I relinquished 20 years ago, and they know it. If they decided to re-write history, they obviously can’t play nice, and I’m not going to play with them. I got as far as talking to the vice consul, and she wanted me to start by taking an oath that we both knew was false. I am proudly Australian, let them prove otherwise. — ProudAussie, 1 February 2015
We’ve suggested here several times that Washington should bear the burden of proving continued U.S. citizenship in the event an emigrant claims loss of citizenship occurred long ago — especially if the claim of continued citizenship is accompanied by a demand that an emigrant fulfill one of the alleged duties of U.S. citizenship or submit to punishment for failure to fulfill such duties. The U.S. government should have to prove not only that an emigrant took actions which could only be performed lawfully by U.S. citizens but that such actions were actually taken with intent to retain U.S. citizenship. To require otherwise is a deliberate perversion of the spirit of the Warren Court’s efforts to prevent the executive from using nationality law as a tool of punishment.
Unfortunately, the law as it stands — 8 USC § 1481(b) — places the burden of proof “upon the person or party claiming that such loss occurred”, and in October 2014 the State Department updated the relevant sections of the Foreign Affairs Manual to ensure that consular officers understand all the nuances of their power to make negative recommendations in relinquishment cases when they feel the emigrant has not provided sufficient evidence of action or intent to meet the burden of proof.
The legislator who wrote § 1481(b) — a detractor of the Warren Court’s rulings on nationality — falsely claimed he intended to place the burden of proof on the government. He was certainly aware that it would not always be the government asserting loss of citizenship; a very peculiar phrase in § 1481(b) suggests he was not only aware of such instances in general terms but knew in detail the legal strategies used by an individual in one such case. So this legislator lied to his colleagues and the public to get his law passed. He apparently expected he could avoid any scrutiny of his lies by making vague and jingoistic speeches, and he was correct — half a century later, it’s beyond the power of any mortal to hold him to account.
This legislator was quite famous, too: if you were alive when he was in office you’ll likely be familiar with his name, and even if you weren’t you’ll recognise the name of the infamous committee he headed, whose annual report crowed about its great achievement of getting this law passed.
