By which of course I’m referring to Vietnam, where media reports state that 1,077 people renounced Vietnamese citizenship during the first quarter of 2017, while by counting notices in the official gazette I came up with a somewhat higher figure of 1,382. Since Vietnam’s population is roughly 92.7 million, I guess we can say, using FATCA-natics’ logic, that 92,698,618 people chose not to renounce their citizenship and so Vietnam is 99.999% perfect, right?

Sarcasm aside, Vietnamese nationality law and bureaucracy have several praiseworthy aspects. First, there are a few provisions which try to prevent “accidental citizenship”, meaning that some of the diaspora can avoid going through renunciation procedures in the first place (though as one case from the United Kingdom demonstrates, these provisions haven’t always worked very well). They even issue certificates of non-citizenship to people who never had Vietnamese nationality but need to convince other disbelieving governments or private institutions of that fact.

For those who do need to renounce, Vietnam does things relatively efficiently. The Vietnamese embassy in DC says that they accept renunciation forms by mail. The law requires them to respond to an application for renunciation within 60 working days. And the Vietnamese government managed to issue a press release about their Q1 renunciation statistics less than four weeks after the end of the quarter.

In contrast, the U.S. State Department’s unilateral demand for in-person renunciation appointments, and strict rationing of those appointments, makes the waiting list ten months long in some places. You might wait more than a year after that to get your Certificate of Loss of Nationality. They certainly don’t issue certificates of non-citizenship. And while 26 USC § 6039G(d) requires the U.S. government to publish a list of renunciants within 30 days after the end of each quarter, there was nothing relevant in Friday’s Federal Register and nothing scheduled for Monday’s either.

Table of contents

1. Detailed statistics by country
2. Privacy vs. transparency
3. Renunciation fees and timeline
4. Avoiding accidental citizenship for emigrants’ kids
5. But not consistently for emigrants themselves
6. Pham v Secretary of State for the Home Department
7. Certificates of non-citizenship
8. Conclusion

Detailed statistics by country

Article 40, Paragraph 5 of Vietnam’s 2008 Nationality Law (Law 24/2008/QH-12) requires the Office of the President to publish all decisions on naturalisation, restoration, and renunciation of Vietnamese nationality in the official gazette.

The official gazette says that almost all of these ex-Vietnamese renunciants reside in countries like Germany, Singapore, and South Korea where applicants for naturalisation generally are not allowed to retain their previous citizenships. That is to say, they were renouncing citizenship in order to get on with their lives in the countries where they actually live.

Only four Vietnamese people in the United States renounced their Vietnamese citizenship — because U.S. lawmakers explicitly rejected the idea of requiring immigrants to get a certificate of release from their previous citizenship, and Vietnam doesn’t block them from getting on with their lives if they don’t get such a certificate (after all, Vietnam abolished citizenship-based taxation back in 2008).

Privacy vs. transparency

If you click through to some of the Vietnamese gazette notices linked above, you’ll see that they include not just the name but the birth date, birthplace, and current address of the person in question. Other countries, such as South Korea, publish a similar level of detail. This is done for the purpose of transparency — it allows everyone to see that the government is not arbitrarily depriving people of nationality, nor handing out naturalisation to people who don’t qualify for it.

Publishing this level of detail may violate the privacy of the individuals involved, but it also lets the public come to its own conclusion about who they are. Are these Vietnamese emigrants actually “selfish traitors fleeing to tax havens to avoid paying their fair share”? Well, pretty clearly not: most of them live in Germany and Taiwan, while only four live in the world’s best tax haven. The Vietnamese renunciants living here in the much smaller and less secretive tax haven of Hong Kong clearly aren’t wealthy either: their addresses are in suburban public housing estates or poor urban areas, not swanky Mid-Levels harbourview apartments.

In contrast, the U.S. Congress’ decision to demand that the IRS begin publishing the names of renunciants in 1995 was driven not by transparency but by the desire to shame renunciants publicly, and hence the Federal Register includes only enough information to titillate, not to inform. So when political hacks in Congress and the media spread lies that emigrants are wealthy traitors fleeing to golf courses in Bermuda in order to evade taxes, there’s no data to contradict them.

Renunciation fees and timeline

Update, 3 May 2017: better source for the renunciation fee

According to Joint Circular 08/1998/TTLT-BTC-BTP-BNG, issued by the Ministry of Finance, the Ministry of Justice, and the Ministry of Foreign Affairs on 31 December 1998, people renouncing Vietnamese citizenship have to pay a fee of VND 2.5 million, divided into VND 2 million for processing the renunciation paperwork and VND 500,000 for issuing the proof of loss of nationality. This was about US$180 at the exchange rates back then, and US$110 at current rates — a rather high fee for a not-very-rich country. As such, it continues to prompt negative mentions in the media decades after it was implemented, for example in this Voice of America article last year. Oddly enough, that article failed to mention the State Department’s own fee of $2,350 for Americans seeking to exercise their human right to change nationality.

The fee may be high, but in Vietnam you at least get a legally-mandated level of service in exchange: Article 29 of the 2008 nationality law commits to a detailed timeline for the processing of renunciation applications. For those renouncing from within Vietnam the paperwork seems to have to go through more bureaucratic hands, but from abroad it’s much simpler: the consulate has 20 working days to review the file and send it to the Ministry of Justice, which then has another 20 days to forward it to the President’s office for signature, which then has 20 days to review the decision.

In contrast, a U.S. court has implicitly opined (albeit in dicta in a 1481(a)(6) jailhouse renunciant case) that even a four-year delay wouldn’t be unreasonable. Keene v. U.S. Dep’t of Homeland Security, Case No. 3:16cv94/LC/CJK (N.D. Fla., 2016):

Even assuming, without deciding, that DHS has a ministerial duty to respond to plaintiff’s request to renounce his citizenship, see, e.g., Turner v. Beers, 5 F.Supp.3d 115, 119 (D.D.C. 2013) (citing cases from that court holding that the only ministerial duty DHS owes to prisoners seeking to renounce their citizenship is to respond to their requests), plaintiff has no clear right to a response at this time. There is no statute or regulation specifying a time frame for response to a request for voluntary expatriation. Plaintiff’s pleadings (doc. 1) indicate that his requests have been pending only six months. Even assuming arguendo that DHS must adjudicate applications in a reasonable time, “[w]hether a passage of time is ‘reasonable’ is itself a subjective, merits-based determination, not a ‘clear right.'” Orabi v. Chertoff, 562 F.Supp.2d 1377, 1383 (N.D. Ga. 2007) … There is no indication in this case that DHS has refused to review plaintiff’s request.

In Orabi, District Judge Jack T. Camp ruled that three-and-a-half years with no end in sight is a perfectly reasonable speed for government work:

In the absence of Eleventh Circuit authority on this issue and no clear trend among district courts, the Court finds the approach set out in Safadi persuasive and adopts it. There is no indication in this case that Defendants have refused to act. Cf. Safadi, 466 F.Supp.2d [696] at 700 (jurisdiction may exist “where USCIS refused altogether to process an adjustment application or where the delay was so unreasonable as to be tantamount to a refusal to process the application.”). Rather, it appears that only Saadi’s FBI name check remains pending. The approximately three-and-a-half-year delay that has elapsed while CIS awaits Saadi’s FBI name check does not, standing alone, rise to the level of an unreasonable delay. Cf Grinberg [v. Swacina] 478 F.Supp.2d [1350] at 1354; Safadi [v. Howard], 466 F.Supp.2d at 700-01. Therefore, pursuant to § 1252(a)(2)(B)(ii), the Court lacks subject matter jurisdiction over this case.

The earliest case cited, Safadi, ultimately said that a four-year delay in processing an adjustment-of-status case, due to the same tardiness in conducting FBI name checks at issue in Orabi, was justifiable on national security grounds. (Ironically, USCIS realised last November that their Electronic Immigration System, “ELIS” for short, often failed to conduct those FBI name checks in the first place, and that as many as 20,000 green cards might have been issued in error. This earned USCIS a rebuke from the House Judiciary Committee, and ultimately led DHS to recommend that ELIS be shut down, as a recent Fiscal Times article discussed).

Of course, no non-citizen has a right to a green card or naturalisation, and Congress has specifically provided that decisions of USCIS in this regard are unreviewable (8 USC § 1252(a)(2)(B)). In contrast, when it comes to the right of citizens to renounce, the Expatriation Act of 1868 explicitly states that “that any declaration, instruction, opinion, order, or decision of any officers of this government which restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government” — but I guess that’s a dead letter anyway.

Avoiding accidental citizenship for emigrants’ kids

Article 2 of the original North Vietnamese nationality law (Edict No. 53 of 20 October 1945) provided for unlimited jus sanguinis along the paternal line. Article 6, Paragraph 3 of the 1988 nationality law (Law of 28 June 1988) changed this to allow children to inherit Vietnamese citizenship from either parent, but introduced the principle that in a mixed-nationality marriage the parents rather than the State had the right to choose the nationality of the child; if the child was born outside of Vietnam and the non-Vietnamese parent did not give their written agreement, the child would not inherit Vietnamese citizenship.

Even after Vietnam began its attempt to impose citizenship-based taxation in 1991, they did not turn to playing tricks with the nationality law to create a bunch of accidental citizens; Article 17, Paragraph 2 of the 1998 nationality law (Law 07/1998/QH-10) retained the principle of letting parents choose their child’s nationality. This continues in the 2008 nationality law, which states:

But not consistently for emigrants themselves

Unfortunately, while Vietnamese law has prevented accidental citizenship at birth in the case of some emigrants’ children, it has not been consistent in preventing another kind of accidental citizenship: making it clear to people of Vietnamese origin who settled for a long time in a foreign country and naturalised there whether or not they would automatically lose their Vietnamese citizenship.

Article 7 of the 1945 law was quite clear on this point, but later laws were not: Article 3 of both the 1988 and 1998 laws stated that Vietnam only “recognises” (công nhận) one nationality for Vietnamese citizens. but it’s not clear whether this was intended to imply loss of Vietnamese citizenship when naturalising abroad or simply function as a restatement of the Master Nationality Rule. (Indeed, a similar clause in the Chinese nationality law is interpreted both ways simultaneously: to forbid dual nationality for citizens from mainland China, and to allow it for citizens from Hong Kong and Macau.)

Going in the opposite direction, Vietnam did not at first require immigrants to Vietnam to renounce their previous citizenships if they wanted to become Vietnamese either; neither the first naturalisation law (Edict No. 73 of 7 December 1945) nor the 1988 nationality law had any such requirement. Art. 20 Para. 3 of the 1998 law did require that immigrants to Vietnam renounce their previous citizenships if they wanted to become Vietnamese, but the 2008 law removed this requirement as part of its general acceptance of dual nationality.

Though the 2008 law fully legalised dual citizenship for both immigrants and emigrants, it also contained another provision which can be viewed as an effort to prevent accidental retention of citizenship by emigrants who weren’t really aware that they were keeping it:

Pham v Secretary of State for the Home Department

All of the ambiguity about dual citizenship in the 1988 and 1998 laws came to a head most famously not in a tax case but a terrorism one. A young man from Vietnam named Pham Minh Quang fled to Hong Kong in 1989 at age six with his family, resettled in the United Kingdom, became a British citizen, later converted to Islam and went to Yemen for training with Al Qaida, and was deprived of his British citizenship in December 2011 despite his claim (probably based on genuine belief) that he was no longer a Vietnamese citizen and so deprivation would make him stateless. The British government then tried deporting Pham to Vietnam, which refused to accept that he was a citizen either. The courts later affirmed the government’s view that Pham should have still been a citizen of Vietnam by operation of Vietnamese law on the day when he was stripped of British citizenship, and thus his denaturalisation was not barred on the grounds that it would have made him stateless: Pham v Secretary of State for the Home Department, [2015] UKSC 19.

One interesting aspect of Pham’s case: how it interacts with Art. 13 Para. 2 of the 2008 law. If Vietnam had set the time limit to three years rather than five years (as, for example, Article 150 of Paraguay’s constitution does — though that applies only to naturalised citizens), then Pham’s British citizenship could have been saved. In any case, assuming that he was still a Vietnamese citizen and did not register, Art. 13 Para. 2 would have deprived him (and probably millions of other members of the diaspora) of Vietnamese citizenship anyway in 2013, leaving him genuinely stateless. A cynic might even argue that the Vietnamese government was waiting for this to happen before repealing Art. 13 Para. 2, which they finally did with Law 56/2014/QH13. In an odd way, this is probably the nicest thing the SRVN government has ever done for all the ARVN veterans and their kids: putting even more barriers in the way of their deportation from the countries where they have settled. It’s a win-win to which neither side will admit.

After his deprivation of British citizenship, Pham was extradited to the United States, where he pleaded guilty to terrorism-related charges and was sentenced to 40 years in prison. Four decades hence, I will be curious to see — assuming that I have not succumbed to Alzheimer’s or a U.S. drone strike before then — whether the U.S. has any more success than the U.K. did at deporting Pham to Vietnam. An agreement from the reign of Bush the Lesser makes it rather difficult for the U.S. to get Vietnam to accept people like Pham who fled from communism in the 1970s and 1980s, though none of its provisions exactly apply to him.

Quite a few Republicans in Washington are dissatisfied with this agreement and the general posture of the Vietnamese government. In particular, Ted Poe (R-TX-2) has even sponsored several bills to halt visa issuance to citizens of countries which don’t take back deportees (e.g. H.R. 3256 in 2011), though more recently he’s softened his stance to stop only diplomatic visa issuance while leaving students and immigrants alone. In any case, Poe specifically mentioned as justification for his bills a Vietnamese man who came to the U.S. in the 1980s, was supposed to have been deported in 2006, but was instead released until his re-arrest in 2012 on murder charges.

Certificates of non-citizenship

A few years ago, Victoria asked:

[V]ery much in line with a question someone asked me to consider recently: How does one prove that one is NOT a citizen? A CLN is for those who once had it, right? A CNF (French nationality certificate) is to demonstrate that one has citizenship?

So what kind of document can one get or ask for that says, I am a citizen of X and/or Y – I am not a citizen of any other country. Maybe we could ask the UN to come up something? A certified Universal Citizenship Certificate, perhaps?

Well, I’ve finally stumbled across an answer for one country. In April 1999, Vietnam’s Ministry of Justice issued Circular 09/1999/TT-BTP, announcing the procedures for applying for a certificate that you do not have Vietnamese nationality. You can only apply for one if you’ve previously resided in Vietnam for at least six months, but it’s better than what the U.S. gives out — no proof at all.

I don’t see any particular provisions in the 1998 nationality law which would require the Vietnamese government to issue such certificates. I guess there’s general authority to issue such certificates under Art. 35 Para. 3 and Art. 36 Para. 3, which respectively give municipal governments and overseas diplomatic missions the power to “review and issue documents certifying the possession of the nationality of Vietnam and documents confirming the loss of the nationality of Vietnam” (Xét và cấp Giấy chứng nhận có quốc tịch Việt Nam, Giấy xác nhận mất quốc tịch Việt Nam), but that doesn’t really require such certificates. It seems like the bureaucracy just kind of decided on their own that this would be a good idea.

Conclusion

Well, I got angry at some throwaway comment at a Congressional hearing, and when I get angry I write a few thousand words. Thanks to the coincidental timing of a newspaper article about Vietnamese renunciation statistics, those few thousand words ended up being about Vietnam. And so I’ve gone rather far afield from the usual subject area of the Isaac Brock Society.

Or maybe not that far: after all, we have some readers who moved to Canada specifically in order to avoid being sent to Vietnam. Four decades after that undeclared war on Vietnamese soil, the Vietnamese at home have largely forgiven their diaspora and are trying to resolve their nationality issues, even if that means “losing” them to the other country in which they actually live (and even if the older diaspora are much less forgiving in return, burdened with the feeling that they lost their homeland to communism). Hence a three-month time limit on issuing renunciation certificates, no jus sanguinis without consent for mixed nationality couples, and no citizenship-based taxation. Granted, Vietnam isn’t doing everything perfectly, but it’s not doing so badly either.

Meanwhile, the U.S. has FATCA and the rest of the alphabet soup of the “Internal” Revenue Code, a $2,350 renunciation fee, and ten-month appointment backlogs. And they’re still enforcing their visa ban on deserters from that war that wasn’t even fought on their own soil. Whatever else you may think about Vietnam’s current government, this is a rather poignant demonstration of one very simple fact: it doesn’t require a great deal of resources for a government to avoid putting unnecessary barriers in the way of their diaspora.