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.
When Peter asked me to put my case up as a thread I thought it was probably a waste of time as so few people likely would be in my position but look and see the cases that are coming forward to get good solid information and now with George new information that might help others even if 350 doesn’t apply. It is truly awesome. Thank you to all at Brock.
@george
Thank you for your detailed response. Yes I intend to stick by my core belief that I am not a US citizen! While it is quite obvious that I did not know the intricacies of US citizenship law back in 1999 when I first took that job, I do not think it would be impossible for me to honestly claim that my intention at the time was to loose my USC because everything I have done affirms that. I have never attempted to claim it. So I guess I need to come up with some carefully crafted answers to some possible questions. Like I said before, if I get someone reasonable, they would see I have a possible out and deserve the opportunity to take it. Then they wouldn’t push the silly questions about knowing the details of the law at the time.
I am thinking of enlisting the help of a lawyer to get it right the first time. Anyone able to recommend a specialist in US citizenship law in the Ottawa area?
And yes I will donate to the lawsuit, it may be my only hope. I’ve been wondering about the projected timeline for that to make it to court?
@WhatAmI, many moons ago I think Pacifica provided some clarity that the State Department needed to see that your position with respect to the foreign country had in fact changed because of your action. It was then that I had the fortuitous chance of finding 7 FAM 1250 and guess what stuck out in my mind.
On the other matter I think you are beating a dead horse……sorry to rain on your parade.
Here is why. Citizenship by birth abroad is a matter of law that does not require any further action. A US Child is NOT registered as a citizen. Rather you are getting whats called a Consular Report of Birth Abroad which is simply an english version of a local birth certificate. In fact, you do not even need to get a CRBA for a child you can simply get them a passport directly without a CRBA
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The child’s parents may choose to apply for a U.S. passport for the child at the same time that they apply for a CRBA. Parents may also choose to apply only for a U.S. passport for the child.
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Your logic is correct except that the child is never registered.
The question on weither citizenship by registration qualifies as expatriating is simple. Must I register before getting a passport? If registration is required before getting a passport then its expatriating.
Here is an easy example.
A person who has an Irish parent is Irish by descent and can get an Irish passport on application.
A person who has an Irish Grandparent can not get an Irish passport until they register with Irish Government and then as registered Irish by descent they may then get an Irish passport.
Registration as Irish by the grandchild of an Irish Citizen is an expatriating event. Registration can also be done in the USA and whilst in the USA it is not expatriating. But once said person takes up residence outside the USA it is expatriating.
@Silverbirch, start with John Richardson. He is THE guy for a matter like this.
But put together your file first.
http://citizenshipsolutions.ca/
@SilverBirch. One more thing……..
A specialist lawyer is far more important than a local lawyer.
You want someone in Canada NOT in the United States.
This is not something where you necessarily need to sit down at the oak table to discuss. You can phone, skype and snail mail documents. Oak table confabs are things of the past, hey people are now skyping into their doctors. 😉
I think you will need to retain John first before discussing so that you can have privileged client communications. Make sure your conversation is privileged before delving into details and verify how your lawyer as in John wants documents sent.
@SilverBirch. Re: MD Management, I think you should be able to tell them you relinquished giving the date and that you are applying for a CLN. That should hold your reporting to CRA until you get straightened out.
@Cheryl,
You registered as a Canadian in Feb 1977, and your 3 years after the age of 22 for INA 350 was about a year later. It probably would have been better if both of these were stated as affirmative expatriating acts on your part in your submission to them. But, I think in your interview you did at least state or have written down that you made that application for Canadian citizenship since birth in 1977? If the DC lawyers are on the ball, they should notice that and see that you performed 2 acts. If they baulk at INA 350 they could chose the 1977 action instead and grant you that. If you discussed the 1977 registration in your interview, it may be quite visible in your case file. All guesswork, of course, but if they miss the 1977 action you could try to continue the case. I don’t think you need to start with a new appointment. See Benedict Arnold Be Me in the Consulate directory for Calgary. With a lawyer, he had some back-and-forth communication with Calgary and Washington DC after his initial claim of relinquishment was denied and was ultimately successful.
There is a scenario that people have to be wary of. It’s happened at least twice in Calgary:
Citizen: I performed a blahblahblah act of expatriation when I was 20 and believed I gave up my USC at that time and have lived and acted only as a Canadian for 45 years.
Consul: Sorry, that doesn’t doesn’t count because blahblahblah.
Citizen: Well, I took a government job when I was 30 knowing I was relinquishing my USC.
Consul: How can you say that when you just said you lived your whole live since age 20 believing you were no longer a USC???
@WhatAmI. Thanks, if they don’t accept one way or the other then I will have a lawyer help me further. I perhaps should have done that in the first place…it seemed so obvious that I didn’t give it a second thought.
@SilverBirch, “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.”
Its not a Medical Corporation its a Foreign Corporation. Think of the feeling a deer might have at the other end of a scope on a 30.06.
Huge expense? No prescription will be able to control your new found hypertension. Take your best guess and multiply by four. That path will require you to find your trusted colleague to put you on anti-depressants and anti-anxiety meds immediately, I am stone cold serious on that.
Yes, call John R. He is not Moses, he is not Houdini but he knows the law.
@Cheryl, ” I think you should be able to tell them you relinquished giving the date and that you are applying for a CLN. That should hold your reporting to CRA until you get straightened out.”
First, if they are asking then Silverbirch probably needs a new FI.
Second, Silverbirch should be able to simply say; “I relinquished my US Citizenship under 8 US Code_______on ___ _______ 1999, when I accepted government employment with Canada. Here is a sworn statement to that affect from my lawyer.”
IF they ask for a CLN after you provide a reasonable explanation it is ultrvires.
@George
Thanks for clearing that up. I’ve seen it discussed many times, and many claiming that they or their children born in Canada aren’t USCs because they didn’t register them, but I missed it being resolved. I’ll file it in my brain that it’s true that these poor souls are in fact USCs whether they know it or like it or not.
@ george
October 29, 2014 at 9:34 am
@Cheryl, make sure you never lose that old Canadian Passport with the US entry stamp in it. In your mind that should be prima facia evidence you are not a US Citizen having entered on a non US Passport.
i just dug out my old expired canadian passport…..i remember the day like yesterday when we were joking around with the homeland security lady about stamping our passports…..and low and behold there is the stamp from homeland securtiy attesting to the fact that we did cross the border on a canadian passport.
@all…..how much credence does this incident lend do you think if it comes to the day i end up in the consulate attempting to prove i had relinquished? i am still not 100% convinced that “outing” myself to the gov’t is the best plan of action considering i will never be crossing the border into the “homeland”
@mettlemen, the days of doing nothing were all pre-FATCA (2010). In the old days it was “Hey I relinquished when I became a ________, here is my passport.” Done and dusted……..
Today, you must do some documenting and build a file that proves you relinquished. That includes all the relinquishing documents, maybe a sworn oath before a lawyer in an affadavit, maybe a lawyers legal opinion and maybe even a CLN.
You must document but the question as to how much documenting is up to you and dependent on local law and practice.
Silver birch, ditto-ing George on contacting John Richardson if you want a lawyer. He’s “one of us”, not a part of the vast “compliance complex”.
@ george……thank you for being the beacon of light in this united states of america darkness 🙂
@George, thanks very much for the information! And I am getting a file together, but I’m confused!!
@WhatamI said earlier that INA 349 was changed in 1986. But I found this on http://www.state.gov / 214255 pdf and it says it was updated in 2013:
b. Naturalization as an expatriating act:
(2) Section 401(a) of the Nationality Act of 1940 (54 Statutes at Large 1168-
1169; old 8 U.S.C. 801) provided:
“A person who is a national of the United States, whether by birth
or naturalization, shall lose his nationality by:
(a) Obtaining naturalization in a foreign state, either upon his own
application or through the naturalization of a parent having legal
custody of such person: Provided, however, that nationality shall
not be lost as the result of the naturalization of a parent unless and
until the child shall have attained the age of twenty-three years
without acquiring permanent residence in the United States.
Provided further, that a person who has acquired foreign
nationality through the naturalization of his parent or parents, and
who at the same time is a citizen of the United States, shall, if
abroad and he has not heretofore expatriated himself as an
American citizen by his own voluntary act, be permitted within two
years from the effective date of this Act to return to the United
States and take up permanent residence therein, and it shall be
thereafter deemed that he has elected to be an American citizen.
Failure on the part of such person to so return and take up
permanent residence in the United States during such period shall
be deemed to be a determination on the part of such person to
discontinue his status as an American citizen, and such person shall
be forever estopped by such failure from thereafter claiming such
American citizenship.”
I always though I had lost citizenship because I did nothing! I intended to loose the damn citizenship!
I did however apply for proof of my Canadian citizenship. And as per Cheryl’s post above:
“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.” I have obviously voluntarily given up any rights to the curse.
And George – ditto what mettleman said. : )
@Eliza
What you’ve found and quoted is the original text from the law as it was in 1940. It was changed in 1986. It’s marked (2). (3) is the text from 1907, and (1) is the text as it is today.
Immigration officers at US entry points should not be considered as US government officials. The stamps they put in your passport are proof of nothing. Any comments they may have regarding anyone’s US citizenship or lack thereof is solely their own personal comments and have no legal validity. These staff are just a step above tollbooth collectors, traffic cops, and meter maids. Whatever they do or say will neither help nor damn anyone’s legal position re US citizenship. An entry stamp in a Canadian or other foreign passport has absolutely no value as proof of absence of US citizenship.
I still contend that a child born outside of the US that is never registered, never receives a passport or SSN, does not exist in the eyes of the US courts until/unless the child or parents choose to make the child exist. The automatic US citizenship is designed to enable the child to claim that citizenship at any time without other obstruction. If the claim is never made in any way, then it remains dormant forever. I would challenge anyone born outside the US to US citizen parents to try to apply for a US passport if the birth was never registered and see how difficult it is after 40, 50, or 60 years have passed. Unregistered is essentially the same and nonexistent.
@Dash1729
I disagree. You can live in the US and not be a homelander. We come across them all the time, thinking individuals who realize that the US is not necessarily the shining beacon of freedom and liberty and the best nation on earth. They use phrases like “don’t let the door hit you on the way out”, “pay your fair share” and “just go and denounce yourselves already”, to name just a few.
@Silverbirch
I too once hope that being dual at birth exempted me from US tax filing obligations, but was quickly corrected by my lawyer.
Phil Hodgen provides some more information here on what your tax filing obligations are as a dual at birth:
http://hodgen.com/dual-citizen-exit-tax/
@TokyoRose, “I still contend that a child born outside of the US that is never registered”
US Citizen children are not registered as citizens, the phrase registering a child as a US Citizen is a badly used misonomer. Rather you are getting whats called a Consular Report of Birth Abroad which is simply an english version of a local birth certificate. In fact, you do not even need to get a CRBA for a child you can simply get them a passport directly without a CRBA, from States own webpages… Most of the people I know, do not bother to get a CRBA and simply get a US Passport for their kids.
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The child’s parents may choose to apply for a U.S. passport for the child at the same time that they apply for a CRBA. Parents may also choose to apply only for a U.S. passport for the child.
– – – – – –
UNLIKE an adult registration in many Commonwealth countries, US Citizenship is not something that is claimed as its automatic under law.
Just as you automatically lose US Citizenship when you perform an expatriating act with voluntary intent, you also automatically acquire under law US Citizenship at birth. Hence why under law for nationality purposes a CLN is NOT a requirement under law to lose citizenship.
I know of at least a handful of persons born abroad who received their US Passports much later in adult life with rather little difficulty. They were born in english speaking countries so a Consular Report of Birth was never really an issue with them.
Now I would agree that such a person could remain unknown to the USG as a non-citizen the fact remains under US law that they are US Citizens.
@TokyoRose, “The stamps they put in your passport are proof of nothing.”
They are solid proof of yourself holding yourself out as NOT American. Entering the US on a non-US Passport, presenting yourself to ICE as a non-US Citizen and then getting your non-US Passport stamped is superb evidence that you do not hold yourself out to be a US Citizen and the icing on the cake is ICE admits you as a non-US Citizen.
Make sure u don’t speak to an accountant or any so called tax professionals about your situation at all… that can be used against u… if u retain an attorney… they will refer u to an accountant or expert to use…. then u are covered by attorney/client priviledge… that is very important to remember for any legal issue… retain an attorney then they will refer u to someone… I also recommend Mr John Richardson because he understands the situation & he has gone out of his way to do what he can to help… while all others have been sharks… hearing the ker-ching… ker-ching of taking as much of your funds as they can & not helping or in some cases… cleaning out all your funds…
@Eliza, your situation does appear to be different from the main blog post. So you have never had a US Passport unlike Cheryl. But as you said earlier you have been living decades in Canada with no proof that you are a Canadian Citizen, but you have always held yourself out as a Canadian Citizen and no one questioned that. If you were not a Canadian Citizen or a landed immigrant from the US you would have never been able to get a government job in BC.
So in the last couple years you now have a Canadian Passport and a Canadian Citizenship certificate.
Cheryl has an argument that she made an affirmative election that changed her status in Canada FROM being a landed immigrant on a US Passport to a Canadian Citizen on a Canadian Passport. That is what her affirmative action means and that ties into 7 FAM 1250. She went from “I am not Canadian, I am American registering to become Canadian.” All her documnetation shows that occurring, her status with the Government of Canada changed based on her voluntary application, suddenly she was something other than a landed immigrant.
With yourself you do not have that clear change of status. I think you clearly considered yourself Canadian every moment of your life!! Your status did not change with yourself nor your government.
Government employment is probably your best option for documenting your relinquishment. Build the most solid file you can. Spending a thousand dollars on a legal opinion would probably be a good idea regardless if you want a CLN.
@ Silver Birch,
If you’re considering the option of applying for a CLN, this post, Relinquishment of US Citizenship by Persons Born Dual or Who Naturalised in a Foreign Country as a Minor may be of interest as it has links to Consulate Directory Reports by Brockers who have relinquished under s. 349(a)(4), government employment.
BTW, I’m also from Ottawa. If you would like to get in touch with me and/or my friend who relinquished under s. (4) at Ottawa this year, I’m at pacifica@isaacbrocksociety.ca
@Silver Birch
I pulled my money out of MD Management years ago (I’m a doc in western Canada). If you think you told your “financial advisor” your place of birth or mentioned that you might have dual citizenship in the past, I would strongly consider moving your funds to an institution where they won’t have this information. MD Management is quite clear that if knows you are a USC, it will “out” you– please see my recent post over at “What are the BIg Banks asking.”
I think both George and Duke of Devon have offered you some sage advice. As you have lived in Canada since 1968 and the neither the US govt or IRS have “reached out” to you, I wouldn’t be in a hurry to do anything. I think it’s reasonable to consider yourself an undocumented “relinquisher” (as of the date you became an employee of the Ontario Cancer Agency) and carry on as a Canadian citizen. Going into the US consulate and requesting documentation of your relinquishment with a CLN means you are playing by the US State Department’s rules. The right to ex-patriate belongs to you not the State Department. By “asking” (with appointments in Ontario booking into summer 2015, so likely no decision before 2016), you risk “no” for an answer with the expense being time away from work and patients plus travel.
Regards,
BC_Doc