8 U.S. Code S. 1401 – Nationals and citizens of United States at birth includes:

The following shall be nationals and citizens of the United States at birth:

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

 

 

The quest for  – “Form Free Living”

The need to live "Form Free" http://t.co/jefOSLEq1b via @USCitizenAbroad – #Americansabroad seek "Form Free Living" – that's a #FATCA

— U.S. Citizen Abroad (@USCitizenAbroad) June 20, 2015

Defining the direction …

Born outside US to USC parents? Is US citizenship a choice for u or has the US made you an offer you can't refuse? https://t.co/vKlKZMyGJt

— U.S. Citizen Abroad (@USCitizenAbroad) July 12, 2015

This issue has been recently raised in AT LEAST the following three contexts:

 

1. In a fascinating post,  WhiteKat introduces  the issue of:

 

…  another obvious battle to be fought, which is the fight to help set people free from the chains of unwanted US citizenship.

2. A recent comment (not restricted to the situation of people born outside the U.S.) noted that:

Facts are stubborn things. Why not focus on the those facts that are most clear

1. The United States is attempting to enforce it’s laws beyond its borders in other countries. These include but are not limited to U.S. “Extra-territorial taxation” and FATCA.

2. The United States and the United States only decides (according to its laws) who is or is not a “U.S. person” and is therefore subject to U.S. “Extra-territorial taxation”.

3. Because of point 2, the United States (with the help of the media and the tax professionals) is attempting to forcibly impose “U.S. personhood”on many who have never and do not believe that they are U.S. persons.

3. Leading to a recent comment on Facebook that:

In relation to point 3 (forcible imposition of US citizenship on people who don’t want it and who have lived their lives as nationals of another country) surely another law suit must be brewing? The more I read about US nationality laws, the more it seems to me that the State Department’s position is at odds with the fundamental principles that underpin the system. Probably one for accidental Americans. Just wondering if this has ever been given any thought.

 

Can the U.S. impose unwanted citizenship on people born outside the United States?

The forced imposition of U.S. citizenship on people born outside the United States arguably infringes the sovereignty of other nations. For example doesn’t Canada have the right to treat Canadian citizens as ONLY Canadian citizens?

The Government of  Canada would  surely have an interest in this because, the U.S., under the pretext of citizenship based taxation,  is extracting Canadian capital  from Canada and transferring it to the U.S. Treasury (presumably for better use). By imposing U.S. citizenship on people born in Canada, the United States is potentially harming Canada.

This is a clear violation of Canada’s  sovereignty.

Possible responses from those who are threatened with the forcible imposition of U.S. citizenship:

The  Government of Canada  could  simply echo the late Jim Flaherty by saying:

Keep your hands off our citizens.

Canadian citizens would surely have an interest in this for  obvious reasons.  Individual Canadian citizens would simply say:

I don’t want to  be  a U.S. citizen. I want to live as a free person. I want to live a “Form Free Life”.

Canadian citizens, born in Canada,  might  answer the question:

Sorry, but I was not born in the United States. U.S. law ends at he border. I am not and never will be a U.S. citizen. What gives the United States – “That Great Citadel of Freedom and Justice” – the right to force citizenship on those born outside the United States?

In search of an answer – what are the principles that determine how the question should be answered?

In General – Can citizenship be forced on an individual?

Citizenship Showdown Coming Between Free People and the U.S. Government | Maple Sandbox http://t.co/gIDD2sH1kN

— U.S. Citizen Abroad (@USCitizenAbroad) June 20, 2015

Specifically – The  curious case of those born outside  the United States to U.S. citizen parents

How the world has changed. President Barack Obama promised “change we can believe in”. The result of the Obama presidency is that people  all  over the world are now afraid  of  U.S. citizenship in a FATCA world. The numbers of those  renouncing U.S. citizenship are increasing.

The difficult  questions include:

1. Can the United States  of America forcibly impose U.S. citizenship on those who were  born outside the United States? There is NO other country (not even Eritrea) that is believed to forcibly impose citizenship on those born outside it’s borders.

2. Are those born outside the United States, free to interpret U.S. laws as  an offer of U.S. citizenship but also be free to reject it?

What do the lawyers say? It depends who you ask.

Many lawyers  inside  the United States, simply read the relevant U.S. statute  and say with confidence:

Yes, the United  States has imposed  citizenship on certain people  born outside  the United States. The consent of those  individuals is irrelevant.

Okay, but U.S. law ends  at the U.S. border. Must those  born outside  the United States, accept the forcible imposition of U.S. citizenship, if they are  not in the United States? If they are NOT in the United States and do NOT accept an “offer” of U.S. citizenship

I explored this interesting question in: Cook v. Tait 10:  Opinion – Those born outside the US, to US parents, are NOT automatically US citizens. When it  comes  to  those  born outside  the U.S., it  seems  to me that  the U.S. can specify the conditions under which it  is willing to grant citizenship, but it  should  NOT be able to FORCE citizenship on individuals.

Cook v. Tait 10: Opinion – Those born outside the US, to US citizens, are NOT automatically US… http://t.co/fzjrTCIMZS via @USCitizenAbroad

— U.S. Citizen Abroad (@USCitizenAbroad) June 20, 2015

Three recent interesting items that focus on whether those born outside the U.S. can have U.S. citizenship imposed on them

Item 1: On June 5, 2015, a U.S. D.C. Court of Appeal  wrote an opinion suggesting:

"We can envision little that is more anomalous, under modern standards, than the forcible imposition of citizenshi… http://t.co/UOAumuhTHa

— U.S. Citizen Abroad (@USCitizenAbroad) June 17, 2015

A post from the Isaac Brock Society introduces the issue with this question:

Can the United States be justified in imposing, without informed consent, U.S. citizenship on a group of persons, especially “never-meaningfuls”, who do not want U.S. citizenship?

It  may be  significant that the court  is addressing the question of  the imposition of citizenship  on a group instead  of on an individual. Nevertheless, …

The post includes some interesting quotes  from the ruling:

A FEW QUOTES FROM THE RULING:

“BROWN (Senior Circuit Judge): In our constitutional republic, Justice Brandeis observed, the title of citizen is superior to the title of President. Thus, the questions “[w]ho is the citizen[?]” and “what is the meaning of the term?” Aristotle, Politics bk. 3, reprinted in part in READINGS IN POLITICAL PHILOSOPHY 55, 61 (Francis W. Coker ed., 1938), are no less than the questions of “who constitutes the sovereign state?” and “what is the meaning of statehood as an association?”

“We can envision little that is more anomalous, under modern standards, than the forcible imposition of citizenship against the majoritarian will.”

“We hold it anomalous to impose citizenship over the objections of the American Samoan people themselves, as expressed through their democratically elected representatives.”

“A republic of people “is not every group of men, associated in any manner,[it] is the coming together of . . . men who are united by common agreement . . .” [MARCUS TULLIUS CICERO]”

“See, e.g., U.N. Charter arts. 1,73 (recognizing self-determination of people as a guiding principle and obliging members to “take due account of the political aspirations of the peoples” inhabiting non-self-governing territories under a member’s responsibility); Atlantic Charter, U.S.-U.K., Aug. 14, 1941 (endorsing“respect [for] the right of all peoples to choose the form of government under which they will live”); Woodrow Wilson,President, United States, Fourteen Points, Address to JointSession of Congress (Jan. 8, 1918) (“[I]n determining all []questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.”)”

“In this manner, we distinguish a republican association from the autocratic subjugation of free people. And from this, it is consequently understood that democratic “governments . . . deriv[e] their [] powers from the consent of the governed,”

“Citizenship is the effect of [a] compact[;] . . . [it] is a political tie.”
[Talbot v. Jansen]”

“The fabric of American empire ought to rest on the solid basis of the consent of the People.”

 

Item 2: The fascinating “video” and comments at Americansoverseas.info

 

IRS on the hunt for #Americansabroad https://t.co/IlMlrzfxVk – including those not born in the USA who didn't they are considered US citizen

— U.S. Citizen Abroad (@USCitizenAbroad) July 10, 2015

 

This video describes the fascinating story of Dutch citizens, born in Holland to U.S. citizen parents. They appear to have accepted the “forced imposition of U.S. citizenship” and entered the U.S. tax system. The comments to the article, raise the question of whether the U.S. citizenship was mandatory or whether it was an offer that could be accepted.

Item 3: The Morales-Satana case reported by Eric at the Isaac Brock Society

In a superb post, Eric describes 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. I reproduce my comment to his post which I believe summarizes the issues:

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.

The  Cook v. Tait related question:

Your  comments on this  question would  be appreciated. Can a person who was  NOT born in the United States and who has never “accepted” the U.S. “offer of citizenship” (by registration, passport, etc.) be forced to accept U.S. citizenship?

Is a possible  answer  to the FATCA inquisition:

I have never lived under the jurisdiction of the United States.  Because I have never lived under the jurisdiction of the United States, the United States has never had the right to impose U.S. citizenship on me.  Furthermore, although I appreciate the offer  of  U.S.  citizenship, I have never accepted it. Therefore, no I am not  a U.S. citizen.