Thank you, USCitizenAbroad, for once again bringing this subject forward as many, including those like me, who struggle with real black and white clarity on this as we read this subject quoted in articles intended to reel us into *US tax and reporting compliance* for the child born outside the US to two US parents or just one US parent (biological mother or father and why there is, in this day, the differences for that distinction) with the requisite facts. We see that it is even an issue of contention between US Republican candidates, Senator Cruz and Donald Trump and follow with interest what will happen in that realm.
(i.e., my legal advice was that my children were US citizens from their first breath and that’s all there is to it and, from posts past from me, I failed to get anyone at the Department of State to state clearly that that deemed acquisition of US citizenship has to be claimed. Nothing in my being will make me accept this seeming injustice especially as one of my children also has a developmental disability and would not be allowed to renounce that *deemed acquired US citizenship and all of its consequences*. I maintain my son is Canadian and I want his Canadian government to guarantee that he and others like him have the same rights — *A Canadian is a Canadian is a Canadian*.)
I’m putting your comment into a separate post for better visibility for those who will weigh in, as you say:
Again, I renew my request for comments on this issue.
PART 1:
(From USCitizenAbroad comment at *Media and Blog Articles* refer to full post for detail)
With respect to issue of “derivative citizenship” which started with the comment here:
My personal view is that people born outside the United States must consider their situations very very carefully. This is an issue that has been “popping up” on this blog for a number of years. One aspect to the question is this:
Can the U.S. deem somebody to be a U.S. citizen or (in the FATCA, FBAR and CBT world) forcibly impose U.S. citizenship on a person born outside the USA?
In July 2015, Eric wrote an interesting post that raised this issue. It’s worth a reread. The comment that I wrote to that post was:
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:
Would greatly appreciate any thoughts on this.
Again, I renew my request for comments on this issue.
PART 2:
1. See the U.S. Citizenship and Immigration Services Policy Manual Sections 301 – 309.
A. General Requirements for Acquisition of Citizenship at Birth
In general, a person born outside of the United States may acquire citizenship at birth if (reproduced at the end) …*
Note that the general provision uses the language “may acquire citizenship at birth”. Subsequent provisions use the language “acquires citizenship at birth”.
3. What the courts say – a possible interpretive aid …
4. What scholars say on the question of “Is availing oneself of an attribute to U.S. nationality sufficient to impose U.S. citizenship on a person born outside the USA?”
5. An interesting question: Assuming that a U.S. Passport are certificate of birth abroad are “attributes of U.S. citizenship”, can the child be punished for the sins and bad judgment of the parent?
6. Given that U.S. “citizenship based taxation” is a mechanism to impose taxation on the citizens and residents of other nations, is U.S. “citizenship based taxation” a violation of international law?
There are many who would accept that the United States is free to decide who its citizens are. That doesn’t mean that it can decide how its citizens are required to behave when they are citizens and residents of other countries. It has become very clear that U.S. citizenship based taxation is a tax on any country where a U.S. citizen resides.
The U.S. claims the right to levy taxes on:
– those who are citizens and residents of other nations; and
– on income earned in those other nations.
Consider this:
The Obama administration is attempting to sign the TPP agreement with a group of nations. At the same time it reserves the right to levy taxes on the citizens of those other nations. To put it simply:
U.S. citizenship based taxation is actually a weapon of modern warfare. When will the rest of the world smarten up?
ending with:
*Excerpts from the U.S. citizenship policy manual
If I understand this correctly, the court found that “Mr. Morale’s unwed father had the same right to pass on derivative citizenship that a hypothetical unwed mother would have had.” Does this mean an obligation to pass this citizenship on or simply an opportunity that can be rejected?
It reminded me of the case that our lawyer, Joe Arvay, won for assisted suicide for the terminally ill: by having the court make the crucial distinction between having a RIGHT to live as long as possible versus having a DUTY to live. That is a crucial distinction in this case also: to ALLOW every child born abroad of one or both American parents to have the RIGHT to US citizenship (like Ted Cruz) versus having the DUTY and obligations of US citizenship forced upon every such child.
But here’s the thing: American parents are supposed to register their children born abroad if they want to confer dual (American) citizenship. Therefore, their American citizenship isn’t automatically conferred or why would anyone have to register their children? The embassy would simply tell everyone, “Don’t bother with the registry, the American citizenship is automatic.”
Sorry, that’s not what the Halifax embassy told us. We were told we had a certain window in which to do the paperwork. In addition, we were told that our children would have to take measures to retain that American citizenship when they reached adulthood, and now we are counting on that. Believe me, our young adult children are staying far away from any further entrapments.
Non-meaningful, without consent US citizenship conferred upon our children…
Yes, what about *Registration of our Children’s Births Abroad*? What EXACTLY does that mean or not mean? Shouldn’t that perhaps be our consent for our children? I did not consent! My children did not consent. Shouldn’t there be an absolute CLAIM / CONSENT to their US citizenship by them when they are of age and of *requisite mental capacity* to make such an informed CHOICE? (The same as it, in my mind, should be for any children born in the US to parents there temporarily from another country and who return to their own country with their parents as infants or young children. Theirs, too, should be a choice of US citizenship in these circumstances, not an acquisition they had only *accidentally* — a citizenship without any meaning and without any consent should be VOID if not CLAIMED.
What I was told is that it did not matter whether my children were registered or not — they were US citizens from their first breath after birth abroad to two US citizen parents.
From somewhere on Brock in a previous comment,
What ever came of that boy who sued his father for registering him as a US citizen? The outcome would go far in telling us whether registering the child made any difference.
https://renounceuscitizenship.wordpress.com/tag/u-s-citizen-child-suing-parent/
@Jan wrote: “Therefore, their American citizenship isn’t automatically conferred or why would anyone have to register their children?”
In fact, one is either a US citizen at birth or not. Registration has nothing to do with that fact. If one was a citizen at birth, that person can at any time in his/her life apply for a US passport and a decision will be made (if after the age of 5, at the State Department). It might be difficult to bring an unregistered child to live as a family member in the United States. Normally a birth certificate is required to register a child in school. Undocumented alien children do have the right to public education; whether issues of custody and legal residence are raised must depend on the nature of the local bureaucracy and how they react to a foreign birth certificate.
As for paternity matters, there is a time element, apparently now the object of litigation. This is also true of adoption. https://www.uscis.gov/sites/default/files/files/pressrelease/ChildCitizenshipAct_120100.pdf (Age 18, but my recollection is that at one time immigration law (not nationality law) set an age 14 limit) There are various kinds of adoption in foreign countries (“weak” and “strong” or “simple” and “plenary” (see Wikipedia). Islamic law does not allow adoption but does allow fostering.
There are thousands of immigration and nationality cases addressing particular facts and enlightening us on points of law. Here’s one: Rios v. Civiletti, 571 F. Supp. 218 (D.P.R. 1983) involved a Puerto Rican US Army deserter whose child, born in Mexico, was registered there with the Mexican authorities under a fictitious name for the father. http://law.justia.com/cases/federal/district-courts/FSupp/571/218/1494346/
When citizenship is claimed in adulthood, its retroactive nature does creates an issue as to unpaid tax and undeclared income and assets. The IRS does not, in practice, try to enforce the tax law retroactively in such cases — at least not in trivial cases, and not when the individual sought in good faith to have his/her citizenship status determined for the first time.
There are, however some points to note: In the case of a birth abroad there is a presumption of alienage. Where there is doubt about parentage, these facts must be proved, these days usually by DNA evidence. There remain many cases where citizenship is in doubt: thus out-of-hospital births, chiefly in border areas, where the State Department suspects fraud. Births abroad where the qualifying residence of the parent(s) is in doubt. Paternity cases, and the question of legitimation under local law.
To return to the debate: one is not required to register a birth abroad of an American citizen. An unregistered person can (as a practical matter) claim alienage and travel to the United States on a foreign passport, as 7 FAM and 9 FAM make clear.
As for this statement: “Sorry, that’s not what the Halifax embassy told us. We were told we had a certain window in which to do the paperwork. In addition, we were told that our children would have to take measures to retain that American citizenship when they reached adulthood, and now we are counting on that. Believe me, our young adult children are staying far away from any further entrapments.” (1) You mean the Consulate General in Halifax. Start with this: the USG is not responsible for the errors of its agents, and if you rely on a mistake the risk is yours. It is true there is a “window” in which a consular officer has the power to register a birth abroad and certify the child as an American citizen (subject to revocation if there is fraud or mistake): that “window” is 5 years. A Certification of Birth Abroad cannot be issued after 5 years; then one applies for a passport and the decision is made in Washington. (2) The retention provisions are long abrogated. But as I said, in the case of presumption of alienage, no G-Men are going to take the initiative. The answer might be different if your child won the Euromillions lottery and in the press interview thereafter said that his/her parents were born in the United States. But even then it would be a matter of the IRS waiting for assets or the child to be within its grasp.
See addition to this post:
PART 2:
From: Born abroad to US citizen parents in a #CookvTait world? Are you a US citizen or do have a right to US citizenship?
Andy05, thank you for clarifying everything, such as the fact that we registered the Consulate. Yes, I wasn’t thinking clearly and I couldn’t remember the time frame involved which you spelled out so clearly. (I’m fighting a sinus infection).
We primarily registered with the Consulate because if our children were tragically orphaned, their next-of-kin are all American, so they would have had to move to the U.S. and be raised there. We wanted their citizenship papers to be all in order (never foreseeing FATCA).
However, that is the one and only thing we did. They never obtained Social Security numbers or American passports nor registered with the Selective Service at age 18. If what you’re saying is completely valid, that our kids would be considered to be US citizens at birth anyway, we shouldn’t feel any remorse for registering them with the Consulate. You’re saying it wouldn’t make any difference. What is important now is that my kids and others like them can opt out of dual citizenship now that they are of adult age. Obviously, retaining it would be a massive burden to them and to their future spouses.
calgary411, the fact that you never registered your son born abroad and yet he is entrapped in US citizenship and tax compliance hell for his whole life is chilling and grossly unfair. I sincerely hope that the law that entraps him is changed soon.
Thanks, Jan — and Andy05 — and USCitizenAbroad for the information you have added to this quandry for what I think will be many (who don’t yet realize they will have to think about all of this).
Jan, I’m not taking any action to help my son regarding application for a SNN so he could then enter into tax and reporting compliance complexity and undue cost for assistance from the US tax compliance industry for the remainder of his life. I see absolutely no reason to do so as the ONLY reason I would contemplate that is for his, then, renunciation of a US-deemed *acquired* US citizenship I don’t recognize as just — as he would not have the *requisite mental capacity* to renounce, must have no influence or assistance with his decision to do so and a parent, a guardian or a trustee cannot act on such a person’s behalf, even with a court order. Such entrapment for anyone is insanity. Entrapment of any *Accidental American* instead of a a choice for them to CLAIM, or not, a US citizenship with their (accidental for them) birth facts is insanity. Further, this should never ever be his problem — if anyone’s, it is mine and the US public education system that did not make sure I learned (I have no recollection of any such content in my classes) these US facts of life.
If you are in U.S.A. then U.S.A. law can impose U.S.A. citizenship on you when you were born outside U.S.A.
Many Brockers, such as Calgary411’s son, are not actually in that situation. The dude is not in U.S.A. It is actually the Canadian Government imposing U.S.A. citizenship on him. It’s not as if U.S.A. bureaucrats were gonna whisk him out of Canada on an extraordinary rendition. Nay, the Government of Canada would decide whether to hand him over in order to guarantee a tax break for Canadian banks.
You are right, Tom Alciere. Not likely with my son’s registered accounts and the amounts held in them and we won’t be travelling to the USA on principle. In fact, it’s all on principle.
It is the former Canadian government who described my Canadian-born children and their parents who became Canadian citizens in 1975, by choice, as *US citizens who happen to abide in Canada*. I want the new Canadian government to live up to the new Prime Minister’s words that *A Canadian is a Canadian is a Canadian* not as the description of any of us like us in Canada by the former government. That was a real kick in the gut, especially as Conservative MPs mocked my son’s situation by taunts of *Just Renounce*. As far as I know, Candidate Justin Trudeau did not qualify his statement with *except those Canadians who are US citizens who happen to abide in Canada*.
A tad off topic. I’ve never understood why birth on US soil in and of itself seems to make one more ‘American’ in some people’s eyes than someone who similarly did not grow up in the US or make a life there, but who was born to US parents outside USA. The person born to American parents at least has American roots whereas the person connected to US solely through birthplace has none.
If I was born in China, rather than US, I bet that someone with Chinese parents who similarly did not grow up in China (but unlike me has Chinese heritage), would by many people be considered more ‘Chinese’ than me.
It is also important to note that many (most?) countries do not even bestow citizenship based solely on place of birth (For example Eritrea requires more than birth on Eritrean soil to be considered a citizen).
In my mind, both types of *Accidental Americans* should have the CHOICE to make an informed CLAIM to US citizenship (or any citizenship) at age of majority and with requisite mental capacity to understand all consequences / requirements that go along with such an extraneous, non-meaningful acquired citizenship. Why is it OK to instill an *acquired US citizenship* on either type of *Accidental American* when there are such CBT consequences of that citizenship? Common sense and my sense of justice tells me that neither should be entrapped without consent. If their CHOICE is not to make the claim based on their birth facts, such option should be NULL & VOID until and if such a person gives informed consent — an OPT-IN, not an OPT-OUT.
Yes, Calgary411, an “opt-in” makes a great deal more sense, as it doesn’t involve someone acknowledging the US citizenship being imposed on them. The opt-in element of the Obama budget proposal was its biggest flaw, IMO. People should be able to just go about their lives being non-American, oblivious to all this bullcrap.
Yes Calgary. It would have been really nice to have know all these years that US citizen is synonymous with US taxpayer. No doubt there are a lot of US citizens who since becoming aware of their US taxpayer status, have for the first time ever declined any knowledge of being US citizens, regardless where they were born or where their parents were born.
This post is mentioned in a draft paper by John Vlahoplus forthcoming in the British Journal of American Legal Studies, which argues that children born in other countries to American parents do not qualify as “natural-born citizens” for presidential eligibility:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2915556
He writes (in footnote 49, at pp. 11-12 of the draft):
He goes on to quote calgary411’s above “Nothing in my being” passage
@ Admins
I understand the moderation. I thought the comment I was commenting on was current. Guess I was just wishing it was current and not paying attention to the dates. Delete if you think best.