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.
@ Ann #1
Please do not do this. Even for something as simple as my SIN# or CDN T-5’s etc, I have been advised never to provide such information to the IRS, Never, ever, ever! Please let us see if we cannot find a different opinion on this. Many lawyers are not familiar with this situation and I would not initially trust an opinion like that one.The IRS simply has no right to that information.
You are stuck in a hard place. Relinquishment should be the route for you. I am not sure I understand why that would be any longer than renouncing. Renouncing is likely not right for you and the problem of entering it is that more problems are likely to ensue. That makes me think of the many people who entered OVDI who did not belong there and all the hell they went through.
Your employer sounds like a gem. I am glad you are getting support and know you are secure in your job.
I also had marital issues once I decided to renounce. Hardly the stuff of public conversation. You are always welcome to contact me privately if you would like. nobledreamer16 at gmail dot com. No matter what, you WILL get through this. It does eventually end.
@ Ann#1 I totally understand your feeling of being “physically sick”. I have felt the same way. I hate having this hanging over my head and that of my siblings. My husband and I have also been married a long time, it is a strain on our marriage. It sounds like you have not passed on the US citizenship to your children. I was so relieved that my children are not “infected”. I agree with WhatAmI, your case looks good for relinquishment. Those of us born dual have a hard time finding ways out of this mess, it would have been much easier if we could have acquired our Canadian citizenship as adults.
@Cheryl,
Sorry to bring this up, but, …
Are your children US citizens, or do they have claim to citizenship? Since you left the US at the age of 18, it looks like children born after November 14, 1986 would have USC claims, but not children born before that date. The question that always comes up is if such children are automatically USC, or only if they make a claim to it? I’ve never been sure of the answer. I didn’t live in the US long enough for it to apply to my children at all. That makes me (us?) both a 2nd-class Canadian and a 2nd-class American.
@Ann#1, let me chime in for a moment and my friend the honourable Duke of Devon will likely concur.
1.) You are NOT a US Citizen, full stop.
2.) You voluntarily and intentionally relinquished in 1994, full stop.
3.) You ARE NOT required to get a CLN from a FOREIGN GOVERNMENT, full stop.
You do not need to do ANYTHING, nichts, nada, nil.
If you want to do something for the sake of doing something, may I suggest that you find a competent lawyer who knows US Citizenship laws inside and out, like John Richardson.
Retain said lawyer to review your case and provide a legal opinion. That will cost a couple thousand dollars. Said letter WILL state you are not a US Citizen and you lost your US Citizenship in 1994.
Then, have your employer prepare a statutory affadavit and swear before someone at your firm that you are not a US Citizen and that you relinquished in 1994 by doing X.
You are then done………hubby should be happy and you have saved yourself and likely your employer tremendous grief.
Should you decide to enter the US system, you are opening up your employers accounts for audit for six years!!! You must assume the FOREIGN GOVERNMENT will do the absolute worst thing possible.
Having laid this on the table, who concurs who disagrees?
George, Ann#1 No surprise; I agree with George 100%.
@George. Ann May or May not be done with that approach. TD website says they require CLN. TD customer service has reinforced the information on the website.
I am terminating my 33 year relationship with TD before they ask where I was born. My new credit union has made it clear they do not care where I was born–unlike TD and unlike my previous credit union where I was a member for 14 years.
@Ann#1
I completely agree with @George and @Duke of Devon.
I recall discussing a situation a little while back that was either with you or a very similar situation. My opinion is that it sets a really dangerous precedent to be jumping through hoops as dictated by Uncle Sam. As soon as one accepts the jurisdiction of the US on Canadian soil, there are unfortunately no limits as to what might happen. The US can just change the rules at any time and there is no protection–and the US has already been known to change its rules arbitrarily and unpredictably. Even someone with a CLN would not be protected if the US changed its rules. What would prevent the US from deciding tomorrow that–for example–even if you have a CLN you are still a US person if your taxes are under audit? As soon as you accept US jurisdiction the US can change the rules on you at any time.
@Blaze, “TD website says they require CLN.”
Then they are clearly acting ultravires and outside Canadian Law. Unfortunately those that have a US POB, regardless of CLN status have to make decisions with what FI they will do business with. It is clearly discrimination and I pray for the success of ADCS in Canada.
And yes, I think you are being extremely prudent in terminating your business with TD.
An elderly couple I know who relinquished their USC based on naturalizing in the 70’s received their CLNs earlier this year received copies of the 8854 form in the envelopes with their CLNs!
Now I see something new I’ve never seen before.
@Tom Alciere gave this link:
http://www.irs.gov/Individuals/International-Taxpayers/Expatriation-Tax
It has a section entitled “Expatriation on or before June 3, 2004” !!! This web page was “Last Reviewed or Updated: 28-Jun-2014”. Is this section new?
Note that it specifically says “U.S. citizens who have renounced their citizenship and long-term residents who have ended their US residency for tax purposes”. It seems to me that a person living abroad who _relinquished_ under INA 349(a) (1) by naturalizing in a foreign state decades ago has neither renounced nor ended long-term residency. Agreed?
The draft version of the 2014 Form 8854 has been available on-line since June/July but does not mention “before 2004”.
@Dash1729, thank you for the useful addition to the debate. I have come to the personal conclusion that because a CLN is not required for the termination of Citizenship under 8 US Code which governs nationality, that having a CLN may cause more harm in the end.
Why do I say this? I do not trust foreign governments!!!
As you said, the USG can change the rules at any time and the Supreme Court can rewrite law retroactive!!
Forget about up being redeclared a US Person, I can easily envision a new law being written or existing law being undone by the Courts that will make many of us US Citizens all over again!!
Further you are fully correct that accepting the jurisdiction of a foreign government on your own countries soil opens you up to everything and then some.
The whole problem is that homelanders, the Courts and the USG consider US Citizenship to be so precious and extremely valuable. They think they are doing everyone a favor for making a USC and ensuring that you do not lose your valuable USC even if they have to protect you from yourself!!! Its a patholgical way of thinking and thats why there is little clarity from them.
Nothing is safe.
People have always mentioned the fear that applying for a CLN for past relinquishments makes you known to the US Feds and probably the IRS. This always seemed risky, especially if the claim is denied. People are now fearful even if the CLN is approved. This is new. I don’t recall this opinion a year or two ago.
Of course, stepping up to become compliant is an order of magnitude worse.
@George made interesting remarks about getting various sworn and official documents from Canadian sources attesting one is not a USC. You might need this for 2 reasons: certainly if your FI comes asking questions, and maybe if you want to enter the US.
I think it’s an easy guess that the US border people would not be impressed with such documents. IBSers have been told “You’re an American until _we_ say you’re not”. In their minds, and probably according to their laws, no foreign official can do anything to your USC. Only the US can.
Using these documents in lieu of a CLN? It’s an easy guess that some FIs will accept them, but others won’t.
@pacifica777
I’m sure I had written Vancouver, but that was before the cat walked across my keyboard! Yes, Vancouver.
@ WhatAmI,
Did they use Vancouver? Vancouver’s been putting that in the CLN package since we started tracking in 2012, but so far I hadn’t heard of any others doing so.
That’s okay WhatAmi, about your cat helping out on the keyboard — our comments are out of sync because I accidentally deleted mine and had to repost it (and my cat’s not even in the room 🙂
I was curious about that. So, it seems to be a Vancouver “thing,” as far as we can tell anyway.
Is TD actually asking people where they were born? The CRA guidelines (or whatever they are) don’t require this, and I’d have thought that question would be avoided by financial institutions as it has combustible properties.
By notifying within one year of expatriation do they mean the date the CLN was approved or the remote date of relinquishment or renunciation. This whole thing is getting more bizarre by the minute.
WhatAmI and Cheryl.. There has been long and detailed discussion about this. It is summarized under the links to the right “did you relinquish before Feb 1995” and “for those who expatriated before June 2004”. The gist of the discussion is that there is no need to file ANYTHING for those who beat the 2004 deadline. Cheryl, the important date for purposes of this discussion is the remote one.
So why do they even have that section “before 2004” in there??? It seems ridiculous.
They don’t. Form 8854 makes no mention of before June 4 2004. That’s because the rules were completely different then and have been superseded.
OK thanks. I’m not sure what the enclosure with the CLN was about then but that’s OK.
Everyone seems very knowledgeable. I’m wondering if you will all give me your opinions on my specific case?
Born, 1968 in US (unfortunately) to Canadian parents studying in the states. Registered at birth as a Canadian. Returned to Canada spring of 1969. Never lived in the US again. No social security number or passport. Erroneously believed had to claim US citizenship by age 21 or forfeit it. Never claimed any right to it, but informed by border agents in 2008 or so that I was still a citizen. Work as a medical doctor, technically for a branch of the government since 1999. Oh yes and before all this blew up, incorporated my practise, so own a medical corporation. There is no way to become compliant without huge expense. Meanwhile have four kids to put through university! Went all the way to Toronto in September to claim a prior relinquishment but they wouldn’t hear me out because I had apparently booked the wrong kind of appointment. Two people beside me had done the same! Feel like it might all be a waste of time anyway since my claim of having worked for the government is tenuous. Wondering about the suggestion of getting something written up by a lawyer saying I had committed a relinquishing act and forfeit citizenship. Really want to say I never was one anyway. What gives them the right anyway? Oh and last but not least our financial advisor (MD management) has asked the dreaded question and sent follow up paperwork which we have so far ignored.
Really unsure of best course of action. Been reading here lots. Thanks all.
Oh yes, I wrote to the minister of citizenship yesterday asking for help getting myself declared only Canadian to satisfy my financial advisor. I do believe the Canadian authorities should be putting a stop to this ridiculousness. After all it comes out of the Canadian coffer. We will all be dependent on the Canadian social system if the IRS is allowed to exact the penalties they threaten to. Is the dominant nationality law any help in this? I’m grasping at straws…
You were informed 5 years ago by border agents. I’ve found that they often do this because they assume they’re doing you a favour rather than in a threatening manner.
There is no good answer for you. With an incorporated practice , the profits of the corp. flow through to the owner under US law ( there is no deferral) so there would be tax owing with penalties and so on. Never mind PFICs RRSPs RESPs etc.
I have been roundly criticized for suggesting doing nothing so I won’t suggest that. You could renounce and then do nothing more. You would then be a ‘covered expat’. I have no idea whether or not you could tolerate that. You have no good options – only less bad ones. It is not a moral choice -it is a business one. What is best for you and your family?
@Silver
Tell us more about the gov’t employment.
P.s. Don’t discuss this with M.D. mgmt. any conversation you have with them isn’t privileged. The ministry of citizenship won’t help you. It would set a precedent. The Can. Gov’t is already in bed with the US. They have however said they won’t collect taxes for the US.