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.
@Cheryl,
My personal history is very similar to yours, except my birth abroad was registered when I moved to Canada as a child, and I didn’t turn 25 until shortly after INA 350 was repealed. I see nothing in your story to make me think you will be denied based on INA 350, other than we don’t know if the lawyers in Washington DC do in fact _ever_ accept INA 350 now. The FAM is not clear other than inviting people to try, which I hope is a good sign.
The FAM does say that people who were stripped of USC by INA 350 prior to 1978 can get it back simply by applying for a passport. It instructs the passport office to simply delete the INA 350 reference and issue the passport. This shows, as always, that all the laws and instructions are geared towards people getting and keeping USC, and there is little understanding or appreciation about people who _want_ to lose it.
I’m very hopeful for your case, and mine as well. Mine includes other aspects and claims such as government employment, so our case handling and judgements will be somewhat different.
@WhatAmI. Thanks for your support.
@Cheryl
Thank you so much for sharing your story, I have not been aware of INA 1952 350 and it will be helpful to have another set of facts available when coming in contact with people in similar situations at our Info Sessions, etc.
I read up on the links you’ve provided and am reminded of what it was like on Brock in the early days.Back then, most of the posts were information-oriented and authors as well as those commenting, basically created a “knowledge bank” regarding a lot of what we needed to know to protect ourselves.
This is not to say that being supportive of people in their OMG moments did not exist but it did not overshadow the work that was being done in terms of researching what was involved, etc. There was an emphasis on making sure facts were correct before giving “advice.” There are so many variables involved in each situation that need to be clarified. Imagine going to a lawyer or accountant who prepares a pre-interview survey that asks the relevant questions before taking on a client.
Recently, someone made a comment on a different thread that criticized those who provided a lot of detail as being fear-mongerers (or something to that effect). I was really surprised to realize that person seemed not to understand that covering every detail was done so that the potential renunciant or compliance-seeking individual would not have any surprises during the process. A lot of what I see now is rather off-hand advice to do nothing. This is not in keeping with the original aims of Brock and I know there are other old-timers that also are dismayed by this development.
I definitely miss the early days and your post reminds me of the many areas we still need to get a grip on (particularly Treaty issues and the legal issues regarding the legitimacy of the IGAs etc).
Agreed. Reading the specific details of many situations regarding citizenship helped me weed out what applied to me, and what did not. I think the details of each invidual’s situation, and relevant law, is very educational, and extremely helpful.
@Tricia, thanks for you comment. I don’t have time to follow all the comments, but I do get emails from various threads. When I saw Cheryl’s case, I thought it needed its own post in order to add to our existing knowledge base in its own thread, to facilitate searches.
Thanks Trisha and all. Part of me sometimes wants to run away and hide but that’s just not my way. I hope this does help someone else. Lots here at Brock have helped me not just with information but real understanding and support.
This is the law many of our parents were told about when leaving the US. It led us to believe that we lost our citizenship years ago. We were told we had to “claim” it after the age of 22. We did not know that the US changed the law and because they did not tell us, we lost our chance to renounce at a time when there was no taxes to be paid and the renouncement would have been simple.
Thanks, Cheryl, for your comprehensive information — and to Petros for using that to make a post. It will be part of the extensive resources here that people can access to help them decide what they must do for themselves and their families. That is the reason I’m here too — I don’t want any others to make the same stupid mistakes that I did so early on (well before IsaacBrockSociety.ca existed). Everyone needs to weigh as much information as they can and to know their own level of risk tolerance to determine how they will go forward. There is much here in the experiences of others and such good analysis as you’ve provided for your own case, Cheryl. That is significant.
It just makes no sense to me that if one became another nationality and the law at the time said that the US nationality was lost in the process- that it should be reinstated without anybody knowing about it. How can one be “guilty” of not knowing this when it was the law of the day? Because IF one had known that citizenship was reinstated, one would have had a chance back then to do something about it. It just makes ZERO sense, except for the fact that America needs money, and as Goebbels said “Wer Jude ist
bestimme ich”
Here’s an interesting video –
http://www.youtube.com/watch?v=gztmgwOIU7M
Get into legal technical language but makes some interesting points.
However it seems to be too good to be true?
@Polly “Wer Amerikaner ist, bestimme ich” says the US government.
We have had a call from the bank. We will be meeting with our financial advisor. I truly believe that I relinquished in 1994However, My husband does not want me to apply for a relinquishment, but rather get compliant and apply for a CLN. “Get out of Dodge” in his words. It is causing problems between us. I also have the issue of being a signing authority on my employer’s accounts. He is a lawyer and is now speaking with the law society.
The problem here is that the U.S. Constitution supersedes conflicting U.S. statutes, and when you rely on a U.S. statute, SCOTUS then strikes down the statute and says the statute never was a law because it was superseded or ultra vires. This leaves people to guess at their peril what the law might be or how it will later be upheld, since you do not know how the court will rule. Such court rulings, unlike changes to the statutes themselves, can apply retroactively or ex post facto since it is the U.S. Constitution, already in force before your events, that is being applied. The other problem, of course, is that persons on Canadian soil even have to worry about how U.S.A. law changes.
A reading of the Citizenship Clause in the Fourteenth Amendment does not allow for any kind of relinquishment or renunciation, where it says: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. It is possible somebody will prevail on the court that the key word there is the first word.
Citizenship is not the problem. The problem is the extraterritorial application of FBAR and tax laws.
@Ann #! Remember that if you get your CLN that may not be the end of the story.
http://www.irs.gov/Individuals/International-Taxpayers/Expatriation-Tax
As for paying USA taxes, just say NO.
Re. “A lot of what I see now is rather off hand advice to do nothing”
The adjective offhand describes a remark or comment that is made without previous thought or preparation.
Au contraire, the advice offered is well thought out and often the best available advice in the circumstances.
The best advice ever is what my sister, an Anchorage lawyer told me. She said the cogs of US federal government are very slow. The implication: never be in a hurry to do anything.
Of course, that advice may not have served those who wanted to renounce at $450. But it certainly would helped those who, because of the panic caused by the Canadian media sources in 2011, rushed into the OVDI–thanks to such esteemed writers like Jaimie (“precious”) Golombek and Barrie McKenna.
I rejected outright the OVDI, and my total FBAR costs to this point are: ZERO.
Is it SOP for the consulate to take custody of your passport when you go for your relinquishment interview? They said the application will take months to process. So I still am an us citizen until they either confirm the relinquishment or I renounce but I don’t have a passport
Yes, they take the passport, and they take their time sending you the CLN. I waited a full year.
You can probably go anywhere on the world with your other passport. But be careful about going to the US. They may reject you and that could cost you money.
@ murdo douglas
Please see my reply on the Relinquishment and Renunciation Data thread.
@Polly, I agree with you. It is grisly unfair. I came to all of this late but I assume individuals have tried to relinquish in the past unsuccessfuly for some of these law changes. My understanding of sec 350 is that it was never seemed unconstitutional other then you had to demonstrate intent to lose your citizenship. It was repealed and not made retroactive. We’ll have to wait and see.
@ Ann#1 I understand the issues with your husband, I have been dealing with the same thing. We also get the opinions of other family members, it is very hard. My husband is Canadian he doesn’t want to be involved in any of this. Currently I am avoiding contact with our investment advisor, I worry about the questions that might be asked.
Start looking into the problems of renouncing and/or becoming tax compliant and you might have second thoughts . As you have stated there are issues with reporting your employer accounts. Is your husband okay with you reporting information on your joint accounts? If you have RRSPs, RESPs, or a TFSA, these will increase your accounting costs and US taxes. Recent changes to the reporting of RRSPs have people questioning whether the Streamlined compliance method will protect your RRSPs. If you have invested in local country mutual funds (anything not US), you are punished for holding them, and if you have held them for a long period of time you will lose most of the income from them due to high taxes and interest charges. Proceeds from the sale of your personal home might also incur US taxes. A relinquishment in 1994 would avoid all of these issues.
@Cheryl
The following link mentions INA 350 on Page 15. It says this of the Oct 1978 bill that repealed INA 301 (which was similar, sort of):
The following story directly indicates that obtaining and using a foreign passport whilst knowing of your US citizenship and potential resulting loss of USC is a foreign benefit under INA 350:
http://www.law.fsu.edu/library/collection/publishedopinions/v06/6_BAR_%28D%29_25_%281982%29.pdf
This one states the reason for repealing 350 and the aforementioned 301:
http://www.richw.org/dualcit/law.html#1978
Damn, if only they had kept INA 350 and made it voluntary. That would get hundreds of thousands of people off the hook, maybe even millions. Well, you and me, at least.
@WhatAmI
So the case was overturned on appeal because he demonstrated benefit of his other nationality but did not know he was American at the time? That would not seem to apply to me. Did I misread it.
Also because the repeal happened after I met the conditions of 350; it was never deemed unconstitutional, and the repeal was not retroactive it should apply to me but I guess not you?
@WhatAmI
Great finds and fantastic research! Thanks so much!
@Cheryl
He originally lost his USC due to INA 350 because:
This was my point, in that I think this answers our question as to what is considered a defined foreign benefit under INA 350.
The CLN was later cancelled because, I think, as you say, he didn’t actually use the passport during the applicable time period and/or he didn’t know he was a US citizen. This doesn’t apply to you (or me).