenship. (In this case he needed U.S. citizenship to avoid deportation.)
Why is this of interest?
Well, as the comments to Eric’s post make clear, people are concerned that this decision has retroactively created a new class of U.S. citizens abroad. This could (but not necessarily would) be true ONLY if the United States has the power to impose U.S. citizenship on a person born outside the United States. It doesn’t appear that the court addressed that specific question.
Therefore, I believe that this decision should NOT be interpreted to mean that the U.S. has created a new class of “property” outside the U.S. It just means that a new group of people are welcome to become U.S. property, if they so desire.
I would really appreciate your thoughts on this question:
Can the U.S. “deem” people “born outside the U.S.” to be U.S. citizens?
I attempted a post on this question a few years ago at:
https://renounceuscitizenship.wordpress.com/2013/07/02/cook-v-tait-10-those-born-outside-the-us-are-not-automatically-us-citizens/
Would greatly appreciate any thoughts on this.
@USCitizenAbroad: thanks. I got pretty nervous at some points where I saw Lohier writing about “every unwed father” rather than “Morales-Santana’s father”. True he was speaking of “the statutory right to confer citizenship on their children”, however he also emphasizes that the court is not “conferring citizenship” but “confirming pre-existing citizenship” and that severing 1409(c) entirely would be to “strip citizenship”. I guess my main concern is how the banks will react to this new group of “potential citizens”, rather than how the U.S. government itself will react.
From a popular perspective rather than a legal perspective (when it comes to foreigners getting benefits from the U.S.) plenty of Homelanders seem to feel that jus sanguinis is some sort of scam and that jus sanguinis citizenship isn’t “real citizenship”. I’ve already seen grumbling on Facebook about the Morales-Santana decision. Similarly, there were complaints earlier this year about Cuban citizens by descent who never set foot in Cuba in their lives but managed to get free U.S. green cards as Cuban refugees (the article quotes a former State Department official decrying the practice)
http://interactive.sun-sentinel.com/cuban-adjustment-act/loophole/
(The real problem with that second one is that Congress was too dumb to write the laws properly, because they think in “citizenship-based” terms, or they think that “citizens” and “residents” of a country should be lumped together rather than recognising that they’re two entirely-orthogonal categories. Same principle seen at work in all the attempts last year to make Liberian & Guinean citizens inadmissible to the U.S. because of the ebola outbreak)
https://www.congress.gov/bill/113th-congress/house-bill/5746
https://www.congress.gov/bill/113th-congress/house-bill/5688
https://www.congress.gov/bill/113th-congress/house-bill/5692
https://www.congress.gov/bill/113th-congress/senate-bill/2953
@Norman Diamond and george: IF Russia did this there would be an uproar vs The Soviet Union did it and there was no uproar — Congresscritters were condemning Iran last month for “refusing to recognize the U.S. nationality for Jason Rezaian” (U.S.-born kid of Iranian immigrants). Not quite an “uproar” but it’s something.
https://www.congress.gov/congressional-record/2015/06/15/house-section/article/h4353-1/
USCitizenAbroad, I beg to differ in your analysis.
This would fall under 8 U.S. Code § 1401 – Nationals and citizens of United States at birth
Which states…”The following shall be nationals and citizens of the United States at birth: ”
US Citizenship is not something that is passed on. You have it at birth or you are naturalised.
IMO this does create retroactive citizens.
This is the first time I’ve heard of ANY country stating that the US can’t force US citizenship on foreign- born children. From Facebook today:
“My 3 year old DD birth is not registered with the us embassy nor will it be. She is registered and has a UK passport we have been home 4 times on her UK passport and have the visa to allow her entry as my husband needs. I have called the home [UK] office and asked for advise regarding the US and the fact that they consider DD American. There stance is no country can force citizenship upon someone and if there are problems ever with the US to contact them and if in the US contact the British embassy as she is considered a full UK citizenship…”
When I said that the new ESTA application for her daughter might reveal that her daughter is a USC, she said,
“It might do… But her birth is not registered at the US embassy. Also UK stance as she is born in UK. birth registered in UK and UK passport and citizenship. Per Home Office. No country can force citizenship upon someone. And I have information provided by the home office to me if they try to…. I am not a person who follows the crowd I have sought out proper I information and contacted proper authorities.”
I told her she should prepare herself to have to travel to the US without her daughter, should the US see it differently.
@bubblebustin: For what it’s worth, DoS’s position (7 FAM 085(b)), for which I assume they’ve at least informed CBP and tried to get some sort of buy-in from them with regards to VWP & ESTA, is that:
I’d bet that, in the event the daughter does face any problems, it’ll be with the airline. (Recall that it was an airline employee who first told Boris Johnson that he needed to get a US passport, setting off that absurd chain of events which left him with a six-figure US tax bill on a UK house paid for by UK wages.) Which goes back to the same problem we see with the banks & FATCA: individuals of ambiguous status getting screwed by private-sector over-enforcement of the law because the private-sector enforcers are scared of getting fined.
Interesting, bubblebustin.
It would be good to have the UK information source so Joseph Arvay and team, John Richardson, ADCS-ADSC or I or someone could try to ascertain if someone / some agency in Canada would state the same:
Who would have issued the visa mentioned — the UK or the US? (I just don’t understand much about how visas are issued.)
THANKS!!!
(In the meantime, I am continuing to do nothing regarding my son’s supposed *acquired US citizenship by birth abroad to two US parents* or to help him do so. If the US DOS says he cannot renounce because he does not have the *requisite mental capacity*, why would I do that?)