Liberty and justice for all United States persons abroad

The Isaac Brock Society

Posted on by Posted in Issues regarding US persons abroad 56 Comments

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:
http://www.cic.gc.ca/english/department/atip/form-imm5563.asp
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.

I was born and educated in the US. After completing my post-graduate education, I entered Canada on a temporary work permit, moving to Canada because of the Vietnam war. Shortly after unpacking, I applied for landed immigrant status. A few months later I received in the mail an induction notice from the US Army; I drew a peace symbol on it in felt marker pen and mailed it back. As a result, I was indicted and a warrant was issued for my arrest (both were quashed in 1977 by the Carter amnesty). I became a Canadian citizen in 1975. In 1976, for the US Bicentennial I wrote a political letter to Henry Kissinger, then Secretary of State. In it I mentioned that I had "renounced" (I didn't then know of "relinquish") my US citizenship on becoming a Canadian, explaining in several pages my reasons for leaving the US. I also mentioned the fact that on my mother's side I am a descendant of a soldier who fought in Washington's army during the US rebellion, but now I was declaring my personal independence from the US and rejoining the British Commonwealth. Within six months, I received by mail a CLN recognizing my having expatriated myself from the US in 1975. I filed away my CLN and forgot I had it, until I found it after searching for it upon learning of FATCA and OVDI in August 2011. Since then, I proudly keep a photocopy of it with my passport (which is Canadian; I have never had a US passport in my life, nor will I ever). As a Canadian who long since ceased being an American and who has a CLN, I am not directly affected by FATCA or other US taxation outrages. However, my wife and several of her friends are affected, until their relinquishment CLNs (dating from 30-40 years ago) are issued. Also I have several close friends who were born in Canada of US parents and are considered by the US to be US citizens, though they have never lived in the US, worked there, earned income there, held property there, held US passports, or in any other way excercised USC and are horrified they might be considered US. I am active on this website and in writing my elected Canadian politicians about these issues, on their behalf. I am a retired former employee of the Government of Canada who faithfully and proudly served his adopted and adoptive country for many years. Updated September 2, 2012: earlier this week, my wife finally received her relinquishment CLN, State Department formal recognition that (in their exact words on the CLN) she "ceased to be a US citizen on" the date she became a Canadian more than 35 years ago. Mission Accomplished, to borrow words from my least-favourite contemporary/contemptible American. I will continue to monitor this website from time to time to see if I contribute useful information or opinions, but my wife and I are determined to regain our lives after the past twelve months of angst. Best wishes to all of you on this website in your odyssey toward freedom from the US.

56 thoughts on “Possible relinquishment route for CLN for some duals-at-birth in Canada”

  1. @ Schubert, I will be applying this way and thank you for the info because I had no idea where to get a copy of my oath. My problem, however, is that I was 16 at the time. I emailed a consulate about this issue asking if I would be denied for relinquishing and a backdated CLN. They said they couldn’t make that decision (ie if it was my intent to relinquish and if it was voluntary) by email. So they didn’t say “no”.

  2. Now that IS interesting, Very!

    I’ve been assuming that because Section 2 specifically says you have to have reached the age of 18, 16 wouldn’t cut it. However we do know that State has accepted oaths of renunciation from people as young as 16, or at least guidance has been provided I think in their procedures manual about this. It’s not their preference, and I think I read somewhere that if someone waltzes into an embassy or consulate at age 16 and says “I quit,” they’ll take it but tell him/her he/she can change mind when they turn 18 and all will be forgiven.

    Logic and humanity would dictate, in my eyes anyway, that if you swore an oath of allegiance to the Queen at 16, are now 40- or 50-something and have never since turning 16 done anything to claim or exercise US citizenship, why the heck couldn’t you get a relinquishment now based on what you did then? Everything you’ve done in your life since 16 is consistent with the intent, is voluntary, and if they’ll take a renunciation at 16 at the time, why not a post-hoc relinquishment based on an age-16 oath if the preponderance of evidence from the way you’ve lived your life since is perfectly consistent with a voluntary intent to relinquish?

    The fact they didn’t say “no” when you asked, suggests to me you might actually be able to make a case. Sounds like they want to see your 4079 and documentation, interview you, all face-to-face, before deciding. Which is fair ball I think; as far as I know, no one (other than me back in 1976 and one or two others back then) got a CLN strictly by mail or email. I know someone who tried recently, by writing directly to Washington as I did in 1976, and got a polite letter back saying essentially “nice try, but no, you have to go to an embassy or consulate in person for this.”

    My understanding (not legal advice) is that if you do go in for an interview and they tell you “sorry, won’t wash, you’ll have to renounce if you want to check out of the hotel”, they won’t actually open a computer file on you (they don’t seem to do that until you’ve been interviewed and have sworn and signed the relevant oath) and they certainly won’t report you to the IRS, since all they ever report to IRS (and AFAIK so far only for renunciations and post-2004 relinquishments) is copies of approved CLNs. Which won’t apply in your case.

    So in your circumstances, it might make sense for you to take a stab at a relinquishment and see what happens. Worse case, you’re back to square one having lost a couple of months (depending on how long CIC takes to send your documents and how long it takes State to decide, though when they decide against you that seems to happen fairly quickly much more so that approvals in fact).

    If you do proceed, please let us know whatever happens, when you can. Good luck!

  3. Thanks, Schubert … and your friend! This is really good to hear, should benefit a lot of people who are caught in a bizarre US nightmare. Could you post the wording of the oath?

    @Very Confused,
    I, too, am intrigued, positively so, by the response you got — it does sound like they’re leaving the door open to determine that the relinquishment had occurred. Wishing you all the best!

  4. @ Schubert and Pacifica

    The consulate also told me that if I do not qualify for relinquishment, they will file for renounce instead (it seems like it will be the same day but who knows).

    For anyone else looking for their citizenship file, you can do so online and receive an e-copy of it by email. This may be faster than snail mail. I will let you know how long it takes. HOPEFULLY my oath is will be sent!!!

  5. I have had NO connections with US since I departed at the age of 2 or 3. No passport, never voted, never registered my birth or the birth of my son, never lived there, no SSN, never paid taxes (very fearful of this however). The only american documents I have is my birth certificate and the fact that it says I was born in Tulsa on my Canadian passport. I am 31 now.

    If they say no, I am going to be furious. But I need to exit either way because I can’t tolerate the unknown of what might happen if I don’t.

  6. @ Very Confused,
    If not qualified for relinquishment, renunciation should occur at the same meeting as they’ve done that in previous cases. Basically it’s a difference of one form in the package. There’s also the option of if the consul recommends against relinquishment, one can still insist have one’s application sent to DC for determination – that actually worked out positively for Prairie Girl, though it took quite a while.

    At any rate, they know you were 16 and they’re willing to evaluate your case instead of writing back “no, too young,” So, that sounds good. Certainly your actions throughout your life back up that you knew exactly what you were doing at age 16.

  7. @Schubert, did you mean to restrict this to duals-at-birth born in the United States?

  8. I was born in the states to a Canadian Mother and a US Father and left within a few months. I wasn’t dual until I applied for Canadian Citizenship and swore an oath. If my Father had been Canadian (instead of my Mother), then I would have been dual. Apparently those were the rules back then. If I had been dual, however, I wouldn’t have had to swear an oath in order to obtain a citizenship card. If you have to swear an oath, then you were never dual, at least that’s what I understand. In any event I relinquished decades ago and used my oath as proof to recently obtain my CLN. I think most relinquishers are going the oath route.

  9. @ broken man

    Absolutely not, it should also apply to duals born in Canada. However, those folks have Canadian birth certificates and Canadian birth places on their passports. Unless our government allows banks to ask for where your parents were born, or unless birth certificates show that and banks are allowed to require birth certificates (and I’d hope there will be an outcry and court cases if either happens), the other category of dual is probably best advised just to stay under the radar entirely. Unless they’ve done something else to “out” themselves to the banks and IRS, I don’t see any way the border folks or State can identify them. Their parents might have registered them at birth at a US embassy or consulate, but AFAIK that information isn’t being provided to IRS. Registration isn’t necessary for a citizenship claim, AFAIK, and I think I read that someone was told by a US vice consul that they don’t impose citizenship on people born outside the US; it’s an option the person can exercise, but if the person doesn’t actively come forward to claim it, it doesn’t happen.

    I’d be surprised anyway if registration records in consulates and embassies around the world have been computerized until relatively recently. If the US is like Canada (I know this from conversation with an access to info supervisor over the phone here in Ottawa at Citizenship and Immigration), records going back certainly to most of the 1980s anyway are on microfilm or microfiche. If you have a specific name to search for, the records can be found (with some effort, in the citizenship records cases in Canada) but trolling a whole database looking for everyone is another ball of wax and probably not likely.

    So sure, anyone born in Canada of US parents who swore an oath of allegiance can get a CLN, but I’d suggest they might want to think a bit before proceeding, re how likely it is their banks or US border guards are ever going to twig to them. Not legal advice, just street advice …

  10. @Pacifica I don’t have the wording of the oath, I can ask my friend if he wants to provide it to me, in which case I’ll copy it here.

  11. This might apply to @Nick, but I just read that after he took the oath at age 18 he applied for a US passport. That could be argued though, because he only obtained it because a border guard hassled him and told he he needed it. He never even used it. Still, not the best “test case”. He has government employment as well, which might be an easier route.

    I would make all the claims at once and let them decide which they’d like to use.

  12. Schubert, re:

    Unless they’ve done something else to “out” themselves to the banks and IRS, I don’t see any way the border folks or State can identify them. Their parents might have registered them at birth at a US embassy or consulate, but AFAIK that information isn’t being provided to IRS. Registration isn’t necessary for a citizenship claim, AFAIK, and I think I read that someone was told by a US vice consul that they don’t impose citizenship on people born outside the US; it’s an option the person can exercise, but if the person doesn’t actively come forward to claim it, it doesn’t happen.

    Of course, I’ve am / my son ‘outed’. However, persons interested in this aspect of the absurdity might read comment below.

    http://isaacbrocksociety.ca/renunciation/comment-page-66/#comment-774978

    I still don’t think the answer is clear that a US citizenship not claimed is a US citizenship. How will the US get to all of these individuals born to US parents abroad, at least the ones who were never registered as US births abroad by their parents? Thanks to “YogaGirl’s” analysis, I agree that my adult son who cannot renounce US citizenship (a US citizenship that was never by his parents “claimed” / registered as a US birth abroad / US SSN / US Passport) should not now be able to “claim” or start paperwork for citizenship by applying for a US social security number by himself as he does not have the requisite ‘mental capacity’ to (as well) apply for / claim / whatever you want to call it US citizenship as the US Consulate says that he cannot renounce US citizenship because of his lack of ‘mental capacity’ and, further, that a parent, a guardian or a trustee cannot renounce (or claim?) that ‘supposed’ US citizenship, even with a court order. That’s my line of thinking and I’m sticking to it. Will my bank who has the RDSP for which I am the Holder for my son, accept this reasoning? Will the US accept this explanation if it puts 1 + 1 together to determine that that the RDSP (in my name for my son, with his name also reported) in the FBARs that I submitted to the US for years 2008 through 2012 is indeed for him (a US citizen from the moment of his birth to me — outside the US, in Canada)? It makes about as much sense as anything I’ve seen by the US Department of State or Treasury / IRS. Any other explanation just has him entrapped into US citizenship as I am told he cannot renounce US citizenship as anyone with requisite mental capacity could, even at any amount of dollars paid to any US tax lawyer or US immigration / nationality lawyer. That seemingly is against US law, but entrapment is lawful.

    Read what Sylvia D. Johnson, then Consul General, Ottawa Embassy, said about persons (supposedly with the requisite ‘mental capacity’) going to a US consulate to renounce a US citizenship that essentially was never claimed.

    In the post above, is “an” answer given about going to a US Consulate and a person between 18 and 18.5 years old telling them they do not claim US citizenship. Or, does that window of time pertain to a person between 18 and 18.5 years of age who HAS BEEN REGISTERED AS A US BIRTH ABROAD, telling the US Consulate that they do not want the US citizenship that their parent(s) so lovingly registered for them at their birth?

    I still don’t think the question about this is adequately answered. It’s all a crap shoot and the reason my friends and family think me stark raving mad. Who am I to say — all I understand is “common sense.”

    Anyone with specific detail on this that “I can take to the bank” — I’ll be most interested.

  13. Are you saying, that being born a US citizen but taking the oath to Canada when I got my canadian citizenship 6 years ago, that according to section 8….(2) 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; that there and then I basically was cancelled of my US citizenship? I have no ties there, no passport and have not gulp filed US taxs for years.

  14. @schubert, I am always amazed at how much altruistic generosity there is here at IBS and how helpful people are in sharing – and then how many people it can assist with knowing their possible options when it has seemed they were boxed in.

    I try to soak up all these various scenarios (none apply to me) in case I meet people who need the information.

    @calgary,
    I wish as well that your son could just be declared a Canadian period. The US obviously is not swayed by ethical considerations to make this any easier, or to even register that there is a serious problem – a human rights issue that they have created but which they refuse to act to correct.

  16. Im going to ask for my file, but I got my card in 2010 or 2011 and I can’t remember signing an oath. However, I certainly think it may be possible that I did, and I sincerely hope it IS the case! That will only back date me to two years ago, so not much advantage, but any little thing helps!

  17. @Carrida

    Welcome! First word of advice is not to panic. Find as much information as you can to make an informed decision, unlike what I did when I felt I had no other alternative than to enter OVDI.

    You may be able to make the case for having relinquished US Citizenship when you became a Canadian six years ago. Unfortunately, without 5 years of tax compliance, this will not completely extricate you from the US, but it would save you $450.

  18. Thank you Bubble.. I Am trying to breathe! I’m reading and googling as much as I can, what I’m seeing is at this point it’s prudent not to do anything until we see what’s going to happen with Canada and FATCO?

  19. One other question Bubble.. You mention 5 years of tax returns.. Well if I considered myself ” tossed ” from US citizenship per sec 8… Why would I have filed taxes?

  20. @Carrida

    I believe this thread addresses people who’re dual citizens at birth but are seeking a back dated CLN from when they received their Canadian citizenship cards. These people were not naturalized as Canadians. That’s not to say that you cannot receive a back dated CLN from 6 years ago, though.

    Here’s the thread where you can discuss your specific circumstances with those who’ve been through the process and know a lot more about the importance of when you may have relinquished:

    http://isaacbrocksociety.ca/renunciation/

  21. I relinquished and was born to Canadian parents in the US. I was never registered as a Canadian by my parents. I moved back to Canada as a child and applied for Canadian citizenship when I was 31. At that time, I didn’t know that I would be considered Canadian already. I was asked by the judge for proof of my parents’ Canadian citizenship and I didn’t realize, til 2011, when I requested information from CIC, that my citizenship was made retroactive to my birth.

    When I applied to relinquish my US citizenship, I said on the form that I swore and oath to the queen, even though I had no proof that I had, only a vague memory. Anyway, It worked and I got my relinquishment backdated to the day I received my citizenship certificate in 1990. My CLN did take 11 months, longer than anyone else at that time(2011) from Toronto. Not sure if my particular situation had anything to do with it.

  23. @iamquincy

    I wonder if others like you can do both; relinquish to save the renunciation fee, and be a Canadian at birth if they are subject to the exit tax 😉

  24. @ Iamquincy,

    I don’t think that’s what it slowed it down. Toronto turnaround seems to have been like molasses in 2011 (granted we do have a pretty small sample to make assumptions on, but anyway … Mrs. GreyOwl and Expat94 also took 11 months in 2011 and Petros took 12 months. In fact of the 7 Toronto expatriations reported to Brock in 2011, the fastest CLNs were 10 months.

    Things got better during 2012, but by late 2013 it seems to be slowing down again quite badly, not only here but other countries are reporting slow lately too 🙁

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