I asked Cheryl to share her story, as I thought it is important for others to see her claim to have relinquished US citizenship despite having dual citizenship (USA/Canada) at birth. It may be very helpful to others in a similar situation.
Cheryl’s Citizenship Story
I was born in the U.S. to Canadian parents although I didn’t know that for many years. I was the only member of my family born in the United States; all my grandparents, aunts, uncles and cousins were born and living in Canada. In fact my family connections in Canada go back to well before confederation, and I am related to two Fathers of Confederation.
As a child I had deep connections to Canada, spending 3 months every summer, from the age of one visiting family and spending time at the family wilderness cabin in Ontario.
I decided when I was 17 that I wanted to move to Canada, live in Canada for the rest of my life, and become a Canadian citizen if possible.
I moved to Canada at the age of 18 on a student VISA and then became a landed immigrant on my way to becoming a citizen of Canada. I subsequently found out that my parents were Canadian citizens at my birth and that I might become a Canadian Citizen by applying as an adult to be registered as a Canadian Citizen Born Abroad. Being a Canadian by birth was particularly appealing to me. The Canadian Government allowed my registration retroactively.
Both at the time of my application for landed immigrant status and discussions about becoming a Canadian citizen by birth, Canadian Immigration officials warned me that if I became a Canadian citizen by either path I would lose my American citizenship. I believed them and as I wanted to be a Canadian citizen only and no longer an American citizen, I proceeded in both instances on the path to becoming a Canadian citizen. I did not want to be a dual citizen U.S./Canada. I could not imagine owing allegiance to two nations with different laws, policies and priorities. It seemed quite possible that a conflict might occur between the two allegiances making it impossible to honour both.
There are four important issues that have bearing on my case:
1. My parents did not register my birth with the Canadian Government and as a result, I had to apply as an adult to become a Canadian Citizen at birth. The fact that I applied as an adult, demonstrates my voluntary intent to become a Canadian citizen. I was therefore acknowledged as a dual national at birth of the United States and Canada.
2. As previously mentioned, at the time of my registration as a Canadian Citizen Born Abroad I was warned by immigration officials that I would lose my United States citizenship as a consequence. I believe this warning was based on Section 350 of the 1952 United States Immigration and Nationality Act which was the law at that time. By proceeding, I clearly demonstrated my voluntary intent to lose my US citizenship.
The 1952 INA Sec. 350 stated that a person who acquired at birth the nationality of the United States and of a foreign state and who has voluntarily sought or claimed benefits of the nationality of any foreign state shall lose his United States nationality by hereafter having a continuous residence for three years in the foreign state of which he is a national by birth at any time after attaining the age of twenty-two years. Exceptions (1) and (2) do not apply to me and restrictions on expatriation Sec.351 (a) and (b) also do not apply to me.
I believe I have met all requirements of this law for loss of nationality:
Firstly, I was a dual national by birth.
Secondly, I voluntarily sought and received many benefits from Canada. For example, I received universal health care coverage, voted in a municipal and provincial election and was accepted in a post graduate program requiring Canadian citizenship.
Finally, I also met the continuous residency requirement by living in Canada for the mandatory 3 years after age 22.
3. Section 350 was repealed (Pub. L. 95-432) on Oct. 10, 1978 after my required residency in Canada for loss of citizenship was completed and thus I believe the law as originally stated applies to my case.
4. In my research of United States Laws regarding Loss of Citizenship, I have reviewed several United States Supreme Court decisions [Perez v Brownell (1958), Trop v Dulles (1958), Afroyim v Rusk (1967) and Vance v Terrazas (1980)]. Although not all aspects of these cases apply to me I found several directives important to my case:
A. The court in several decisions stressed the importance that a Loss of Nationality must be done with the assent of the citizen. As an example in Vance v Terraskas the court concluded “In the last analysis, expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct.”
B. The court also noted that a person’s intent to relinquish U.S. citizenship could be discerned not only from the person’s words but as a fair inference from proven conduct.
C. And finally, in Vance v Terraskas, the court upheld constitutionally that the standard burden of proof for evidence of loss of nationality is “clear and convincing evidence.” Proof beyond a shadow of a doubt is not required.
As such, when my Canadian Citizenship was acknowledged, my intent was to lose my United States citizenship voluntarily and I have clearly demonstrated that was my intent by my subsequent actions as listed below:
i. I have never lived in the United States since I was 17; living in Canada for the last 43 years and marrying a Canadian.
ii. I have never worked in the United States. I have only ever worked in Canada.
iii. I have never voted in a U.S. election but since being acknowledged as a Canadian citizen I have voted in all municipal, provincial and federal elections in Canada.
iv. I have never filed U.S. income tax returns but have filed annual income tax returns in Canada since 1974.
v. Once I was accepted as Canadian, I never renewed my United States passport; subsequently travelling exclusively on a Canadian passport even when entering and leaving the United States. My Canadian passport was accepted by U.S. officials thus acknowledging my Canadian only status as the U.S. law at that time required U.S. citizens travelling to and from the United States to use a U.S. passport. My passports clearly stated I was born in the United States.
vi. After acknowledgement of my Canadian citizenship, I had little connection with the United States. I visited family in the United States only a few times as my parents lived overseas for much of this time and then retired back to Canada in 1986. I also travelled to the United States for approximately 10 holidays between 1977 and 2004 (no holiday longer than 3 weeks).
vii. The last United States stamp in my passport was on Dec. 27, 2003 in Miami.
viii. I last visited the United States I believe in 2004.
ix. I never owned property in the United States.
I believe all of these actions together clearly support that my desire was to lose my United States citizenship and to live as a Canadian citizen.
5. I understand that on Feb. 6, 1994 the requirements for relinquishment of United States citizenship was changed (USC 26 section 887) such that to be valid the relinquishing act must be reported to the United States State Department but as my relinquishment occurred many years prior to 1994, I believe that I was not required to notify the State Department.
In summary, I made intentional, voluntary acts to become a Canadian citizen and lose my United States citizenship from age 18 to 25. I have acted as a Canadian citizen not a dual citizen since that time. I performed these actions in good faith and according to United States law at the time. If the law had mandated I would remain a dual citizen, I would have taken the necessary steps to renounce my United States citizenship at that time.
Cheryl’s experience at the Calgary Consulate
I first dealt with the Calgary Consullate in the Spring of 2014. They were very prompt in answering my emails and quite helpful in outlining my next steps in applying for relinquishment etc. I booked an appointment and sent in my 1st DS4079 which the consul assisstant then informed me that it likely would not be approved. In retrospect, I believe that she was correct.
At that point I kept my appointment and decided to just renounce. That did not sit well with me so I started digging without much luck until I found the Brock site. I applied for the Citizenship and Immigration file from Canada and found s.350 which seemed to completely fit my case. I ended up cancelling my appointment in June in Calgary as my file from Canada had not arrived. The consulate was very understanding and after my file arrived they made me a second appointment quite quickly.
At my appointment in Aug, the staff was pleasant but as I mentioned to you didn’t seem to understand the law i.e. adding a 4th criteria that doesn’t seem to exist and were not very helpful in helping me to understand what “benefits” of citizenship are. She tried to persuade me to renounce not relinquish as the cost was going up a lot in the near future. I can only speculate as to the reasons for this. Due to her lack of understanding of the law in this situation it certainly might have been an effort to decrease relinquishment but I do not know that for a fact at all.
The consul himself seemed too just regurgitate what the staffer had told me. It seemed clear he had not read or didn’t understand my application. He did not have any questions about my application and did not challenge me on any other aspects of my application like whether I intended to lose my citizenship at the time etc. He would not tell me what his recommendation would be because he said he had to discuss it with lawyers. It was only after the application was sent on to the State Department (3+weeks) that they told me he recommended to reject my application but would not tell me the reasons he used. I was told I could only be informed of that after the State Department makes its decision.
I assumed at the time that this is not a common law to be used in relinquishment and understand them not being informed. My problem is them recommending rejection on seemingly such a frivolous way.
@Calgary, Amen to that. It is so good to not feel alone when these crushing things happen.
@Cheryl,
I was just going by what you posted:
I read that as you saying they considered the benefit was “registering for birth abroad”. But now that you’ve quoted the entire letter, I see they didn’t actually say what the benefit was that they had otherwise accepted for an INA 350 claim. You applied for the certificate in 1977, and you voted in 1977. Both of those were too late if you believe the clearly-worded FAM that they quote in their letter is as legal as the statute itself. What other action do you think they could have chosen that happened sometime after Oct 1975 (within 3 years of Oct 1978, which would also have been too late)?
Regardless, what you need is to have sought a benefit of citizenship prior to Oct 1975. I have googled “rights and benefits of Canadian citizenship” many times over the last year or so and never turned up anything useful for an INA 350 claim other than voting and applying for a passport. (I was wrong to have asked about filing taxes – that doesn’t mean anything). Other benefits are leaving and entering Canada freely, running for office, government jobs open only to citizens, and being educated in either language and the right to pass on citizenship to your children. For example:
http://www.citizenshipsupport.ca/canadian-citizenship-test-information/canadian-citizenship-benefits/
One last observation: their second to last sentence to you almost looks like they think you turned 22 after Oct 10 1975 but you have said that you turned 22 before that. Could they have made a simple miscalculation of when you turned 22? It may be just poorly worded. If we knew what they latched on to as the benefit you received, it would probably be clear as to whether their ruling is correct or not.
@WhatAmI, Sorry. I meant that the 3 yrs would have to be after I registered because only then did I receive benefits.
I have an older link to the 1952 INA section 350 which also sounds different
http://www.scribd.com/mobile/doc/8693257
If I found the wording of the original and not the FAM might that help. This version doesn’t sound such a direct link between the benefit and the 3 years.
I’ve also looked for benefits online and couldn’t find much. I ask the consular official what might be regarded as a benefit and she nastily said that was for me to find out! Anyway I’ll have to clarify with state. Do I just mail a letter to the address on the envelope attention whoever signed it? E
@Cheryl,
The link that you gave just now is the same as the PDF that I posted for you when you asked (yesterday?), including the paragraphs highlighted in yellow. This _is_ the actual original law as it was from 1952 to 1978.
Here is the FAM:
http://www.state.gov/m/a/dir/regs/fam/
And here is the particular 3-page FAM section that I’ve been quoting (and that the DC letter also pretty much quoted) that covers former INA 350:
http://www.state.gov/documents/organization/120532.pdf
Everyone agrees that the INA 350 wording isn’t 100% clear about the 3-year period _following_ the taking of a foreign benefit. You could argue that’s why they have a Foreign Affairs Manual: to capture rulings and standards for the consuls to apply. The FAM is absolutely clear that the period follows the benefit or the turning of age 22, whichever comes later. It even says that their “Bureau of Consular Affairs (CA)” already ruled that the 3 years follows the benefit. I’m sorry to be pessimistic, but it won’t be easy to argue a new interpretation of INA 350 when they’ve already considered it, published it, and have been applying the law in this manner for who knows how many years?
@WhatAmI, OK, thanks. I still don’t really understand if they removed my student VISA and landed immigrant papers from my citizenship file, making them a “mistake”, why my health care coverage in 1973 doesn’t count as a benefit. If I wasn’t a landed immigrant then the only way I got it was because I was a citizen? Anyway, thanks. I will probably go with the registration angle but some of the wording there doesn’t leave me to optimistic either.
@Cheryl,
I had also googled “rights and benefits of landed immigrant” and found that provincial healthcare is available to all residents, not just citizens. Pages on resident status actually advise people to apply for health care as soon as they arrive in Canada. Therefore, I’m GUESSING that the DoS would not consider receiving healthcare as a benefit of citizenship for a former INA 350 claim.
Another GUESS from me: If you had your seeking of health care coverage in 1973 on your relinquishment submission, they would have seen that and already ruled that it wasn’t a citizenship benefit, or else they would have approved your claim as it was more than three years before Oct 1978. Instead, they passed on that action and chose something that you did after Oct 1975, which made it less than 3 years until the law was repealed in Oct 1978 and therefore denied your claim.
From what you’ve said, they either chose your application for Registration of Birth Abroad in 1977 or your voting in 1977 as your first claim of a citizenship benefit. After sleeping on it, my best GUESS now is that they might have decided you did not have access to citizenship benefits until you applied for the RoBA in 1977, and then the first benefit you received was voting later in 1977. Only the DoS can verify if this is what they did, or if they considered your obtaining the RoBA as the first citizenship benefit. Neither is better for your INA 350 claim. You lose either way because the 3-year clock didn’t start until 1977. It would be interesting and helpful for other Brockers to know the answer though. It’s already immensely helpful to finally have a good indication that the DoS will accept a claim of former INA 350 if the requirements are met. We had nothing to go by until you posted your letter this week.
That leaves the registration angle with INA 349. On the one hand, I agree with George that you have a unique angle in that you were documented and treated as a landed immigrant and you still would be today if you hadn’t taken affirmative action and applied for the RoBA, which definitely changed your legal citizenship status in Canada. After sleeping on it, I realized that your case maybe isn’t that unique, because the same would seem to apply to many dual citizens born in the US who were not registered at birth and returned to Canada later, and later applied for a RoBA. It is also quite similar to people who were born in the US to a Canadian mother and non-Canadian father. They couldn’t get Canadian citizen retroactive to birth until the Canadian law change in 2009 that finally recognized that a Canadian mother was and is good enough. Is your case stronger than these other people’s? George’s posts are quite convincing.
Please grab copies of George’s posts from December 3, 2014 at 2:44 pm and December 3, 2014 at 1:20 pm, if you haven’t already. It lays out a possible path for you to take with INA 349.
Here is the 7 FAM 1250 that George referred to and quoted:
http://www.state.gov/documents/organization/120544.pdf
He especially cited this:
After sleeping on it, I can’t help pointing out a couple of things. As you even said, “some of the wording there doesn’t leave me to optimistic”. The FAM section above continues with this:
There are words here that seem good and bad for your case. Point “c” says “conferring nationality _after_ birth” and “whether the person acquires the foreign nationality after birth”. You made application for the RoBA in 1977 which was certainly done after birth, but you acquired nationality _since_ birth. Point “d(1)” says “An expatriating act is not committed if a U.S. national acquires the nationality of a foreign country by automatic operation of the country’s law e.g., by being the child of a national of that country)”. One could argue that your citizenship is because of the “automatic operation” of Canadian law for exactly the example stated. Another way to state this: if your Canadian citizenship document says you became a Canadian citizen in 1973, then surely the DoS has to see an expatriating act. Your papers say you are a Canadian citizen since birth, so do you have a naturalizing act in 1973 that falls under INA 349(a)(1)?
At least one Brocker was told in an email by consular staff that applying for a RoBA didn’t count, but staff and consuls have made many statements that the DoS in DC later judges differently. As far as I have seen, we don’t have a DoS ruling about applying for a RoBA being a claim under INA 349.
On the other hand, and George’s point about the FAM section, you absolutely took affirmative action which changed your legal citizenship status.
I’m wondering if the DoS will interpret this just like INA 349 with regards to oaths to Canada taken by people who are already Canadian (eg dual) citizens. It is meaningless and changes nothing and is not an expatriating act. It’s not too far fetched for them to say the same of applying for a RoBA. From the US point of view, they could say you were already a Canadian citizen. If you ever have to file an 8854 form, I’m sure you’ll want to claim you were born a dual citizen and therefore are exempt from being a covered expat. That’s what I would do. I want it both ways but hope they don’t notice.
Having said all that, I agree with George that it is worth a shot if you can’t find an angle to appeal the former INA 350 claim rejection.
It’s time for a reminder that none of us here are legal experts, much of what is posted on IBS is guesswork, logical interpretations and wishful thinking. Much however is based on the actual experience of Brockers, which is the best you can get but your mileage may vary. For example, just this week a fellow in the UK was denied relinquishment because he renewed and used his US passport after naturalizing, even though he only renewed the passport because he was pressured, threatened and bullied by US border officials and/or airline personnel. Other Brockers have successfully argued that they were pressured into getting US passports and had their relinquishments approved. You have to weigh the opinions here with your own research, and legal advice if you seek it, and make your own decisions. The opinions here on any given point almost always vary. For example, I think the FAM is clear that the INA 3-year period must follow the taking of the benefit. The DoS obviously read and applied that and quoted it in your letter. @AnneFrank still thinks you still have a good shot at an appeal based on the unclear wording in the original statute. You have all of our opinions, and the letter from the DoS, and the original 1952 wording of the law, and the FAM section that documents the CA’s interpretation. That said, if all it costs you is writing letters or emails to the DoS, maybe there is no harm in following up on the INA 350 denial if you can put forth a reasonable argument?
Cheryl, At some point you say to yourself, “I relinquished. For some inexplicable reason you don’t agree. The hell with you. I’m done.”
@WhatAmI, thanks for all your help.
Cheryl. My comment has been improved by the mods to make it clear that when I said “the hell with you” I was referring to the dep’t of state.
Sorry about that. I see that B.C. Doc takes the same stance.
@Duke of Devon,
Oh, It only occurred to me that your comment was directed to the DoS! The addition of the quotation marks is good though.
With all the talk the other day about “thereafter” and “hereafter”, all I could think of was telling the US to take a flying leap into the “everafter”.
I still have no Plan B if my relinquishment claim is denied, but for now your stance is the idea that keeps coming to the surface in my thoughts.
Just to complete this thread. I have finally received a back dated CLN based on S.349 (a) (1) after a 4 year battle with the DOS.
Many thanks to all the Brockers who helped me along the way with special thanks to @Petros, @WhatAmI, @George and Pacifica777.
I posted 8 comments on the Relinquishment Thread for any interested in the details.
Thanks to all
I should have specified that my Registration of Birth Abriad has now been accepted by the DOS as an act of Naturalization and as I intended the loss of my U.S. citizenship, it was also an act of relinquishment.
Wow, that’s fabulous news! Congratulations!!!
Yep. Pretty good. I saw your comment about your sister on Stephen Kidh’s New post and wondered if the decision in my case might help her. Don’t know the specifics but maybe you should have a look. My story is on the Remuncoation and Relinquishment thread. Pacifica has also placed it on the sidebar under How To Renounce.
I don’t think it would help her. My mother did the Canadian registration of birth abroad for us when we entered Canada at ages 9 and 12.
In case it’s of interest to anybody, my sister’s claim to relinquishment by virtue of government employment was denied because when she worked for Canada Post, she was a contractor not an employee.