In February, [Reaz H. Jafri, a partner at Withers Bergman] received an e-mail that State’s Foreign Affairs Manual had been revised to instruct diplomats that a U.S. passport can be returned to the “intended expatriate” if she or he needs to travel to the United States before the “loss of nationality case is approved.”
Of course, if a person has already lost U.S. citizenship, it is illegal both for the State Department to give the person a U.S. passport (22 USC § 212), and for the person to use that passport enter the United States as a citizen — such usage is not only a federal crime (18 USC § 911), but makes you inadmissible to the United States in the future (8 USC § 1182(a)(6)(C)(ii)). So, according to a Wednesday article by Mr. Jafri himself, the State Department takes the legally-dubious position that you are still a citizen until they say you aren’t:
[The Department of State's] long-standing position has been that while the CLN was pending, the renunciant remained a U.S. citizen and thus was ineligible to be issued a visa to visit the U.S. for business, pleasure or other purposes (U.S. citizens are not eligible for visas).
The Second Circuit might be rather surprised to hear that, considering what they wrote in United States ex rel. Marks v. Esperdy, 315 F.2d 673 (1963):
It is equally clear that Congress sought by the enactment of Section 356 of the Immigration and Nationality Act of 1952, 8 U.S.C. 1488, to have loss of nationality occur immediately upon the commission of expatriating acts: ‘The loss of nationality under this Part shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this Part.’
That case concerned a relinquisher rather than a renunciant:
If Marks lost his American citizenship by virtue of service in the Cuban Armed Forces, as we are constrained to hold that he did, he became an alien in 1959 at the time the expatriating acts were committed, not at the time his alienage was judicially determined.
Congressional intent and executive interpretation
However, Section 1488 itself makes no distinction among the different ways of losing citizenship. The Department of Justice, for its part, accepted as recently as 2002 that none of the changes to intent and burden of proof in expatriation cases in the latter half of the 20th century did anything whatsoever to shift the legal timing of a person’s loss of citizenship: it still occurs on the date the expatriating act is committed, not on the date of administrative or judicial approval.
Going even further back, Congress clearly never intended that the exercise of the fundamental human right to change one’s citizenship should have to wait for government imprimatur. As Edwin D. Morgan (R-NY) stated during the debate on the Expatriation Act of 1868, in response to a provision that he thought would require people to obtain proof issued by their former country that they had renounced its citizenship:
In the grand question of the right of expatriation my colleague and myself fully agree; but I hold that the best evidence of the intent to expatriate one’s self is the very act of expatriation; and that no Government should impose conditions as to the exercise of this right. If a Government can impose conditions upon which a citizen or subject can expatriate himself, then it has equal power to prohibit expatriation altogether.
Now, sir, suppose that we did enact a law providing that a declaration before a competent tribunal should be held to be the evidence of the intent to expatriate one’s self, and that the Governments of Europe adopted similar regulations, could we, with such a law upon our own statute-book, naturalize any subject of such foreign Power who did not bear with him the evidence of having declared his intention to expatriate himself before he left his native country? Certainly not. And yet, sir, to refuse to naturalize him would be admitting that expatriation was a privilege granted by a prince, instead of being an inalienable right derived from Almighty God.
And when it comes to citizenship for tax purposes (rather than citizenship for citizenship purposes), Congress spoke even more explicitly when they enacted 26 USC § 877A(g)(4) and § 7701(a)(50): a renunciant loses U.S. tax personhood on the date of renunciation. The only people who lose U.S. tax personhood on the date of CLN approval are those who get a CLN “by surprise” without either having renounced nor signed a DS-4081 relinquishment statement — apparently, this only means people whose relinquishing act is to take a policy-level position in a foreign governments, to which is inapplicable the presumption of intent to retain U.S. citizenship (22 CFR 50.40(a)).
The motivation behind these sections was quite clear: modern Congresscritters abhor the idea that anyone abroad (besides an American Samoan) could exercise the rights of Americans while not being a U.S. person under the “Internal” Revenue Code — and travel to the Homeland on a blue passport is clearly one of those rights.
Why not let renunciants apply for U.S. visas immediately?
It seems the folks at Withers Bergman also tried suggesting to State that renunciants should instead be allowed to apply for visas immediately after swearing the Oath of Renunciation, but for whatever reason, State decided to reject that option:
The lack of conformity left renunciants in a state of limbo with no clear guidance while waiting for the CLN.
Based on client experience and feedback, Withers raised the unconstitutionality of the legal dilemma with DOS and argued that a either the U.S. passport be returned to a renunciant or a temporary visa be issued. Seeing the merits of the legal and constitutional arguments made by Withers, DOS changed it policy.
The State Department in fact don’t give a damn what the Immigration and Nationality Act actually says: they spent four decades misinterpreting another part of it to require dual citizens to use a “United States passport” to enter the U.S., when the law actually only said “valid passport” — until Congress decided to paper over State’s malfeasance in a “technical corrections” act. And even if you get State to obey the law and treat you as a non-citizen while you’re waiting for your CLN, they can take their revenge by denying you a visa anyway and hiding behind the shield of consular nonreviewability.
只許州官放火，不許百姓點燈 — the officials can commit arson, but ordinary folks aren’t even allowed to light lanterns.
Well, that’s kind of a depressing note on which to end this post, so let me point to something a bit cheerier. All the coverage has focused on the return of the U.S. passport to the renunciant for travel to the United States, but there’s something potentially far more significant in the most recent FAM update: an explicit policy on cancelling the U.S. passport and handing it back to the renunciant immediately. 7 FAM 1227(e)(5):
(5) If the intended expatriate advises the post that he or she needs the U.S.
passport immediately because it contains valid foreign visas, the post may cancel the book in accordance with 7 FAM 1300 Appendix Z, “Cancellation of Passport Books and Passport Cards.” Do not damage the entry/exit or visa stamp or foreign visas;
If they stamp it with the famous “Bearer expatriated self” stamp at that time, then you will have a proof of renunciation in your hands on the same day — which in some circumstances might be just as good as a CLN for proving that you are no longer a U.S. citizen. However, 7 FAM 1300 Appendix Z does not appear to be available online, so we’ll just have to wait for future renunciants to try this and see what happens.