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.
The year is probably the key sticking point: Foster was born before 11 September 2001, but all her parents’ most serious attempts to prove her status came after that date. This, at its heart, is the mirror image of the situation which many border babies in Canada have been facing in recent years: pre-9/11 common-sense assumptions about citizenship collided with rigid post-9/11 documentary requirements, and after all the dust settled, the bureaucracy had shoved people into arbitrary boxes in which they really didn’t want to be stuck. The whole mess in both directions brings to mind an amusing point made by Victoria over two years ago:
The delicious irony of all this, of course, is that the people who have the least amount of paperwork to provide for a [Certificat de nationalité française] are the naturalized citizens (i.e. the foreigners) whereas the French who have been French for generations by blood and soil have to provide a pile of official papers proving Frenchness going back at least two generations. Was this really what the Right had in mind? Probably not. So I guess we can just consider this another unintended consequence of laws designed to harass the “foreign” which result in enormous inconvenience for the “native-born.”
Details about the Foster family’s case are unfortunately rather sparse. The only additional information I could find online was a Change.org petition by the mother last year, which links to a Facebook group. Anyway, the solution appears to have been some sort of horrible kludge:
Friday, the 14-year-old stood in a federal office, raised her hand along with 12 other people and pledged her loyalty to America. Lots of immigrants do this every year to become naturalized citizens, but Cerrina’s case is different: She’s always been an American citizen; but she never had a birth certificate … “It’s a unique case,” said Rebecca Russell, the Lake Oswego immigration lawyer who agreed to take on Cerrina’s case for free about a year ago. “And our system is not set up for unique cases … or ones that don’t fit inside the box.”
Russell threw the case out to a computer network of experienced immigration lawyers. They eventually figured out a way to petition for citizenship that didn’t require a birth certificate or passport. Another round of paperwork was submitted and last week Cerrina got a letter in the mail inviting her to Friday’s ceremony to receive a certificate of citizenship. With that, she’ll now be able to apply for a passport and a birth certificate.
This “petition for citizenship” sounds like something under 8 USC § 1431 or maybe § 1433, but it’s hard to tell from this vague description. But regardless of the exact legal mechanism, the Foster family’s difficulties in proving their daughter’s citizenship ties into something that Andrew Grossman, a retired U.S. State Department official, wrote in his 2007 paper “Conflicts in Cross-border Enforcement of Tax Claims”:
There is a significant number of instances of doubtful nationality where, because the requisite physical presence of a U.S. national parent has not been documented nor a foreign-born infant’s nationality claimed, an individual has not been regarded as a U.S. national for any purpose, including taxes.
In support of his claim, Grossman cites an interesting law: 25 U.S.C. § 1300b-11 through 16 (2005), Pub. L. 97-429, 96 Stat. 2269-70, which allows members of the Texas Band of Kickapoo Indians to apply U.S. citizenship (“any member of the Band whose name appears on the roll compiled by the Secretary, may, at his option, apply for United States citizenship”) because “although many members of the band  meet the requirements for United States citizenship, some of them cannot prove that they are United States citizens”, and also stated that “notwithstanding the Immigration and Nationality Act [8 U.S.C. 1101 et seq.], all members of the Band shall be entitled to freely pass and repass the borders of the United States and to live and work in the United States”
I have my doubts that other State Department officials, let alone judges, will find Grossman’s argument convincing, given that the law he cites clearly gives people the right but not the obligation to apply for U.S. citizenship, whereas 8 USC § 1401 contains no considerations of the individual volition but instead demands that “[t]he following shall be nationals and citizens of the United States at birth”. Nevertheless, he goes on to state:
As far as can be determined and notwithstanding the text of the Revenue Rulings cited above1, the United States seems not, after the Supreme Court decisions in Afroyim v. Rusk and Vance v. Terrazas, to have asserted with any force a claim to the allegiance of persons earlier divested of nationality under laws later abrogated with retroactive effect. Much less has it sought to claim as citizens their otherwise qualifying offspring born abroad or taken affirmative steps to subject either category of persons to tax on their worldwide income if they remained abroad.
(Cf. Rocha v. Immigration and Naturalization Service, 450 F.2d 946 (1st Cir. 1971) (U.S. nationality of mother deemed never to have been lost). It would seem a heroic undertaking for a tax agency to inquire sua sponte into matters relating to derivative acquisition of status, whether nationality or domicile. The task is rendered all the more difficult in the wake of Wauchope v. U.S. Dept. of State, 985 F.2d 1407 (9th Cir 1993) and Benner v. Canada (Secretary of State),  1 S.C.R. 358.)
However, another legal scholar expresses an opinion which seems to offer some support to Grossman’s thoughts, but in the completely different context of state succession in South Sudan. Mike Sanderson (Winter 2014), “Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law”. Northwestern Journal of International Human Rights Law 12(1), at page 89:
It might be that the only reasonable interpretation of the relevant provisions would grant citizenship in a particular case. This conclusion might, in fact, be entirely self-evident or may already have been adopted by a decision-maker in another state. However, regardless of any other determinations that may have already been made with respect to acquisition, unless the relevant administrative body in the responsible/granting state is willing to confirm acquisition of its nationality the individual is not considered as a national under operation of its law and therefore lacks good national protection. It is only the juridicial acts of the state which permit us to assess its views with any degree of certainty. This is true even when such confirmation can only be declarative in its effect.
Meanwhile, Grossman concludes his discussion of “clinging nationality” with a list of court cases, mostly from Europe, discussing involuntary attribution of citizenship. Unfortunately none of these cases seem to be available freely online, though you can probably find them in subscription-only databases:
A related category or persons is comprised of persons born abroad, otherwise U.S. citizens, whose births were never registered with U.S. consular authorities and who are therefore subject to a (rebuttable) presumption of alienage. While it is beyond the scope of this article to develop further the argument against involuntary attribution of nationality, several postwar cases involving expatriated Germans and citizens of unrecognized territories discuss the point.
(Terhoch v. Daudin, C.A. Paris, Feb. 8, 1947, 1947 II Dalloz 240, 14 Ann. Dig. 121 (former German national who served in French army allowed to recover former residence); cf. C.A. Berlin, Dec. 21, 1965, 18 W 1516/61, 43 I.L.R. 191 (Romanian native granted Hungarian nationality by Wiener Schiedsspruch, later rendered stateless; imposition of unwanted Romanian nationality declared contrary to international law). The Reich nationality law was abolished by Allied Control Council (Kommandatura), Law No. 1 of 20 Sept. 1945, Official Gazette of the Control Council for Germany, 1945, No. 1, p. 3, but this did not restore German nationality involuntarily to expatriated nationals: Oppenheimer v. Cattermole,  A.C. 249 (tax case, interpreting German Basic Law provisions on nationality of expatriated German Jews). Avery Jones v. Internal Revenue Comm’rs,  2 All E.R. 898, denied a treaty advantage to a U.S. citizen to whom British nationality was involuntarily attributed upon her marriage; such cases are improbable today (compare Airola v. Commission,  ECR 221 (Italian nationality acquired upon marriage; foreign posting allowance eligibility restored by the court).
Of course, if your bank or the IRS has already decided that you’re a “U.S. Person” on the basis of your ascendancy, their forms have no space for you to write in citations to international law journals and old court cases to try to prove that you are
not a camel solely a citizen of the country in which you reside.
bubblebustin, good point but I am not too worried about acquiring a USC for an in-law (beyond the ones my first husband “gifted” me with. My daughter cannot wait until we are officially, legally Canadians and I can’t see her foolishly cursing her kids with USC as she is quite mortified by her own US taint.
She has a classmate whose parents moved up here from Cali for work. The boy is always reminding her that they are both USC’s (a fact that came out by accident one day as she rarely admits to her US origins) and she says, “Mom, I will be glad when I can tell him that the only American in our class is him.”
Perhaps for compliance with FATCA banks could just ask “Are you eligible, according to the U.S. Constitution, to run for President of the United States if and when you reach the age of 35 years?” Surely that eligibility alone should be enough motivation for any normal person to file U.S. tax forms in perpetuity. 🙂
I believe that part about gestational mother is new. There was recent coverage in the news about the issues around transmitting US citizenship when neither the sperm or egg donor is a USC. This appears to allow the gestational mother to transmit citizenship to the child, at least that’s how I read it.
@Yogagirl “And the IRS, in any case, isn’t allowed by law to make citizens out of people on its own.”
Just like they are not allowed to negotiate Treaties (IGA’s) with other Countries.
@All, any of you with children. Again do not ever let them use a birth certtificate to open a financial account, never.
No good will ever come of that, none.
@bb — this is new to me, that US citizenship can exhibit “epigenetic inheritance”. This was established well before science discovered epigenetics.
From Wikipedia: “In biology, and specifically genetics, epigenetics is the study of mitotically or meiotically heritable changes in gene expression or cellular phenotype, caused by mechanisms other than changes in the underlying DNA sequence—hence the name epigenetics.”
Where in the past citizenship possibly entailed military service, however, for the US –
US Citizenship = Life long taxation wherever you live.
Bring on RBT.
kermitzii and bubblebustin, there has been discussions in the news in the past year about citizenship questions of donor eggs and sperm, which is beyond silly. Eggs and sperm! Only the USG would entertain such a ridiculous notion that one’s citizenship begins even before conception.
george, technically the IRS negotiates nothing. They are merely a department under the Treasury, which you correctly note isn’t allowed to negotiate treaties or make calls on who is or isn’t a citizen. Only the State Department can determine if one is a USC if there is any question about it. And I completely agree, as I said, about birth certificates. There is no reason at all that a bank should – or even be allowed – to ask for one. A provincially issued ID should suffice for opening up a local bank or investment account. You only have to prove you are who you say you are.
Ok, Kermitzii, that went WAAAY over my head.
With the US being the world’s biggest sperm donor, think about all those revenue generators running around out there.
I think the US has found a new way to create US citizens – through gestational mothers. The child doesn’t have to be born on US soil nor does it need either biological parent to be a US citizen.
@bb: no worse than the US tax code. A question: if a sperm or egg donor is American, is the baby an American even though the mother is not? How will the IRS find out? Oh, maybe there are rules in the tax code about this situation.
Oh Yogagirl you mentioned this above about sperms and eggs. Do you have a link to these? This puts ancestral inheritance of US citizenship on its head.
I haven’t seen any comments on same sex marriage. Since it isn’t legal in many US states, I wonder if these people are under the bus as well. I know one couple here that is legally married l in Canada. One is a US citizen and one is Canadian. Not sure if the Canadian’s bank account is subject to FATCA as well. Interesting thought! Does anyone know here on IBS?
@Benedict Arnold be me (CLN dated May 1,1978)
Thanks for your comments. I knew my children did not inherit my US “citizenship” but had never thought about the fact that my being born in the US could cause them banking issues. I will go back to not worrying about it, but must remember to warn them to never tell a banker where I was born – for their own good!
I guess that’s where the ‘gestational parent” part comes in – she only has to have carried the child, no egg necessary.
I think Yogagirl’s referring to this article that came out in 2012:
The IRS has a FAQ for Same-Sex-Married-Couples:
It looks like the IRS recognizes same-sex Canadian marriages for tax purposes.
But … the IRS does NOT recognize a common-law same-sex couple as “married” for tax purposes (Canada does).
@bubblebustin, that article is so interesting. Shows the another hopelessness of US Citizenship policy. It says
“But a child born to a U.S. citizen overseas through the increasingly common practice of in vitro fertilization with embryos from donor eggs and sperm is not American, unless an American is one of the donors. And that can be hard to prove since clinics may not reveal such things about their donors due to confidentiality agreements, immigration law experts say.”
In this case, the mother is American; it does not matter even if father and mother are not the birth mother. She would always have her kids be American for what that is worth. It is the case of “epigenetic inheritance” of US citizenship which @bb mentions above (gestational mother is USA citizen granter).
You wrote a great article, I enjoyed reading it. Indeed, much of the conflict came from the year Cerrina Foster was born as well as the new laws that quickly followed 9/11 attack on the world trade center. Each new law created thereafter blocked a late registration and/or paperwork proving citizenship (such as a passport, foriegn certificate, birth abroad documentation) which became enforced after 9/11.
Coming and going from Mexico before 9/11 did not require documentation other then a license.
Americans have an assumption of status of citizenship for themselves and their children no matter where they are born. People shouldn’t have that assumption anymore because now one must be able to prove their citizenship through a handful of specified forms, all of which require a legal birth document which isn’t always issued at birth.
Thanks for the read, I was hoping the knowledge of this conflict would help others.
Pingback: John Richardson interviews Andrew Grossman – March 16/14 Montreal | Citizenship Counselling For U.S. Citizens in Canada and Abroad
The trade in US genetic material does not usually impact citizenship on unrelated infants born abroad because paternity must be established by age 18 whereas the usual IVF disclosure clause doesn’t reveal that info until the child reaches majority. I have a case where the unwed mother, herself born abroad, lived for 13 months aged 1 & 2 in Northern NY State near the Canadian border and has never returned to the USA subsequently except for a couple of 2-week holidays. Unless she could prove with affidavits and passports that she spent 1 uninterrupted year in the US prior to her foreign-born child’s birth, the child is not an Amcit. State hinted to me that they would not look beyond such affidavits and presented mother’s US passport but might require DNA evidence for her as she is 40+ years old (and donated eggs from an alien would not count for US citizenship). But the client does NOT want US citizenship for her child now (she brought him for a brief holiday with visa waiver & ESTA). If the child ever wants US status s/he can argue the merits later. Or, if a minor, contrive a green card probably.
That’s very interesting, potrzebie. At what age does a mother’s eggs become suspect?
@Bubblebustin asks “At what age does a mother’s eggs become suspect?”
There are several cases out of Israel; here’s one I just found on a search engine: http://www.today.com/id/47073090/ns/today-today_news/t/born-american-mom-in-vitro-twins-denied-citizenship/
When I spoke to American Citizens’ Services at State (I am retired but dealt with them from time to time in years past) I took it as given that any woman aged around 40 or over would be asked for genetic proof. Another client (also born and living abroad) who did want American citizenship for her daughter (she expected to move with her French husband and child from Paris to California for highly-paid work) was 30-something; the consular officer on her own initiative waived proof of prior US constructive residence (dependent of USG employee abroad) based on the interview.
I haven’t read all the backstory here. But it’s worth remembering (It’s been mentioned on this forum before, I’m sure) that there is a presumption of alienage for every person born abroad. And that US citizenship in that case (as in the cases of birth on a US outlying territory) is statutory, not constitutional. The USG does not have the power to “impose” its nationality on someone born in Canada or elsewhere outside the USA … unless the poor slob actually visits the US or brings an administrative proceeding (usually application for a passport) to address the issue.
Hence those millions (my guess as to number) of persons born abroad who were, under American law, US citizens at birth but were never registered as such, really don’t have much to worry about from the IRS.
Funny (peculiar) that forever American citizenship was deemed to have value. That’s still true for the indigent and for those who seek their wealth in the USA. But it’s not true (it’s a liability) for rentiers living abroad, nor for many of those whose centre of family and economic interests is abroad. It’s a toss-up for many in the lower- and middle-middle class overseas: just a nuisance and expense of filing papers regarding their foreign assets and income.
I attribute this conflict of laws to American “Exceptionalism” (there’s a Wikipedia page for that). That’s also the reason why international law applies to “others”, not to the USG: remember how they grabbed their ball and went home from the Nicaragua case in the World Court when the proceedings weren’t going their way: https://en.wikipedia.org/wiki/Nicaragua_v._United_States
Compare the Iran diplomatic hostages case where, suddenly, international law mattered.
A state can’t impose its nationality willy-nilly on aliens although lex sanguinis is a dominant basis. I can’t see how foreign states are going to help the USG enforce its tax law against citizens of those states living there. I wish State would publish good statistics of foreign birth registrations and foreign passport applications but they don’t so I don’t have much to work with.
“The USG does not have the power to “impose” its nationality on someone born in Canada or elsewhere outside the USA … unless the poor slob actually visits the US or brings an administrative proceeding (usually application for a passport) to address the issue.”
A USC from Canada, a visa-waiver country with the US, could quite easily go his entire life not knowing he’s a US citizen, having travelled exclusively on his Canadian passport.
Canada agreed to help the US find its citizens living in Canada but conveniently doesn’t see that as helping the US enforce its tax regime on Canadians. Having negotiated some accounts exempt from FATCA reporting and stating it would not collect tax liabilities for the IRS against Canadian citizens, the Harper government is recommending US tax evasion as the remedy for the problems created by the FATCA IGA.
From what I understand, the eggs of an unwed American mother would yield an American child, but unlike a child from the sperm of an American father, the child can claim US citizenship at any time during their life, true?