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.
Table of contents
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.
1261: Introduction
(d): Comprehension
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.
(g): Renunciation and Statelessness
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.
(i): Would-be temporary renunciants
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.
1262: Interview with Potential Renunciant
1262.2: Initial Information Session/Interview with Potential Renunciant
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.
1262.3: Site of Renunciation
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.)
1263: Translations, Interpreters and Witnesses
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!
1264: Disposition of Documents and Departmental Approval
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.)
1266: Renunciation and Taxation
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.
1268: Checklist
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.
1269: Sample Consular Documents in a Renunciation Case
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.
(cont)
Oh, the reason you NEED Legal Counsel with a Counselate meeting is because its an “adversarial process.”
@Duke, “Is it just me? The way I read this, the $2350 fee now seems to apply for both renouncing and relinquishing. They are careful to say the fee is for processing a CLN. Gotcha!”
I read the same exact way!!!
I read the above as you do in the updated Foreign Affairs Manual on U.S. citizenship renunciation procedures of the fee for processing a CLN. It would then be the same for a CLN for a claim of relinquishment, from decades ago or currently, like becoming a citizen of another country with the intention of relinquishing one’s U.S. citizenship or by taking an oath to work for a government agency of another country. Seems there must be a way of proving to the *foreign financial institution* why one does not have a CLN, something like the suggested from http://isaacbrocksociety.ca/2015/05/08/26-u-s-code-%C2%A7877a-the-exit-tax-rules-do-you-see-them-as-applying-prospectively-or-retrospectively-or-both/:
Seems a human rights abuse to not be able to expatriate from a U.S. citizenship for lack of $US2,350 or whatever that CLN processing fee will be down the line — all so you have a document to prove to your *foreign financial institution* that you are NOT a U.S. citizen and subject to having all of your private financial information sent to the Canada Revenue Agency (in Canada) or such agency in other countries to then be forwarded on to the U.S. IRS (ripe for the next IRS hacking — isn’t that another abuse in sending your information off to a foreign country — the safety of your identity and financial information?).
Let’s add another “reasonable explanation” for your bank as to why you don’t have a CLN: you can’t afford one.
@ cagary411> Thank you for that article from Roy Berg. Lots of excellent information there. I was able to comprehend everything he said, unlike when I tried to read the IGA.
@Steve, re; “…..neither is the Treasury or IRS standing up and saying “hey, there’s a problem here..””
To me it is very very clear that the US, via the Treasury, IRS, and the State Department DO NOT want to have attention drawn to the size and nature of the problem and the true numbers renouncing/relinquishing or the reasons, or the elements of both coercion for people to renounce/relinquish ( abuse of those “abroad” / “overseas” living outside the US via US extraterritorial CBT, FATCA, FBAR) and the effective denial of our rights to choose our citizenship via unconscionable fees, procedures, consular/State Dept intransigence, belligerence, obstruction, indifference ( for the last, see Kish conversation with consular officials “…U.S. Consul General James Dickmeyer gave a short speech and I had conversations with the C-G and two Consular officials on the wait time to obtain a renunciation meeting in Toronto….” and “..R responded by saying that the renunciations are a low priority that do not compare with high priority activities such as passport renewals, and that there will be no change in priority..” http://isaacbrocksociety.ca/2014/11/04/my-november-4-2014-conversation-with-toronto-consul-general-of-us-new-renunciation-appointments-extended-to-september-2015/ ) etc.
Therefore, the State Dept seems to have chosen to go further and further down the path of walking in ever closer embrace with the Treasury dept – by making policy and procedure choices and acting in ways which effectively tend towards denying people their human, civil, international, and US legal right to CHOOSE whether to be US citizens or to expatriate. AND, they ignore that the US is effectively forcing people to expatriate as the only current remedy for the layers of FATCA and FBAR and CBT oppression and abuse that it has created and continues to impose and ratchet it up regardless.
The wording of the U.S. Senate International Tax Reform Report demonstrates that as Victoria says ; “…in a nutshell, the issues reported by 25% of the submissions to this committee got a hearing, while the other 75% sent in by citizens and organizations like American Citizens Abroad got a recitation of the rules.That’s disheartening. That’s very bad news….” http://thefranco-americanflophouse.blogspot.ca/2015/07/the-international-tax-bipartisan-tax.html and Tricia has pointed out, the report’s comments re international extraterritorial individual taxation by the US is “the lack of any real, substantial indication of change for American expatriates is deeply disturbing” http://isaacbrocksociety.ca/2015/07/11/tricia-moon-your-comment-at-the-jack-townsend-blog-is-heart-felt-and-brilliant-thank-you/ ) and merely restates (in conveniently self interested and biased form) the CBT rules and does nothing to recognize or acknowledge the problem at all.
Regarding the sentence at s. 1269(b) of the new 7 FAM 1260,
I don’t think this is referring to a new fee for relinquishment-based CLNs.
7 FAM 1260, Renunciation of Citizenship Abroad, deals specifically with renunciation.
7 FAM 1220, Developing a Loss of Nationality Case, deals with all relinquishment but it does not mention a fee.
A change in fees would have to appear in the Code of Federal Regulations and the CFR currently does not refer to a fee for relinquishment but states,
(1)
7 FAM 1260, Renunciation of Citizenship Abroad, is the manual for renunciation
(General matters about relinquishment are covered in 7 FAM 1220, Developing a Loss of Nationality Case, with specific situations covered in 1250 (Naturalisation), 1270 (Military Service), and 1280 (Government Employment).)
(2)
Concern has arisen from the following sentence in the new 7 FAM 1260.
The section headings this sentence falls under refer only to “renunciation” and “renunciant.” as does the title of the document itself.
(3)
The new 7 FAM 1260 also makes reference to the $2350 in another paragraph of 7 FAM 1269(b)
As mentioned, the current 22 CFR 22.1 Schedule of Fees, states,
So, the new 7 FAM 1260 refers you to the CFR, but the CFR is very specific in stating “renunciation” and doesn’t contain reference to “relinquishment”in this line on any other line either.
(4)
Therefore it appears to me that this latest edition of the renunciation manual, 7 FAM 1260, is only referring to the fee for renunciation-based CLNs.
So the CFR says the fee is for processing the renunciation itself.
The FAM says it is for the CLN.
Can one renounce without requesting a CLN? Save the fee that way?
The CFR seems to say no. But, what does it take to change the CFR? Can State modify it at will? If so, then the FAM may show their intention to modify the CFR to “clarify” that the fee is for the CLN.
This would leave the way open for them to say relinquishments (and maybe even renunciations) are free — but if proof is needed, the CLN will cost $2350.
Something to keep an eye on, I think.
@foo
I second your comment
@ Foo,
State can change the CFR. It’s empowered to create and modify regulations regarding expatriation by s. 104 of the Immigration and Nationality Act. I don’t know the procedural steps they have to take to do this – it’s probably detailed somewhere on the net. As part of the procedure, though, the proposed and final versions of a new or amended regulation must be published in the Federal Register in order to go into the CFR and into effect. (As well as there not being a relinquishment fee in the CFR, there doesn’t appear to be anything regarding a proposed relinquishment fee in Federal Register either).
As stated in my earlier comment, I don’t believe a relinquishment fee exists at this time. But I’d keep an eye on this too.
On 20 August there was another minor update to 7 FAM 1262.4, “Documentation of Renunciation” to add some cross-references. Old version
New version adds the following at the end of (j):
(No updates in 7 FAM 1220 since February)
@Eric, from your “new” link….there is this little ditty “The only means to acquire or regain citizenship
would be through a subsequent naturalization.”
So they are not making a formal statement that you can become a USC again just like anyone else similar situated.
Alex Marino claims in a recent article:
http://www.mondaq.com/canada/x/576474/Income+Tax/Renouncing+Your+US+Citizenship+Is+Divorcing+Uncle+Sam+Right+For+You
This appears to be a minor retread of an earlier article of his from May 2015
http://www.mondaq.com/canada/x/227982/Income+Tax/Renouncing+Your+US+Citizenship+Is+Divorcing+Uncle+Sam+Right+For+You
Not sure whether he been successful in getting an exception from the State Department, or whether he just forgot to update that passage when he reposted. As mentioned in the main post, 7 FAM 1262.3(f) has forbidden the attendance of attorneys at renunciation interviews since July 2015:
https://fam.state.gov/fam/07fam/07fam1260.html#M1262_3
@Eric; any professional services being advertised should be congruent with:
“4.2 MARKETING
Marketing of Professional Services
4.2-1 A lawyer may market professional services, provided that the marketing is:
(a) demonstrably true, accurate and verifiable;
(b) neither misleading, confusing or deceptive, nor likely to mislead, confuse or deceive;
(c) in the best interests of the public and consistent with a high standard of professionalism.”
http://flsc.ca/interactivecode/