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.
SilverBirch. MDs process doesn’t add up. According to the agreement, for preexisting accounts less than 1 million, they were only obliged to do an ‘electronic search’ for US ‘indicia’ . Presumably at the time you opened your account they didn’t have a data point for birth place. RRSPs shouldn’t count.
@dukeof Devon. It was the corporate account that triggered the place of birth question. We were attempting to move our accounts into MD private trust but the form halted the process since we realized opening the new account was triggering a line of questioning we didn’t like. Unfortunately they decided to send us the forms anyway. Really all we can do is prepare our statement re why we are not US persons and hope MD accepts it. It sounds like they may even report us if we close the account! I feel like the Jews in Germany must have felt like, trying to squirrel away my assets from corrupt authorities. This is an upside down world! But I am trying to hold onto the idea that it will all turn out alright in the end. The whole world is NOT going to put up with it when the IRS starts collecting, on citizens of other countries, without any services in return.
Silver Birch said:
“I assume if there is no longer an account, they have no reporting requirements.”
The IGA says:
“2 (a)(4) the account balance or value (including, in the case of a Cash Value
Insurance Contract or Annuity Contract, the Cash Value or surrender
value) as of the end of the relevant calendar year or other appropriate
reporting period or, if the account was closed during such year,
immediately before closure; ”
I suppose the above could pertain to some future time when an account that has been reporting every year, is then closed. The rules for reporting an account, now, since reporting is just ramping on, could be different?
I found this is the CRA Guidance:
This quote reffers to 3.47 – 6 on page 24 and is specific to Local Client Base non-reporting FIs. That’s not MDF, since they are a reporting FI.
I found this on page 78:
Prior to July 1, I closed a non-registered account where the advisor knew I was born in the US. Phew!
Hmmm, not good. Look at page 100:
@Duke
With respect to your statement that:
http://isaacbrocksociety.ca/2014/10/27/cheryls-claim-for-relinquishment-based-on-ina-1952-350-the-case-of-a-dual-citizen-at-birth/comment-page-7/#comment-4098625
By these “these decisions” the “former deputy IRS Commissioner and Chief of their CID” meant the mechanism used to solve compliance issues (to OVDI or NOT to OVDI). He did NOT mean whether to comply with the tax laws of the United States in a general sense.
US citizen abroad. I was paraphrasing. You don’t know what he meant. I do.
@Silver birch
What has happened to you is infuriating – privacy and Charter rights violated. I would start researching local credit unions, in general the smaller the better (less likely to be involved in FATCA reporting). Ask what the total assets are (under $150 million is good) – some will give you their recent financial statements if asked. Ask about local client base. There are posts in the Archive about credit unions (ex. Oct. 25/14). WhatAmI &/or Schubert may be able to provide more credit union info. All the best and good luck.
@Silver birch
I bailed on MD Management in 2007 after having three “advisors” in two years (sudden departures with no notice). Each of the advisors pushed only the MD family of funds– MERs north of 1.5%. For fun, I asked the advisor what he would suggest for a non-MD fund. He suggested some completely inappropritate energy fund with a crazy level of volatility. I pulled the plug and transferred my investment cash to RBC Direct Investments with whom I have been very satisfied. At the time I opened my account, there were no questions about citizenship or place of birth. As I said a couple of screens ago (I believe), if asked either question, I have no qualms about saying “I’m a Canadian born in Canada.” The law in this case is truly an ass. I refuse to be a casualty of it. For a corporate checking account, I also use RBC– the account is low cost and I can quickly transfer money in and out of my RBC DI account. With my investment accounts, I have submitted the W8-BEN form (they are good for a couple of years. I first filed one back in 2008 or so). The investing end of things is extremely easy– I am a “Do it Yourselfer”– I use a combo of Vanguard Canada ETFs and GICs. It’s very inexpensive and very, very simple. I would give strong consideration to pulling the plug on MD Mgt.
@BCdoc. What is this W8-Ben form you refer to? Is that also an IRS form but for Canadians? I’m not sure we are interested enough in investing to be able to do it ourselves. Too much monitoring. But we do currently bank at RBC both personally and for the business. I wonder if all our money suddenly arrived in that account would that jeopardize things? I feel like we might be out of a bank as well as an advisor because it would likely necessitate the form even though we are not new customers.
@Silver birch
The W8-BEN form applies to investment account. It is an IRS form that says you aren’t American. It places you into a preferred dividend tax withholding rate (15% vs. a standard 30%) on dividends from US investments. If you don’t hold US investments, you don’t need to complete this form. If you consider yourself to be American, you will fill out a W9 form instead.
Cash going into your corporate account from an MD account shouldn’t trigger suspicion. After all, you likely have your Alberta medical billings going in twice a month. RBC likes your money too– they do get to lend it out to others after all!
There are lots of options beyond MD Management. If you are going to delegate, I would strongly suggest doing your due diligence before you retain anyone. A fee-for-service adviser is really the way to go. There’s lots of good info at “Money Sense” magazine, http://www.canadiancouchpotato.com and http://www.bogleheads.org. Beware of leeches too– while physicians no longer use them, they are ubiquitous in the retail financial world. Good luck!
This is a repost. I also posted this on the Relinquishment & Renunciation Thread.
I just received a letter from the Dept of State rejecting my claim for relinquishment by Section 350 of the 1952 INA. They said “The law clearly provided that the three years of continuous residence must have postdated the seeking or claiming of the benefit.” i.e. after I registered for birth abroad in Canada. It doesn’t say that in the FAM…does anyone have a copy of the original law? I have been unable to find it. I am of course devastated as many Brockers have been in the past and will contact a lawyer to see if I can still manage to get this relinquishment. I feel like I’ve been kicked in the stomach. Many thanks to all of you who tried to help me. It is very much appreciated. I will, of course, continue to support the cause.
Oh my what devastating news. It does seem to suggest that if presented with the required time-line they might accept the claim?
That seemed fast. When was your consulate appointment?
I’ve forgotten your details. Was your foreign benefit claim only applying for RoBA? What about voting and applying for and using a Canadian passport? I guess at least one of these things would have to have been before you turned 22.
Here is the 1952 law:
http://tesibria.typepad.com/whats_your_evidence/1952_Immigration_and_Nationality_Act_66Statxx_TitleIII_Chapter3.pdf
<blockquote.
SEC. 350. 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 unless he shall …
The law has the word “hereafter”. If it said “thereafter”, I guess I would agree with their statement (although it never occurred to me before). But does “hereafter” mean the same as “thereafter”?
Cheryl, oops, of course your history is at the top of this thread!
@ Cheryl
With help from Google Translate: Su estómago es nuestro estómago. (Your stomach is our stomach.) So sorry the Dept. of State could not understand what I believe is an excellent case for your relinquishment.
@WhatAmI
My appt was Aug 18. When I contacted the consulate to confirm what date they sent my paperwork to state they said as I was obviously worried they would speed things up. Totally bizarre! I thought they were just saying that. I’m afraid I’m not thinking too clearly now but it seems they aren’t counting my Canadian citizenship at birth until I registered. I don’t know what the “hereafter” means. I do know it’s beyond me now. I’m going to get some help. Thanks so much for the link. I don’t think the FAM said that but I’ll check it all out tomorrow. Thanks again.
Thanks Embee. I really do appreciate the support. I’ll be fine and try to figure it all out. Maybe tomorrow.
@ Cheryl,
What awful news. I’m really sorry to read this and I hope you’ll be able to get things worked out.
You asked about the word “hereafter.” I looked it up in a US law dictionary. Don’t know it sheds much or any light on the situation, but anyway,
Cheryl. Clearly the State Dep’t lawyer doesn’t understand the law as it was written. In the version quoted on the IBS website, former INA 350 said “thereafter had 3 yrs. residence after the age of 22”
.taking it in context any right minded person would agree that thereafter is correct and hereafter is meaningless jargon.
In any case, what to do? There may or may not be an appeal process- I have no idea. But I imagine it would involve lawyers and be expensive.
Or you could do what a dear friend of mine did. In his mind he said ‘I don’ t care what you say, iI know I relinquished and that’s how I’m going to act from now on . I will have nothing to do with you.
@WhatAmI, The only thing I can think of is my universal health coverage I got when I became a landed immigrant effective June 12, 1973. I noticed in my Canadian Citizenship and Immigration papers that my student VISA and landed immigrant papers were not present in the file. I assume that as a Canadian by birth they were unnecessary. I made that point in my application, not that the benefit then started in 1973 but that it was still a benefit of my citizenship. I’m not sure if this would count.
I guess the good news is they didn’t discount sec. 350 or my intent.
The other thing George mentioned before was using my registration as an expatriating act. I’m not sure how that would fly either. Prior to my spot I hadn’t thought about that. That may also have been why I was told I would lose my citizenship. I don’t know.
@DukeofDevon
I’m not sure but the thereafter or hereafter may relate to a time a benefit was received if Canadian citizenship. I had not read it that way so I’ll have to think about it.
Thanks for your support. You guys are all amazing!
Thanks Pacifica777. I don’t know about the hereafter or thereafter but the support at Brock is truly amazing.
Hereafter or thereafter refers to age 22. I’m not a lawyer but I think I understand the English language. Unfortunately lawmakers like to make it unintelligible to mere laymen. Sort of like M.D.s
That’s what Washington said. That’s precisely what you did. It makes no sense . Good luck.
Well, I guess we’ll see.
@ Cheryl This is hard to understand, I thought you documented your case well. Possibly they are confused about your late registration of your birth and/or your confusion over your citizenship status. Did you register your birth after the age of 22, maybe that is the problem? Somehow they think you had to have confirmation of your citizenship status before the three year period? Canada granted you citizenship retroactive to birth so it should not matter but it wouldn’t be the first time the US has misunderstood its own laws. As far as benefits go, living in Canada as a Canadian should be enough (using health care, voting, etc), after all holding “US citizenship” even outside their country is considered to have “benefits” in their eyes.
@ others
Didn’t “Benedict Arnold be me” have some success in changing the grounds for his relinquishment, after an initial rejection? I thought it was done through conversations with DOS, not a court. Maybe Cheryl can open a conversation with them to clarify their ruling, which seems vague. One has to wonder why it was so quick while others wait up to a year,
@ Cheryl,
Re:
I was puzzled earlier and re-reading I still am. They’re rejecting it because they claim you didn’t live the required 3 continuous years in Canada? I agree with Duke that doesn’t make sense. Could you resolve this by providing proof of your residency in those years – or did you already in your CLN application package and they missed it?