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.
@ Heartsick,
Yes, the first step is to get clarification from DoS and try to resolve it at that level. There is a formal appeal procedure within DoS (and that decision can be appealed at Federal Court), but definitely best to communicate with DoS to see if it can be worked out without a formal administrative appeal, as, you point out, Benedict Arnold was able to do.
Cheryl. Pls. keep us posted. You will have a number of choices to make.
@Cheryl
very sorry to hear this news. As said by many others, pls keep us informed of what is happening and how you are feeling.
Cheryl – the twists and turns of American citizenship law have kept the US Supreme Court on their toes for quite a long time, so you needn’t feel somehow inadequate for being confused! The “hereafter” language in former s.350 would appear to refer to nothing more than the date of enactment of that provision (1952). Americans Abroad has a pretty nifty summary of the changes of citizenship law and the various major cases considering it at this link: https://americansabroad.org/files/3013/3478/0295/18-04-2012_1318_971.pdf
I was unable to piece together precisely the dates from your recitation but here is what I think I can conclude. Read what I have written below in light of your own facts and think it over:
1. Your intention to relinquish appears to have existed throughout all of your named actions in the 1970’s. In saying that I mean that the consequence of your action (asserting/resuming Canadian citizenship from birth) was loss of US nationality, you took the action voluntarily and you understood and voluntarily accepted the outcome when you took the action. Recitation of the phrase “I intend to relinquish” is not the standard the Supreme Court set in the Terrazas case on my reading (caveat – over and over and over again: I am not a US lawyer and not giving US legal advice. I am giving you a view to give you a start on choosing a direction which, should you pursue it, you will need to confirm). You knew that the consequence of your action would be loss of US citizenship, you took the action voluntarily and you were fine with the outcome and indeed happy with it. This first point is important because the courts have been imposing a “voluntariness” filter on expatriating events since Affroyim v Rusk on the reasoning that Congress can’t strip you of your nationality, only you can. So we need to start with the assumption that you can reasonably and confidently assert that you had that level of voluntariness. You needn’t ahve been an expert on US law or nationality statutes. You knew that claiming your Canadian birthright and taking up residence in Canada would have loss of US nationality as a consequence. Nobody made you do it – indeed, as a permanent resident you were under no compulsion to do anything as your rights are little different apart from voting). You contemplated your life going forward as Canadian only and said “that’s for me” in your heart. In my book, if you can establish that credibly, it is hard to imagine what more the US could ask of you to satisfy the tests laid out in the Supreme Court cases (Affroyim and Terrazas) without requiring people to engage in outright ex post facto fiction. The USSC was focussed on retaining citizenship as a right, but they must also recognize that losing it is as well and they can’t be putting roadblocks out there that substantively deprive you of that right.
2. Given the requisite intent – which I infer from your note that you claim to have had and can see nothing from which the Department of State could have concluded otherwise in what you have told us – the next question is whether you met the formal requirements of the statute. Here is where I think the chronology is a bit confusing. You need to have voluntarily and with the above intention (i.e. relinquishment) accepted the benefits of your Canadian nationality (see below) AND resided in Canada for at least three years after age 22 (and before the repeal of the statute in 1978).
Unpack that a bit. First is the action “voluntarily sought or claimed benefits” of the nationality. I’m not sure that going to the doctor with state medical insurance will fit the bill since that is equally available to permanent residents. You came to Canada as a permanent resident and only subsequently tried to convert your status by claiming citizenship. I would suggest that the act of claiming that citizenship by birth was an action voluntarily seeking the benefit of Canadian nationality. Voting on that basis woudl also fit the bill I should think. Did either of those steps occur before 1978?
The second part of the puzzle is the word “hereafter” in relation to the three years of residency in Canada after the age of 22. You had three years of residence in Canada after the age of 22 and before the repeal of the statute in 1978 according to what I read above. If the word used in the statute were “thereafter”, then I have little doubt that the three years of residency must be counted from the date of your action (applying for recognition of your right of citizenship from birth or voting). Unless there is a typo in the copy of the statute you referred us to, the word Congress used was “hereafter” which in its usual and ordinary meaning can only refer to the date of the statute itself (1952). In other words, all that “hereafter” adds to the analysis is a prospective element: your residence test begins in 1952 and ends when you lose your citizenship.
Hereafter thus suggests that your three years of residency can begin BEFORE your actually made the application for recognition of your Canadian citizenship (or voted) such that when the you hit your 25th birthday before 1978 with three continuous years in Canada having voted or applied to have your Canadian citizenship recognized AT ANY TIME prior to 1978, you should have satisfied ALL of the requirements of s.350 if you had the intention at the time. In short, the order in which those things occurs is not what matters so much as the fact that they all occur.
The reading is only common sense. If you left the US and moved to Canada in RELIANCE on your Canadian citizenship from birth, you couldn’t possibly have three years of residency FIRST. The normal sequence of events would be: (a) born with Canadian citizenship in the US; (b) move to Canada and establish residence based on right conferred by citizenship; and (c) three years later (or three years from age 22) US citizenship vanishes (if (b) were done with the required intention).
Where does that leave you? Prior to 1994 there was no obligation to do anything about relinquishment apart from act consistently with it. If you relinquished you shouldn’t have applied for a passport, voted or taken up residence in the US. You didn’t. If you had done so, you would be in Boris Johnson’s shoes having to explain how and why you mistakenly believed that you had NOT relinquished since you can’t un-do relinquishment by subsequent actions. You have acted consistently from what you wrote above.
By the way, the 1994 date is only relevant for tax purposes – it does not affect whether you lost or retained citizenship. It is merely a data after which the Tax Code imposed an obligation to tell the Secretary of State that you had checked out of the Hotel California without permission.
If based on all of this, you conclude in good faith that you are not American then: you are not American. You can honestly fill out any FATCA related forms and say “no” to any question about US citizenship. If asked why you don’t have a CLN you can reply “because I relinquished in 197_ before any such requirement existed”. You were never required to get one and not having one does not detract from the conclusions to be drawn from your actions in the 1970’s.
However, you DID apply for a CLN and they have rejected it. I don’t think that changes your honest conclusion about your status and ability to take whatever FATCA position you think flows from that. However, you may not wish to let things stand with a negative answer. I don’t know what the appeal process is precisely, but I know there is one. It is possible that your application was fuzzy on some key points or it is possible that State Department zombies applied policy directives on auto pilot and simply missed the nuances of your case. Or it might be a bit of both.
If you do appeal, consider getting a lawyer – and a US lawyer (I know the view of the crowd here about that, but they are not all condors or agents of the state) – to review your facts and help you craft it. You don’t necessarily need the lawyer to DO the appeal for you, but it would be money well spent to have the lawyer REVIEW what you are doing and give you some helpful comments. Any such lawyer can and should review my essentially lay person’s view. It might help speed up the process of analysis by a lawyer to read what I wrote or at least to ask your questions of the lawyer based on what I wrote. However, I cannot SUBSTITUTE for having a US lawyer review your case. If I have helped you focus your story and ask the right questions, you will save some money and get better value from whomever you do consult.
In short, you are Canadian and can happily continue to be one. You may in good faith assert your non-citizenship each and every time it matters if you have carefully reviewed matters and reached that conclusion. You are not personally bound to act by the State Department’s conclusion any more than Affroyim, Terrazas and the others who took them on to KEEP their citizenship were. So the first level of possible response is: do nothing, live in Canada and act consistently with your good faith belief.
The next level of reaction is to spend a bit of money appealing and get a little help from a qualified lawyer. State will have to look more carefully at an appeal and there would seem to be little downside to asking them to do so, particularly if you conclude that they have simply misapplied the law.
The next level after that is to put the entire appeal process in the hands of a lawyer. That will of course cost more money and only you can decide how much you are prepared to spend to acquire as much peace of mind as you think you need.
I cannot resist commenting on how much I would love the “why don’t you just renounce” crowd of trolls that populate the various internet sites that collect comments on these stories to hear Cheryl’s story. The trolls believe all you have to do is wake up and flip a “renounce” switch so stop complaining. The reality is the US government contests these things and actually tries to force citizenship on those who don’t want it abroad. If citizenship in the US is such a priceless gift, why do they put roadblock after roadblock in front of those who ask nothing more than to be left alone after a lifetime spent beyond their shores? Somebody ought to be embarrassed. I know anybody who signed the Declaration of Independence would be.
Ann Frank. A brilliant analysis as per usual.
If I may, I would add 2 further levels of reaction. ( to be considered if an appeal fails. )
At that point, revert to the first level and do nothing further.
The next level would be to renounce and obtain a CLN and do nothing further. If a nasty letter were to subsequently arrive from the IRS it could be used to wrap the garbage,
.
@Cheryl; Let me add my three cents after Anne Frank and the esteemed and honorable Duke of Devon.
First dittos what Anne Frank said…..
Previously I indicated a fallback position for you. You probably need to now cut and paste those comments so you can at least see what the fallback position looks like.
In general terms from what I remember……..
You entered Canada as a US Citizen and became a landed immigrant. Your US Passport was so noted with a Canadian Visa, in the eyes of Canada and yourself you were a US Citizen nothing more or less.
You then as an adult applied to be Registered as a Canadian Citizen. Until that registration application was completed, in the eyes of the Canadian Government you were a US Citizen.
There is a State Department Manual that clearly states Registration is synonymous with Naturalisation. You need to find that link I gave.
8 U.S. Code § 1481 provides that naturalisation is a relinquishing event.
In order for registration to count, your status with the State needs to materially change. Many on IBS have registered but their status did not really change.
You on the other hand are different, or rather an argument can be made that its different.
Whilst Canada may have recognized your registration retroactive to birth, your status with the State did change. You applied to enter Canada as a landed immigrant on a US Passport and received a Canadian Permanent Visa.
State might argue that you were a Canadian since birth and that was what your basis was on your first application. However it appears reasonable to state that whilst your registration was retroactive, it changed your formal status as a bona fide recognized landed immigrant to that of a Canadian Citizen.
Not being an expert on US nationality laws, you applied under the wrong section.
It would be very important that you have your original landed immigrant documentation and to also have your registration documents. You would also need the 7 FAM series that states the two terms are synonymous.
I agree with Anne Frank that your first claim now has a cloud as it has at least partly been adjudicated.
However your claim of relinquishment by naturalisation/relinquishment has not been adjudicated at all. You need to determine if you require further proof such as a CLN.
At a minimum, you will need to document your relinquishment with copies of documents, copys of 7 FAM, copies of your visa, copies of your registration application and then likely swear an affadavit to what you did and then maybe get a private legal opinion from a lawyer that you can show to others.
You are fortunate in that your unusual case had two arrows, most have one arrow. You still have an arrow in reserve, consider yourself blessed.
@Anne Frank
Wonderfully perceptive analysis as usual.
One quibble… “why do they put roadblock after roadblock in front of those who ask nothing more than to be left alone after a lifetime spent beyond their shores? Somebody ought to be embarrassed. I know anybody who signed the Declaration of Independence would be.”
Yes, the roadblockers should be embarrassed. But those who signed the Declaration of Independence would be OUTRAGED at the destruction of their legacy
Many great thoughts from Anne Frank, but I have to disagree with the “hereafter” interpretation, much as it sickens me if it leads to anybody being denied a claim under former INA 350.
There are other uses of the word “hereafter” in the same 1952 document, and also the use of the word “thereafter” (see Sec. 351 and 353). I’m suggesting an interpretation of “hereafter” and the other wording, hoping that someone can be convincing of otherwise from the contents of this law. I’ve written this very matter-of-factly, with minimal use of “I think” and “in my opinion”, etc, to make it more clear for understanding. I don’t know any more than anyone else. I’m just reading the words and applying logic where admittedly, none is deserved.
SEC.349. (a) From and after the effective date of this Act a person
who is a national of the United States whether by birth or naturaliza-
tion, shall lose his nationality by-
…
(8) deserting the military, air, or naval forces of the United
States in time of war, if and when he is convicted thereof by court
martial and as the result of such conviction is dismissed or dis-
honorably discharged from the service of such military, air, or
naval forces : Provided, That, notwithstanding loss of nationality
or citizenship under the terms of this or previous laws by reason
of desertion committed in time of war, restoration to active duty
with such military, air, or naval forces in time of war or the
reenlistment or induction of such a person in time of war with
permission of competent military, air, or naval authority shall
be deemed to have the immediate effect of restoring such nation-
ality or citizenship heretofore or hereafter so lost; or
…
INA 349(a)(8) says “heretofore or hereafter so lost”. That seems to indicate citizenship loss “before _or_ after” _something_, so I don’t think the “before” (heretofore) could refer to the 1952 date the law itself was enacted. Therefore, “hereafter” can’t refer to 1952 either.
In INA 349(a)(8), “heretofore or hereafter so lost” refers to the loss of USC due to some past or future action at some past or future time. There are a few possible actions in the paragraph: the act of desertion, the act of the court martial, the act of the dishonourable discharge. The past or future “time” could be any of those, or the act of being reenlisted. Chose any of these or even tie them up into a bundle of one time and action, and I think the meaning is the same: if the deserter is ever reenlisted the citizenship is protected from loss due to a future courtmartial proceding, or re-instated after the fact of a past courtmartial.
INA 350 doesn’t say “shall hereafter lose…”, which I would agree as referring to the 1952 enactment of the law itself. It says “by hereafter having (a continuous residence)”, which I think refers to the stated circumstance, not the enactment of the act.
INA 350 doesn’t say that you lost USC by taking benefit of a foreign benefit alone, or by simply living out of the USA for 3 years alone, you had to have done both. And, I’m sorry to say, I think I can now see the interpretation that the 3 years had to have occurred after the claim of the foreign benefit. INA 350 states the claiming the foreign benefit in the past tense (“who has claimed benefits”), but then it states the 3 years of continuous residence “at any time”, including the future.
The 3-year period description includes: “(1) prior to the expiration of such three-year period, take an
oath of allegiance to the United States before a United States”. They’re giving a time-limited out to save your USC that starts after the act of claiming the benefit. If the 3-year period has an expiration date, then it must have a start date. The 3-year clock starts ticking when you claim the foreign benefit or reach age 22. If you turn 22 and haven’t claimed any foreign benefit, there is nothing to start the clock ticking, so it doesn’t expire when you turn 25. If it didn’t expire before Oct 10 1978, then you never did lose your USC.
Consider this scenario: living out of the USA for more than 3 years after reaching age 22, THEN taking a foreign benefit, THEN moving back to the US. Did you lose USC? I don’t think so. You took a USC-saving action within 3 years of claiming the foreign benefit, just as stated in the law.
The expatriating act in former INA 350 was the combination of taking the foreign benefit and then not following up with some (time-limited) action to retain your USC. That’s un-American. If you lived abroad for a long time, then took a benefit, then ran home to the US, well, what’s more American than that, eh?
Former Sec. 352 is similar to Sec. 350, but applies to people who naturalized as USC. It said you would lose USC if you live in your original country of citizenship for 3 years (after naturalizing as a USC), no benefit seeking required. It specifically states the 3 years could “commence before or after the effective date of this Act”.
Look at Sec. 355. It is very similar and uses the word “hereafter”, which is perhaps a tiny bit more clearly saying “after that time” (of the stated circumstances).
@Cheryl, what if anything did you to claim Canadian citizenship benefit prior to Oct 10 1975 (a few months after your turned 22, I believe)? Did you vote, apply/use Canadian passport, pay taxes, etc? Your timeline is not clear as to when things happened.
@WhatAmI, I didn’t vote until 1977…as I was a landed immigrant before. I didn’t get a passport until 1983…I was a poor student. I did file taxes for sure in 1974 but I don’t have any proof of that. Is that a “benefit”???
@WhatAmI, actually I filed taxes and got a rebate because I was poor but again I was a landed immigrant then?
@Whatami: I don’t want to seem rude, but I cannot agree with your analysis. When the word “hereafter” is used, be it in a contract, a statute or a novel, it means exactly what it appears to mean: after the time of the speaker’s statement. In a contract, that would be the effective date of the contract. In the case of a statute, that indicates that the statute speaks from the date of promulgation forward. Each and every instance you cite above is consistent with that. “Hereafter” in each instance you cite refers to the date of the enactment and thus operates to confirm the prospective (and not retroactive) impact of the section.
@George: Section 350 of the former statute may be analogous to naturalization, but it is NOT naturalization. Cheryl’s case under s. 350 may turn out to be very straightforward and I would be slow to confuse it with naturalization. The words in s.350 mean just what you think they do – any act taken to take the benefit of that other nationality (in this case, Canada). Such an action could be nothing more than crossing the border AS A CANADIAN (Cheryl did not initially do this as she was unaware fo her dual-from-birth status, although she may have done so later?). It could be voting. It could be filling out an application for a citizenship card based upon her citizenship at birth (i.e. asking to recognize that which she already had). In Cheryl’s case, the expatriating act was (i) voting AND/OR applying to have citizenship recognized (whichever first occurred) PLUS (ii) residence in Canada for at least three years after her 22nd birthday and (iii) all of the above being completed BEFORE the statute was repealed in 1978. To this I add her intentions, commented upon at length in my note above. If she had the three factual conditions objectively to her credit by 1978 and can credibly claim the intention, she would appear fully to satisfy all conditions of the statute and has not been American since and need look no further.
Note, it is not the acceptance by Canada of her application which controls – she applied for the “benefit” of being recognized a full Canadian instead of merely permanent resident. If Canada took one month or one year to process that application, it merely confirmed what she already was: a Canadian. The controlling date is the date of the first CLAIM of the benefit. As noted, obvious starting points would be crossing the border as a Canadian, voting or seeking recognition via an application for a citizenship card on that basis (rather than on the basis of years of residence as a permanent resident, for example). I hope that clarifies.
By way of PS – Cheryl: you can file a freedom of information request to get a copy of your application documents for citizenship recognition. I think it costs a few dollars in processing fees and they take a month or two to process it, but it will get you copies of whatever you filed and give you the dates you filed the papers.
Cheryl – if you voted in 1977 and were then 25 or over with three years in Canada, you had the package of events fully covered under s.350 from all I can see. The only legitimate question for State should have been your evidence of intention about which I can add little else. Best of luck.
@Cheryl, it now looks like you need to get out 7 FAM 1250 and go to page 2.
“Terminology: Foreign state procedures for conferring nationality after birth may transpire under various terminology such as “naturalization,” “registration,” “declaration,” or “reintegration.” The terminology used is not determinative; the important factors are whether the person acquires the foreign nationality after birth and whether an application is made. If these factors are present, a potentially expatriating act has been performed.”
You defeat the following based on the fact you were a landed immigrant on a US Passport with a Canadian Visa. Remember, Immigration Canada knew the full facts of your parents when you were granted immigrant status;
“An expatriating act is not committed if a U.S. national acquires the nationality of a foreign country by automatic operation of the country’s law (e.g., by being the child of a national of that country) and did not take affirmative action to acquire the other nationality;”
Again be thankful you have a second chance at the apple.
@Anne Frank, I am on a different path. IF INA 350 is unworkable, it appears she has a straight path under INA 349.
Her registration is defacto naturalisation according to 7 FAM 1250.
Naturalisation is a relinquishing act in its own right.
She appears to have a case because her status with Canada did in fact change that from a Landed Immigrant to a Canadian Citizen. And she has the visas and paper trail to prove that.
@AnneFrank, thanks again but if the 3 yrs has to be after the benefit then I ran out of time before the law was repealed in 1978 if the benefit was voting in 1977. I’m not sure that’s what it says but that’s what DOS says.
@George, I’m not sure what you mean that Canada knew the full facts of my parents at the time of my immigration?
Thanks Anne Frank, I got my file already. The way you see it is the way I initially but not the way they saw it. I will see what the lawyer says after he has reviewed everything. I will forward him your comments though. Thanks a lot.
@Anne Frank,
No, not rude at all. Please don’t think I’m being rude either, even if it sounds that way! 😉 I know I sound rude or worse when I’m trying to be clear in technical writing. We’re just brainstorming this for Cheryl and anybody else who has a shot at an INA 350 claim. I myself could have had a claim of INA 350 but it was repealed a few months before I turned 25. My benefit from Canadian citizenship were before I turned 22 so this point of the timing wouldn’t have affected me.
Well done, you have swayed me to believe your definition of “hereafter” as meaning the effective date of the act. However, that does nothing to change my interpretation or resolve the question of whether or not DC was wrong to deny Cheryl because the timing of her foreign benefit claim and the timing and expiration of the 3-year period.
But, no matter now. It’s all in the FAM. Game over if Cheryl’s first benefit claim of Canadian citizenship was voting in 1977.
First, note that 7 FAM 1200 Appendix C uses the word “thereafter”!
And the killer, also in 7 FAM 1200 Appendix C:
@Cheryl,
You posted:
From my previous quote it now seems quite clear that they correctly quoted the FAM.
It’s interesting and helpful to others that they considered “registered for birth abroad in Canada” as being a benefit under INA 350.
Nobody has asked the question, but after revisiting INA 350 for the last several hours now I’m not sure if the benefit claim itself has to occur after age 22? We can leave this question for another day!
The question often arises if registering Canadian citizen birth abroad is an expatriating act under INA 349. Lots of disagreements about that. As George points out though, your case is quite different because you and Canada and the US all thought you were a landed immigrant here, and you took affirmative action to change your status. I think that’s George’s point, and that you may have a shot at INA 349: your action being a status-changing affirmative action that got you Canadian citizenship. Washington DC could still simply argue that you were dual at birth so nothing “really” changed when you dumped your landed immigrant status, which was arguably given to you by mistake in the first place since you were always Canadian.
I have been meaning to write in about my recent relinquishment rejection but, as they say, life got in the way. Cheryl’s story has inspired me. I think I may have set some record for turnaround – 4 weeks to the day from interview to rejection.
It’s a long and complicated story so please bear with me.
Background: I left the US for England in 1973 but because I went back for a few years and did not settle permanently until 1984, I did not become a naturalised Brit until 1992. Swore an oath of allegiance to the Queen and was told by the Embassy that it could cost me my citizenship
In 1993 I became a magistrate, which required 2 oaths of allegiance to the Queen, administered and witnessed by a Crown Court judge. I have the original of that commission with the oaths which I submitted with my relinquishment application.
After 1992 I travelled exclusively on my UK passport and let the US one lapse. There was never any problem with this until 2004 when I was given a very hard time at the gate at Heathrow when I was on my way to visit my terminally ill mother. There had been no problem checking in with the UK passport but they tried to prevent me from boarding at the gate. I said I no longer had an US passport and they told me to go to the Embassy and get a new one. It was only after showing the stamp from a visit 3 months earlier I was allowed to board. Incidentally the same thing happened recently to a friend of my daughter-in-law and she actually went to the embassy that day because the airline promised her to get on a flight te next day. I didn’t have that luxury of time
When I returned to England I went to the Embassy to get a new passport. I felt that I had no choice and that it was obtained under duress. I only ever used it coming in and out of the country, though I would enter the UK on my British passport. Travelled everywhere else on the UK passport. I renewed the US passport last year before it expired. Big mistake.
Having seen so much lousy advocacy as I magistrate, I decided to study law and became a barrister. A case I took all the way too the House of Lords changed the law and is now in all the textbooks. I also founded a dementia charity in the UK. I paid taxes and voted there, have national insurance and health cards, driving licence and senior travel pass. I have just begun receiving an UK pension. I owned a house in England until the time of my divorce in 2008 . I have been given a medal for voluntary service in the UK. My children and grandchild are in the UK. Fortunately my kids are my stepchildren who I raised but never formally adopted so they have escaped the curse of US nationality.
I have never had a Social Security number or owned any property in the US. I have not voted in an US election since 1980. My only connection with the States is my 91 year old father, with whom I admittedly am spending increasing amounts of time for obvious reasons. Although this is the time I should be enrolling in medicare, I have no intention so to do.
For the past 3 years I have been a registered resident in the Netherlands though I spend a fair amount time back in England,, which is “home” for me, on charity business and see my family.as well as the trips to be with my father. It’s a peripatetic life but when I am in the US I feel like a total alien.
Fast forward to last year
when I went to open a bank account in Amsterdam (before then it required a “soci” number which I didn’t yet have) and was refused because my UK passport shows US birth. That was my rude introduction to FATCA and the beginnings of thoughts of expatriation That’s when I discovered section 349 and this enormously helpful site.I prepared my case for relinquishment with all the diligence I would before going into court. The Amsterdam consulate is much smaller and user-friendly than the London embassy so that is where I applied for an interview. At the end of June I was given an appointment for 1 October. I was told that the renunciation officers would not be there until then.
I dealt with 2 consular officers. It was a “good cop, bad cop” situation. The unpleasant one said that the passports were a deal-breaker (at least he had read my app and statement)and asked why I was first doing this now. I asked him what he was going to do at his next posting when he wanted to open a bank account. The more agreeable one said there was no way of predicting the outcome. They both said it would be months before a decision would be taken in Washington. What I didn’t realise was that they take your passport! I asked what if I needed it before it was returned. Bad cop said I shouldn’t be doing this if I intended to travel to the US. I said that I had no plans to travel until at least March but explained that I never knew if my father might fall or get sick and need me. It has happened before. The nicer one said that if that happened they could arrange something for me.
The rejection came on 28 October. The reason given was the use of the passport which I got under duress
This is not the end of the story.
Last week I wrote to Washington to appeal the decision. The next day I got an email basically saying that the use of an US passport outweighed all the other evidence and that when I applied for the 2004 passport I signed a sworn statement that it had been my intention to retain US citizenship when I became British. I don’t remember doing this.
It gets better. (If you are still with me)
State also informed me that I was issued TWO passports in 2004. I asked for clarification and was given two different numbers of passports issued on 22 March and 21 April of 2004– less than a month apart.
To the best of my recollection I made only one trip to the embassy and received only the April passport, which I have. I don’t remember getting two passports. I asked the guy at State why they would issue 2 passports within such a sort period of time and was told: if one was lost, if I needed a second one for a visa, or if there were stamps on it which would preclude my visiting certain countries. He said it was not clear from my file why there was a second passport.
I dont remember losing a passport ever. Nor do any of my family. It’s the sort of thing one is not likely to forget. Nor did I travel during that period so the passport would not have ever been used. Also,in those pre-biometric times, a replacement passport would clearly be marked as a replacement. The one I received (April) isn’t And question 21 on the passport application has boxes to tick, whether it is a renewal or replacement.
The only time I ever needed a visa was for a trip to Japan in 2007 and that is on my UK passport. I have never been to the mid-east or Cuba or any other place where entrance might be prohibited because of prior entrance to another country.
This all happened on the day before Thanksgiving so I was unable to do anything until Monday. I decided to forget about the unhelpful guy at Citizens’ Services and phoned the passport people directly. They confirmed that the 2 passports were issued on those dates and said that the second was issued from the same application as the first. WTF??
The FOI request was sent the same day. I asked for the passport application and the statement I allegedly signed.
Thank you for listening, good people,and watch this space.
@WhatAmI, but if they can say that being a landed immigrant was a mistake and I was Canadian from birth wouldn’t registration for universal health care in 1973 be a benefit of citizenship? It seems like they can’t have it both ways.
@Cheryl,
I can’t find anywhere the date when you applied for the birth abroad certificate, other than it must have been less than 3 years prior to Oct 1978?
You don’t have to be a citizen to get health care here, so I don’t see the health care issue helping INA 350. It’s a benefit of resident status (landed immigrant), not citizenship.
We now know that applying for a registration of birth abroad is a citizenship benefit under INA 350, as they stated in the letter to you. Again, the trick that George points out is that since everyone considered you a landed immigrant until you took action to change that status, you might have a shot at INA 349.
You see the conflict though. DC have ruled that your birth abroad application was an acceptable claim of citizenship benefit under INA 350, with the only problem for INA 350 being that you didn’t get to fulfil 3 complete years before Oct 1978. This means they ruled that you “were a citizen when you applied”. But, being a citizen already rules out the INA 349 section that we’re wondering if you have a shot at. Kinda like Catch-22.
Iit’s a tough call, and would need expert legal advice. Or, maybe just make the claim in an appeal process?
Your case is not simple!
@Cheryl – It would appear they are sticking to a very narrow point: does the statute require a specific sequence (accept benefits THEN reside for three years) or simply require the two conditions exist at the same time with the required intention (i.e. accept benefit and reside)?
I won’t claim the issue is cut and dried. The statute clearly does not explicitly create a sequence requirement. Many statutes do, this does not. The plain reading favours you. On the other hand, s.350(1) and (2) might seem to imply that there is a three year period AFTER claiming a benefit to, in effect, recant and go swear an oath of allegiance to the US. I see the argument, but I don’t think it is necessarily cut and dried. On balance, save and except the undoubted US court bias in favour of making US citizenship a form of crazy glue that cannot be shed, you should have the better case.
Firstly, a US lawyer is going to have to research this section of the act for its 26 year history. I rather doubt the narrow question you raise ever came up – remember, almost every case you will ever find in the US at least is somebody CLAIMING citizenship not claiming the right to lose it. Absent treason trials, the whole concept of arguing in favour of loss of citizenship is so foreign to the US mind set as to cause their minds to explode (I’m having visions of the first Austin Powers movie about now). However, you’ll need to have it researched I think.
Secondly, the whole matter of intention which the Supreme Court super-added to this and every other expatriation provision of the Act would seem to negate the whole idea that (1) and (2) were supposed to create a “cooling off” period. If you fully intended to lose citizenship and formed that intent without duress and of sound mind and body – and you are fully entitled to do so under s. 349 a half-dozen different ways – you lose citizenship immediately. There is no general policy of a cooling off period to change your mind. Rather, look at the word “hereafter”. When this provision came into force, the “intention” requirement had not been added by the Supreme Court. In Congress’ mind, loss of citizenship was automatic if a dual citizen went home and stayed there for three years after becoming an adult. The word “hereafter” gave any dual national residing outside the US three years to either move back “home” or make an appointment, swear allegiance and protect their precious US passport from being taken away from them. And not just any dual national could save themselves in this fashion – only those fitting in the list of exceptions noted in (2) (i.e. full time students, government employees etc). This was not a “cooling off” provision for just anyone, this was a saving provision for a small number of people with a perceived “legitimate” reason to live outside the motherland. Any other person living outside the US in 1952 with dual nationality had precisely three years to get their behinds back across the border or they were booted out for good. This wasn’t a cooling off period, this was a phasing in followed by a pretty hard cut-off. You can’t argue that Congress was trying to save you from yourself – the Supreme Court is the one who restrained Congress from taking citizenship away and the whole bias in the STATUTE was to punish and strip citizenship.
Once you realize that s. 350(1)and (2) were simply phasing in yet another way in which you could automatically lose your citizenship, the argument that a specific order of events can be read into s. 350 looks a whole lot weaker (and, as I said before, the statute does NOT on its face say so). As well, the whole concept of “cooling off” is unecessary and irrelevant once you bake into your analysis the court’s added gloss of intention. If you fully and freely intended to go, that is enough. It certainly is for s. 349, why not for s. 350?
Anyway, you have a complex little situation to be sure. @George’s suggestion of using naturalization and s. 349 as a fall-back may well have some merit, I haven’t looked in depth. The good news is they don’t appear to have taken you to task on intention, but on a debatable interpretation of a now-repealed statute. Further, it is highly unlikely that they will be worried about setting a bad precedent here. Twenty-six years after the repeal of s.350, how many people are likely to come out of the woodwork having your unique facts? Most people living in the land of their “other” nationality will have gotten there because they used their citizenship to enter the country and thus the clock started ticking as soon as they set up residence. Not many people are going to have become legal immigrants first in the mistaken belief that they were NOT citizens and only subsequently learned the truth. You have facts which can safely be presumed to be unique. They may resist out of bloody-mindedness, but not out of any need to defend an important precedent.
I think you can challenge their view on appeal from what I am seeing – at the very least you should have a pretty arguable case. On your side is, quite frankly, the plain meaning of the statute. Best of luck!
Thank you @Cheryl and @murdo douglas for sharing your travails here. You will never know just how many others will benefit. I wish you well and hope you will prevail. Thank you as well to @Anne Frank, Duke and WhatAmI, pacifica and others for trying to figure this all out – again, you and we will never know how many will find help and hope because of your efforts.
I’ll echo what badger says to Cheryl and murdo douglas for putting to this blog experiences in their claims to relinquishment. Every one of these reports and the expertise we see here analyzing and suggesting ways to prove your cases (this time with the brilliance of Anne Frank, George, Duke, WhatAmI and Pacifica, etc.) will enlighten the next person and the next and the next. What a valuable resource we have here (thanks to Petros) — the expertise and support of each other as we document our own cases for the good of all of us. Bravo — and thanks to you all!
@WhatAmI, The date of my certificate was Feb. 14, 1977. I am unsure why you say that they used my date of registration as a benefit. I am unsure what they were using as a benefit if they deemed anything I did as a benefit. Here is what the letter said.
“The Department of State has reviewed the “Statement of Voluntary Relinquishment of U.S. Citizenship”… We cannot approve your Certificate of Loss of Nationality of the United States (CLN) because you did notmeet the legal criteria for relinquishment under the former INA Section 350 of the Immigration and Nationality Act (INA).
For one to relinquish U.S. citizenship under INA Section 350, a law that was repealed in 1978, you would have had to complete the requisite three years of continuous presence in Canada after reaching the age of 22. The law clearly provided that the three years of continuous residence must have postdated the seeking or claiming of the benefit. INA Section 350 was repealed on October 10, 1978, before you completed the requisite three years of continuous presence after reaching the age pf 22. Therefore, you failed to meet the legal requirements for relinquishment under Section 350 of the INA..”
Then it goes on to tell me I can renounce etc.
I hope I didn’t mislead you in some way. I will have to try to have them clarify what was a benefit and etc.
@AnneFrank, Thank you so much for your time and thinking on this. I really don’t know how much hope there is but will sift through it. The controversy continues.