Liberty and justice for all United States persons abroad

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Tag Archives: child born abroad to US citizen parent

U.S. consulate in Netherlands ignorant of 9 FAM 202.1-2 regarding visa issuance to person with possible claim to U.S. citizenship?

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We’ve previously discussed the rising trend of of American emigrants choosing not to register their non-U.S.-born children as U.S. citizens. Children who don’t get registered and don’t hold a passport from a Visa Waiver Program country have to apply for a visa in order to visit their relatives in the United States.

Along those lines, over at Wikipedia’s Reference Desk an American in the Netherlands recently asked for advice about getting a U.S. visa for his daughter. His daughter is a Russian citizen & passport-holder and has Dutch permanent residence. However, he reports that he’s encountering some resistance from his local U.S. consulate:

I’ve been advised that someone (in this case a child, my daughter) who ‘has a claim to US citizenship’ – in this case because I am in fact an American citizen – is therefore ‘not eligible for visa to visit the US’. So I’m looking for some reference to what rules or law that might be? My daughter has a Russian passport, permanent Dutch residence, and we don’t plan to apply for American citizenship for her – in fact we’re in the process of obtaining Dutch citizenship for her, me and her mother. Can someone help me find a reference or rule or law that would explain why, if you could be an American citizen, but aren’t one, you would be denied the possibility of a visa. Thanks if you can help with a concrete reference or link. I’ve been googling but its an unusual circumstance.

He went on to clarify:

My advice was in fact the US Embassy. They received my daughter’s visa application, and sent me the message I quoted from above. My daughter is not a US citizen, and there isn’t a plan to be one. I’m trying to find good info with references to prepare for negotiating with the Embassy. I wouldn’t think that they can impose US citizenship on her. Thanks anyone who can point me to hard information.

The State Department’s own Foreign Affairs Manual in fact clarifies that the child can apply for a visitor visa rather than being forced into making a Consular Report of Birth Abroad. Specifically, 9 FAM 202.1-2(a), formerly 9 FAM 40.2 Note 1, says:

a. Processing Visa Applications for Aliens Who May Have a Claim to U.S. Citizenship:

(1) Nonimmigrant Visa Applicants: You may not issue a visa to an individual who has been determined to be a U.S. citizen. However, if a nonimmigrant visa applicant with a possible claim to U.S. citizenship is unable or unwilling to delay travel until he or she has been able to obtain documents to establish that status, as determined by the post’s citizenship and passport officer, you may presume that the applicant is an “alien” pursuing a nonimmigrant visa application. If you find the presumed alien eligible to receive the visa then you may issue the visa.

This subsection was last modified in November 2015. After the jump I discuss the history of updates to 9 FAM 202.1-2.

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2nd Circuit retroactively extends jus sanguinis citizenship to U.S. emigrant father’s out-of-wedlock kid

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judge-lohier_small Held by Circuit Judges Raymond Lohier (Obama appointee, pictured at right) and Cormac Carney (Dubya appointee) and District Judge Jed Rakoff (Clinton appointee) in Morales-Santana v. Lynch, No. 11-1252-ag (2nd Cir., 2015). Ironically, given the effects this may have in Canada, Lohier himself was born in Montreal. In the opinion, released on Wednesday, Lohier wrote:

Petitioner Luis Ramon Morales‐Santana seeks review of a Board of Immigration Appeals (“BIA”) decision denying his motion to reopen his removal proceedings to evaluate his claim of derivative citizenship. Under the statute in effect when Morales‐Santana was born, Immigration and Nationality Act of 1952, §§ 301(a)(7), 309(a), (c) (codified at 8 U.S.C.§§ 1401(a)(7), 1409(a), (c) (1952)), Morales‐Santana’s father satisfied the physical presence requirements for transmitting citizenship applicable to unwed citizen mothers but not the more stringent requirements applicable to unwed citizen fathers. On appeal, Morales‐Santana argues principally that this statutory scheme violates the Fifth Amendment’s guarantee of equal protection, and that the proper remedy is to extend to unwed fathers the benefits unwed mothers receive under the statute. We agree and hold that Morales‐Santana derived citizenship at birth through his father.

It seems this ruling (if upheld on appeal) could retroactively extend U.S. citizenship to a large number of people who previously believed — and may even have confirmed with lawyers & consular officers — that they were non-citizens and would remain so for life unless they took the voluntary steps of immigrating to the U.S. and naturalising there. This includes people who do not live in the United States, and who would thus be caught in the net of FATCA and citizenship-based taxation. Who exactly will be affected? Detailed attempt at an answer after the jump.

(Update: for those of you who don’t like PDFs, the folks over at Findlaw.com have posted the opinion as an HTML page.)

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It took 15 years for this child born in Mexico to Homeland parents to prove her U.S. citizenship

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Are you worried that you might have inherited “U.S. Personhood” from an American emigrant parent, but never had your status documented and have lived your whole life solely as a citizen of the country where you actually reside? Then you might find this case interesting. Via the Seattle Post-Intelligencer:

Cerrina was born prematurely in 1999 while her mother was visiting Mexico. Both of her parents were American citizens, but due to her early birth and some language difficulties, she wasn’t issued the correct form for babies born to American parents abroad. No one told her mother such a form was needed. When Crissy Foster brought her daughter home to Longview after the birth, the border guard who let them back into America even congratulated her on what he assumed was Cerrina’s automatic dual-citizenship, she said Friday.

But Cerrina didn’t have citizenship anywhere, as her mother soon learned … The United States wouldn’t issue a birth certificate to Cerrina without the correct paperwork from Mexico. And Mexico also didn’t claim her, because by law she was an American. At first the paperwork glitch seemed minor. But her case dragged on. It took a petition to the Mount Vernon School Board and a conference call with then-Congressman Brian Baird just to get Cerrina enrolled in kindergarten. She couldn’t be on her mother’s health insurance policy without a birth certificate, either.

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Falling proportion of American emigrants requesting Consular Reports of Birth Abroad for children

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In a comment, bubblebustin asked for statistics on the number of Consular Reports of Birth Abroad. Unfortunately I wasn’t able to find the actual numbers, but the State Department does make Paperwork Reduction Act filings with the Office of Management & Budget giving estimates on DS-2029 (the form parents fill out to apply for a CRBA).

State started out with an estimate of 70,000 filers per year in 1975, but apparently they found this was an overestimate and quickly revised that downwards to 35,000 per year in 1980. In about two decades after that, State increased their estimate of DS-2029 filers by about 31% to 46,000 in 2002, then increased by about 50% more over the decade to 68,627 per year. In other words, it took more than three decades for the estimated number of reported births to double. Yet the doubling time for the total population of Americans abroad is far shorter than that, apparently around a decade: in 2002 State estimated that 3.2 million Americans lived abroad, while last year they said 6.3 million.

In other words, the proportion of overseas Americans requesting Consular Reports of Birth Abroad has decreased by nearly 25% in the last decade. The obvious question: is this due to a drop in birthrates, or a drop in the proportion who choose to report their babies’ births to the U.S. government?

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