Some persons born dual US-Canadian citizens at birth, particularly those born of even one Canadian parent on US soil and with no adult connections to or claims on US citizenship, may have a viable relinquishment option (as distinct from a renunciation option, open to almost everyone) for getting a Certificate of Loss of Nationality of the United States (CLN). Please see other threads of this and our partner website for a discussion of the difference between relinquishment and renunciation and why it might matter to you.
I learned yesterday by private email something I had suspected but had not been confirmed. Some duals-at-birth have, ideally after the age of 18, applied for an received a Canadian Citizenship Card from Citizenship and Immigration Canada at some point in their past. To get such a card, one has to provide evidence (in these cases) that at least one parent was a Canadian citizen at the time you were born, and you also must swear and sign an oath of allegiance to the Queen of Canada.
There are seven different ways you can lose American citizenship, according to 8USC1481 see here http://www.law.cornell.edu/uscode/text/8/1481
Section 1, the most common relinquishment route in Canada AFAIK, is by obtaining naturalization in a foreign state (Canada) after reaching the age of 18 years. Duals at birth can’t qualify for this, since they were born duals and didn’t naturalize.
Section 5 covers renunciation of US citizenship “before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State.” (Digression: please note this is the ONLY section of the law passed by Congress that says anything about diplomatic or consular officers or forms prescribed by the Secretary of State; but never mind that for now.)
Section 2 however says you can lose your US citizenship “upon taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years.” Gosh gee, that sounds like swearing an oath of allegiance to the Queen upon applying for a Canadian citizenship card, doesn’t it?
Some time ago, on my urging, a dual-at-birth friend applied to Citizenship and Immigration Canada for a copy of his citizenship file through the Access to Information Act, at a cost of $5 and completion and submission of the appropriate form. The link is here:
We have long known that anyone who became a Canadian by naturalization will have a file with CIC and can access a copy of its contents through this process. What I was not sure about, was whether duals-at-birth who applied for a citizenship card or certificate also would have a file there. I suspected and hoped so, and it turns out I was right. My friend swore his oath (over the age of 18) more than 30 years ago, and yes he now has a copy of his signed oath and all other papers in his file. This should be true of every Canadian who has ever applied for a citizenship card or certificate.
I am not a lawyer, but I would be amazed if anyone who swore that oath and got the card after the age of 18 could not get a relinquishment CLN from the US State Department, certifying they actually lost their US citizenship back whenever they swore that oath, assuming the “preponderance of evidence” they provide and swear to on State Department Form 4079 is consistent with an intent to relinquish their US citizenship (basically, sworn statement supported by whatever documentation is possible to prove a negative, that they have done nothing significant since committing their claimed relinquishment to assert or exercise US citizenship and thereby refute or rebut their relinquishment claim).
I should add that at the moment, I am unaware of anyone having applied for a CLN using this argument, and hence do not know for certain whether it will work. I see no reason why it shouldn’t, but one never knows does one? If anyone reading this post has applied using this argument, please reply to this thread and tell us what happened. As soon as I hear definitively from anyone I know that they’ve tried this (whether successfully or otherwise), I will report back on this thread accordingly.
If you are a dual-at-birth Canadian-American and the foregoing applies to you, I urge you to apply for a copy of your file at the above link. You are not committing yourself to any specific course of action with the US State Department by doing so; in fact, under the law CIC cannot inform any third party of your request for a copy of your file. What you do with the contents of that file, or don’t do, upon receipt, it entirely at your discretion and at no penalty other than the $5 fee and the waiting time. They try to reply within 30 days, but the reality of workloads and staffing levels in these offices means realistically you’ll be waiting longer than that. And if a lot of folks start applying for their files (for naturalization as well as for citizenship card cases), that workload is going to jump.
If the above applies to you, I urge you to apply now for your file. You will have several weeks (at least) to think about whether you want to proceed with a claim for a relinquishment of US citizenship, but you might as well get the ball rolling on getting a copy of your file now – which is your right as a Canadian citizen, exercised for whatever reason you wish.
@Very confused and all others
Thanks for the IRS link. Directions on form 8854. Read it. Please note there are NO instructions AT ALL for anyone whose actual expatriation was before June 3, 2004. Hence that form (and the tax filing requirement for six years) do NOT apply in those cases. They don’t come out and say that, but if they have separate instructions for different periods of time and your period of time isn’t there, then obviously the form and instructions can’t apply to you.
The Michael J. Miller article I linked several posts above explains why this is so. IRS implicitly agrees with him, or his interpretation, they just don’t want to come out and say that. My interpretation anyway, and I think it’s a reasonable and obvious interpretation. It would have been helpful if IRS had just come out and said this, but since when has IRS been helpful to anyone in this mess?
I just wanted to let everyone know that I just received my CNIL backdated to June 1991! I used the argument above and applied for relinquishment (not renouncement) and did not pay the $2300 fee; I paid nothing. I am so grateful for the information I found in this post and other posts. The whole process only took 4 months. Again, Thank You!
Wow! Congratulations! So if I understand you correctly, you successfully claimed a relinquishment based on having sworn an oath of allegiance upon applying for a Canadian citizenship card (which is what I had suggested in my original post)? If so, this is a first at least to my personal knowledge. So it does work!
And because it dates to 1991 you are well free and clear of the dread form 8854 and six years of back tax returns to IRS, plus (due to the 2007 amendment to the Canada-US Tax Treaty exempting those who were Canadian citizens on or before November 1998, from any collection by CRA of IRS-claimed tax liabilities) you’re free and clear of any collection claims should IRS try to make them against you (very unlikely).
This is excellent news, for those folks who got a Canadian citizenship card and can get a copy of their citizenship oath from an ATI request to Citizenship and Immigration Canada. As I understand it.
Would you mind sharing with us, if you’re comfortable doing so, which consulate processed your application in 4 months? That’s less than what I’ve been hearing lately, and folks might be interested in knowing where you were able to get such (relatively) speedy service!
Yes, my first appointment was actually December 18th, 2014 at the Calgary consulate and I was going to renounce my citizenship; but, after reading several posts here I decided to try and claim relinquishment back to June 1991 when I swore my allegiance to Canada. The US consulate required more proof of my Canadian citizenship date (I was waiting for this from the CIC) so, I returned to the consulate on January 17th, 2015 with the final proof. They indicated that it would probably take 6 months from this date. The letter from the consulate is dated April 30th, 2015. The CLN says that I expatriated myself on June 21, 1991 under the provisions of Section INA 349 (a) (1). So happy! Again THANK YOU
Good to know, Renee. Glad to hear we were of help, and also glad to hear that the consulate in Calgary is being more reasonable in their wait and approval times than some other consulates.