On Monday, the State Department posted an update to 7 FAM 1260, the section of the Foreign Affairs Manual which discusses procedures for renunciation of U.S. citizenship. For comparison, here’s the previous version, which is less than half the length. (Separately from this, 7 FAM 1220, which discusses standards for assessing relinquishments rather than renunciations of U.S. citizenship, was updated back in February: old vs. new.) There’s three major changes to 7 FAM 1260, and a bunch of minor ones which I summarise after the jump.
First, the update retains the two-interview system but recommends that the first interview (“initial information session”, in which the consular officer reviews the renunciant’s paperwork and discusses the consequences) be conducted by telephone or that the information required can be exchanged electronically. This means that renunciants should be able to avoid having to make two actual visits to the consulate, which may be distant from where they live — possibly even in another country, if their local consulate had a months-long backlog for appointments.
Second, the update disallows attorneys from being present for either interview, even if the renunciant does not speak English and needs a witness. State claims this is necessary to allow them to ascertain the person’s “free will”; I have my doubts about that explanation.
Third, the update provides that Form DS-4079, “Request for Determination of Possible Loss of United States Citizenship”, should not be required in routine renunciation cases; only a DS-4080, “Oath/Affirmation of Renunciation of United States Nationality”, and DS-4081, “Statement of Understanding Concerning the Consequences and Ramifications of Relinquishment or Renunciation of U.S. Citizenship”, are necessary.
- 1261: Introduction
- 1262: Interview with Potential Renunciant
- 1263: Translations, Interpreters and Witnesses
- 1264: Disposition of Documents and Departmental Approval
- 1266: Renunciation and Taxation
- 1268: Checklist
- 1269: Sample Consular Documents in a Renunciation Case
I omitted discussion of the minor updates in 1262.4 (Documentation of Renunciation), 1265 (Renunciation and Special Circumstances), and 1267 (Renunciation and the Brady Act), since I didn’t have anything in particular worth saying about those.
Added that if a person does not understand that renunciation means giving up the right to reside in the U.S. without a visa, “it cannot be said that the individual intended to relinquish his or her U.S. nationality when he or she executed the oath of renunciation”. Another ongoing consequence of 1980s & 1990s renunciations by Joel Slater and various Puerto Rican independence activists who returned to the fifty states or Puerto Rico almost immediately after renouncing citizenship.
Added that statelessness is “a status that can present severe hardship and is disfavored under international law” and that it might also bring difficulties for “[t]he ability to own or rent property, work, marry, receive medical or other benefits, and attend school”. Possibly related to ongoing repercussions of Harmon Wilfred‘s renunciation in New Zealand, which has led to complaints by New Zealand’s government to the U.S. embassy because the U.S. government now refuses to accept him for deportation.
Added “Irrevocable nature of renunciation” in subsection name. Added at end that “[t]he only means to acquire or regain citizenship would be through a subsequent naturalization”. We discussed renaturalisation last month.
Added subsections (d) and (e), which allow for the initial information session to be conducted by telephone or electronic means. The latter requires the consulate to obtain joint approval from the Office of American Citizens Services & Crisis Management and the Office of the Legal Adviser (at least I think the latter is what “CA/OCS/L” stands for; they’re listed in the “Office Symbols” section of State’s telephone directory simply as “L”). These changes, if consulates actually bother to obey them, will hopefully save renunciants the time and expense of two in-person trips.
Changed title to “Second Interview/Site of Renunciation”. Significant expansion. Major points: consular officer has discretion to further delay the renunciation, and parent/guardian/legal representative should not participate in any interview. (Other countries allow parents, guardians, and legal representatives to be present during formalities and even to give up citizenship on their behalf if their children/wards lack legal capacity to do so themselves, though as discussed last time this is because those countries also have generous procedures for people who gain/regain legal capacity to restore their own citizenship if they disagreed with the decision of the parent or guardian.)
Deleted language stating that an attorney may accompany a non-Anglophone renunciant in order to act as a witness. Probably related to 1262.3 update barring legal representatives from taking part in the interview. Existing language in this section provides that another consular staff member may act as one of the witnesses, but non-Anglophone renunciants must find someone who is neither a relative, friend, associate, and now not an attorney to act as the other witness. Yep, clearly no attempt to “restrict, impair, or question the right of expatriation” here!
New language in note provides that “consular officers should not seek completion and signature of DS-4079 in renunciation cases as a matter of routine”, but provides examples of non-routine situations in which it may be relevant (“where there is a question about intent” or “ties to the United States and the host country”). The DC District Court has held in Weber v. Department of State, that recent pre-renunciation “affiliation” with the United States is sufficient ground for a consular officer to deny a renunciation (yes, a renunciation and not just a relinquishment).
Almost exactly two years ago the State Department, in Paperwork Reduction Act filings, cut its estimate of the number of DS-4079 filers by about 25%. At the time I thought this was just disinformation, especially in the face of well-documented increases in the number of people giving up U.S. citizenship since 2007. Now, however, I wonder if this might have been related to some internal discussions at State whether DS-4079 should have been required from all renunciants. In any case, State will have to make another set of Paperwork Reduction Act filings regarding DS-4079 next year, and it’ll be interesting to see how they further change their estimates then.
(If renunciants really only form 25% of the pool of people giving up U.S. citizenship, that suggests a sharp rise in the number of relinquishers — people who commit one of the other expatriating acts in 8 USC 1481(a) with the intention of giving up US citizenship. Previously, when attempting to estimate the total number of people giving up U.S. citizenship based on the monthly FBI figures for the number of renunciants, we’ve used a ratio of 4 or 5 relinquishers for every 6 renunciants, based on 1994/1995 data. However, if that ratio is too low, then our estimates are also far too low. The massive increase in the renunciation fee last year provides another incentive for people to find some way to relinquish instead of swearing an oath of renunciation.)
Clarified that consular officers should tell all renunciants to get in touch with the IRS about their potential tax obligations and that consular officers cannot answer any questions in this regard.
Separated out into numbered paragraphs. Added references to electronic transmission of scans of forms to ACS, and stated again that DS-4079 should not be required from renunciants in all cases.
New section. Subsection (a) provides an example of the letter the consular officer should send to ACS when recommending a renunciation. Subsection (b) provides an example of the letter the consular officer should send the prospective renunciant for the “electronic information session” first interview discussed above.