Let’s try this again:
Assume that you, a long-time citizen and resident of France, were born in the U.S. and left U.S. at age four hours after birth, never to return AND you never developed any ties (passport whatever) with U.S. AND never wanted, and do not want, and refuse to accept imposition of U.S. citizenship on your French citizen person — notwithstanding a birth citizenship law of a foreign country (the U.S.).
A lot of people in this post want to define you as an “Accidental American Citizen”, apparently because they feel that this is a useful, easy to digest and understand, term.
But you say: “No way people — I don’t accept U.S. imposition of non-meaningful citizenship that I don’t want and I TELL YOU THAT I AM NOT AN AMERICAN CITIZEN I AM ONLY A CITIZEN OF FRANCE”.
So given the scenario above and your position as a human person, is it accurate or not to say that you are an American citizen?
Does the majority vote that you must defer to a foreign citizenship law that trumps your right to say no way?
“That would give undocumented and temporary residents exemption from the substantial presence test so they wouldn’t be subject to US tax law. There’s no chance they’d let that pass.”
You mean no chance the Democrats (who won’t pass up any opportunity to stick their fingers in our pockets) would pass this up. I hope people aren’t forgetting which political party dug through the bureaucratic morass to come up with the legislative abortion called “FATCA”
In fact, I actually hope that Trump will go so far as to appoint those far-right leaning judges to transfer the weight over from the scum-sucking avaricious bastards that want to bleed us financially dry. But considering his track record so far, I wouldn’t hold my breath.
@The_Animal The problem (as it now is) is that nobody, least of all the U.S. Supreme Court, could conceive (at the time of Terrazas and Afroyim) that attribution of U.S. citizenship to a newborn could be anything but good. The issue of prior residence and/or presence is subject to proof of fact: we are aware that nowadays many U.S. parent(s) are not registering the birth abroad of their infants (born with another nationality) and relying on the lack of standing of any person or agency to intervene. In practice 7 FAM 085 & 9 FAM 202.1-2 allow the unregistered child to enter and leave the USA as an alien.
@Norman Diamond More knowledge on her part (and, as I recall, resistance to bullying by a border guard) might have helped Calgary411’s son. On that point I await State Department interpretation (and perhaps future legislation) in the wake of Sessions v. Morales-Santana. Once again the Supreme Court has acted on nationality in ignorance and with presumption. Amelia Shaw’s exposition of the effects of parental marital status on nationality is now obsolete: http://www.afsa.org/invisible-tide-undocumented-us-kids-mexico Because the residence requirement (married US parent) is cumulative, allowing for breaks, while the presence requirement (nonmarital children of American mother) requires uninterrupted 365 days, the child of a mother who formerly would qualify to transmit nationality under 8 USC 1401(g) only by reason that she was a dependent of a U.S. Government employee assigned abroad only if married, transmits that citizenship anyway under the judgment.
Like Afroyim and Terrazas it may well be that the State Department views this ruling as retroactive notwithstanding that it doesn’t say so. I have in mind a specific child in that situation. While I believe that one can rely on the international-law rule accepted by the State Department (but not so much by the IRS if you look at the relevant regulations and revenue rulings) that nationality can only be attributed after birth (or adoption, or sometimes marriage) with the consent of the individual or his/her guardian there is a risk of confrontation. And as that child, as an alien, is able to benefit from a foreign disability trust and tax-sparing savings and pension without concern over (for example) PFIC, one could envisage the IRS saying otherwise. (The mother, as an American with some sort of signatory power, is subject to FBAR.)
Exorbitance in taxation where the target has no power to pay the tax is nothing new: California (and the UK) impose income tax on trusts based on the residence of trustees even if the trustee has no power to invade the trust to pay that tax: https://www.oshins.com/state-rankings-charts (pink chart) The trustee could be forced to pay out of his/her own pocket. And resignation by a trustee may be a practical impossibility or may require a court order (New York testamentary trustees, for example). Similarly the IRS requirement of disclosure even when contrary to foreign law and irrespective of possible foreign criminal liability.
“In practice 7 FAM 085 & 9 FAM 202.1-2 allow the unregistered child to enter and leave the USA as an alien.”
Hypothetically…in practice. However it was due to the insistence of said border guard that Calgary411’s son was ensnared. And what would her alternatives have been?
1) Object and possibly be incarcerated which the Obama Administration was perfectly happy to authorize the border guards to do in the case of a recalcitrant parent and subject her son to the whims of Social Services – due to his incapacity?
2) I do not know what the circumstances of their entry to the United States was for, but my assumption is that it was a necessity.
I also have a son in the same situation as Calgary 411 (disabled, but my son is severely autistic and has develoopment delay that is in the severe spectrum). There but for the grace of good fortune; it could very well have been the same situation for my family.
People can quote piles upon piles of legal precedent at me, but the only DAMNED THING I WANT…is for children born on foreign soil to have lived on US soil for a certain number of years to be a United States citizen.
And if one wants to talk about extricating US parent children from war torn countries, it should be a case by case basis, not a blanket “here’s your US citizenship, pay your damned taxes.” sort of unilateral foisting of US citizenship onto foreign born children world-wide
“the only DAMNED THING I WANT…is for children born on foreign soil to have lived on US soil for a certain number of years to be a United States citizen.”
What if instead, the US left their citizenship laws as they are and they simply stopped interfering in the lives of non-resident US citizens. Including of course taxation, FBARs, FATCA, chess tournaments, vacations in Cuba, etc, much like Canada and other civilized countries do? Wouldn’t that be just as good, and better? It would free all non-resident citizens, not just those born on foreign soil: Accidentals born in the US, all expats, period.
By the grace of good fortune I am glad it was not you, The_Animal, and anything I have come forward with is not for my son only but for all sons and daughters LIKE my son, yours included. My son was born in Calgary, AB, Canada to two (at the time) US citizen parents who became Canadian citizens the following year and I have been informed by several that he had acquired (as my daughter who has renounced) USC from his first breath on this earth, in Canada. My son was never registered as a US birth abroad, never lived a day of his life as a resident of the US and never had any benefit from the US, only from Canada. The facts remain the same; I have not helped enter him any other way into USC or compliance, for I am still of the mind that he is (or should be) a Canadian only as in *A Canadian is A Canadian is A Canadian*! My son was not with me when I, not knowing what I very well know now, was intimidated at a crossing from Canada into the US and thus made unwise decisions. I was ignorant to the concept of US CBT so my US education was for naught. The US border guard, after questioning me for what seemed a very long time and then seeing that I was born in New York State (stated on my Canadian passport), told me he would let me cross this time but the next time it must be with a US passport. (My family had crossed previously many times to visit family only ever using Canadian passports or other documentation so, though the law is the law is the law that a USC must cross the US border only with a US passport, a blind eye to that is obvious, then and still.) I am in compliance with US income tax and FBAR returns, 2005 through 2012, the year that I officially renounced my USC and had holes punched in the only US passport I ever had that I naively obtained after my sorry intimidation at the border. My FBARs in my compliance identify my son and financial account as I hold a Canadian Registered Disability Savings Plan for my son (he not having the capacity to do so), the beneficiary of that RDSP of which I am the Holder at a later date. The only taxes I owed the US were for the bonds and grants that the Canadian government put into my son’s RDSP, matching contributions (which I maintain is theft by the US IRS from the Canadian taxpayer).
I completed my *official* renunciation of USC in 2012 (having previously believed I had done so when *warned* in 1975 that if my then-husband and I became Canadian citizens, we would lose our US citizenship — no mention of anything like a CLN required) and have not since (or for some time before) crossed the US border. I have just returned from a (to me) necessary trip to the US to support my sister there and persons who were my brother’s day-to-day family after a tragic and violent accident that killed my younger brother. I actually had to go through US Customs and Immigration twice, one day after another for my first flight into the US was cancelled and we had to get off the plane after boarding in the middle of the morning and were put up for a few hours of sleep in a Toronto hotel. The first time through, the border official noticed my place of birth on my Canadian passport and I told him that I had renounced my US citizenship. He asked nothing more. The next day, going through again, another US border official said not a word nor gave any indication of a smile but stamped my Canadian passport as *entered the US on July 12, 2017* — my Canadian passport had never in any previous crossing been stamped. Perhaps it was because he could see that I had renounced and had a CLN. Anyway, this was a time I felt I had to cross for family reasons and, of course, would not have my son accompany me. To say the very least, I am very glad to be back on Canadian soil. (Me, why was it me that had to go through US Customs and Immigration two days in a row — once one time too many?)
It is now SOP for the US border guys to stamp everyone’s passport (at least for air travel).
Canadians get a 6 month entry visa.
DoD,
Only of passing interest to me. Thanks for the new SOP — at least 50% of the time then; one day not stamped / the next day stamped in my recent crossing(s) days ago.
Second Australian Politician Forced to Resign Over Dual Citizenship
“I left Canada as a baby and I’ve never been back. I had no idea that I was Canadian citizen”
https://www.usnews.com/news/world/articles/2017-07-18/second-australian-politician-forced-to-resign-over-dual-citizenship
“What if instead, the US left their citizenship laws as they are and they simply stopped interfering in the lives of non-resident US citizens. Including of course taxation, FBARs, FATCA, chess tournaments, vacations in Cuba, etc, much like Canada and other civilized countries do? Wouldn’t that be just as good, and better? It would free all non-resident citizens, not just those born on foreign soil: Accidentals born in the US, all expats, period.”
You know that will happen…WHEN HELL FREEZES OVER. We are in a fight…against everything the United States stands for. They view their citizens as nothing but a tax-base and their citizens abroad as sheep to be fleeced because no state senator gives a damn about what expatriates want.
The_Animal asked “And what would her alternatives have been?”
Not to enter the USA. At an airport that would be easy, but even at a land crossing you have done nothing illegal (yes one can be fined but not a huge amount and it rarely happens that way).
My 4-to grandson, austistic at a “medium level” according to the authorities and benefits agency, but bilingual, sociable and mainstreamed is not a US citizen: but he would be if born today because his foreign born mother would be credited with 5 years’ noncontinous residence of which 2 after age 14. She never spent 365 continuous days in the US. (Her sister’s children don’t “qualify” under either rule and are safely alien.) Presumably the 4-yo could apply anytime in his life based on the Ginsburg judgment but that would create a tax nightmare for his disability trust. And his life.
Morales-Santana, like all these nationality cases, have untoward results never thought of (or cared about) by anyone involved. There are other countries that abuse their sovereign claim to allegiance by their accidental and/or reluctant citizens. Iran comes to mind but there are others including China (whether or not the ethnic Chinese has a right to a passport). And the US Government rightly criticises them. But the US has always thought of itself as beyond, or immune from, international law except when it suits its own purposes.
@Calgary, so very sorry about the tragic and untimely death of your brother. And commiserate re the additional unnecessary layers of stresses and tension that the US creates for expats who out of family necessity must on occasion enter the US. It is absurd and unjust that the US has created a situation where US birthplace and parentage haunts people.
There is no good reason why birthplace, parentage and citizenship should be made into such a burden since they are characteristics a person had no control over.