Updated on January 16, 2013
As the Government of Canada gets closer and closer to signing an IGA with the U.S. the issue of who is a “U.S. person” is becoming more and more important. Panic is starting to set in. Those of you who became citizens of another country prior to 1986 may not be U.S. citizens. Whatever you do: do NOT ask an accountant or tax preparer (they don’t have the expertise) or even a tax lawyer (they have a financial interest in your citizenship). The proper person to ask is a U.S immigration and citizenship lawyer.
Enjoy this old post.
Listen to the stories of these two people born in the United States. One of these is Professor Maurice Williams who wrote an interesting letter to Obama. Read the following blog post. These two people may or may not be U.S. citizens.
Renouncing U.S. Citizenship – A Growing Trend
Many people are coming to the conclusion that U.S. citizenship is at best undesirable and at worst dangerous. In the past – people came to America in pursuit of liberty and justice. There are some who still do. What is new is the large number of people who are interested in “ceasing to be a U.S. citizen”. More and more people are renouncing U.S. citizenship.
But Wait – Maybe You Are Not A U.S. Citizen After All
I started this blog because I believe that there are U.S. expats who believe that they are U.S. citizens when in fact they are not. Even if you were born in the United States, you may not be a U.S. citizen. It is possible that there are people who entered the OVDI program who are no longer U.S. citizens. This is first of a series of posts where I will discuss reasons why you may no longer be a U.S. citizen. There are many U.S. expats who would be very happy to be in your shoes.
The Law Of Citizenship – Well At Least A Small Part Of It
The law of U.S. citizenship – and this is what you need to consider – is complex. Furthermore, it has changed over time. American Citizens Abroad has compiled a fantastic essay describing the history of U.S. citizenship. I highly recommend it:
http://www.aca.ch/joomla/index.php?option=com_content&task=blogcategory&id=33&Itemid=44
Here is the text of the relevant statute governing expatriation:
http://www.law.cornell.edu/uscode/8/1481.html
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or
(3) entering, or serving in, the armed forces of a foreign state if
(A) such armed forces are engaged in hostilities against the United States, or
(B) such persons serve as a commissioned or non-commissioned officer; or
(4)
(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or
(B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or
(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or
(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or
(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
Gotta be a “Philadelphia Lawyer” to understand that! Presuming that you are in fact a U.S. citizen, the relevant law states that: it is possible to “relinquish” U.S. citizenship by performing a number of “expatriating” acts.
Three points are worth noting:
- The “expatriating act”, must be performed voluntarily and there is a presumption that the act was performed voluntarily.
- The “expatriating act” must be performed with the “intention to relinquish U.S. citizenship”. The legislative requirement of intention was included with the 1986 amendments to the law. Prior to 1986, the law did NOT require that that the expatriating Act be performed with the “intention of relinquishing U.S. citizenship”.
- The specific act of “renouncing U.S. citizenship is only one of the ways of “relinquishing” U.S. citizenship.
How Are Issues Of Voluntarines and Intention Determined?
Anybody can quote the law. The real issue is how the relevant facts are determined and by whom. How are issues of voluntariness and intention determined? By what evidentiary standard? Who determines these questions of fact? It was not until the early 1990s, that the U.S. state department accepted an administrative standard of proof that: U.S. citizens who became citizens of another country (dual citizens) did so with the intention of retaining their U.S. citizenship. As you can, prior to at least 1986, U.S. citizens who performed expatriating acts (including becoming citizens of other countries) have good reason to believe that the U.S. would consider them to have relinquished their U.S. citizenship. Because of the realization of those conequenes, it is easy to argue that U.S. citizens who became citizens of another country, did so with the intent of relinquishing U.S. citizenship. This is particularly true if, when becoming a citizen of the second country, one was required to renounce any other citizenship(s).
What About Your Conduct After Performing The Expatriating Act?
Those U.S. citizens who became Canadian citizens prior to the early 1990s (particularly) if you have neither filed U.S. taxes, voted in a U.S. election, and not applied for a U.S. passport may no longer be U.S. citizens. Once again, this is NOT legal advice. It is advice to the effect that: you should go out and get some legal advice.
Those who came to Canada in the 60s and 70s take note
Consider the following case involving a U.S. citizen who became a Canadian citizen in 1973.
Richards v. Secretary of State et al., 752 F.2d 1413 (9th Cir. 1985)
The following Court of Appeals case (one step below the Supreme Court) isn’t nearly as relevant nowadays as it was in 1985, in light of the State Department’s current (and much more permissive) policy on loss of US citizenship.
William Richards became a Canadian citizen in 1971. At the time he did this, the Canadian naturalization oath included a clause renouncing prior allegiances. Accordingly, a lower court concluded that Richards had lost his US citizenship.
Richards argued that he had acquired Canadian citizenship only because he needed said citizenship in order to get a job with the Boy Scouts of Canada. Although he conceded that he had made an explicit statement of renunciation of US citizenship as part of the Canadian naturalization procedure, he contended that this action on his part was not voluntary because he had been under “economic duress” at the time.
The Ninth Circuit Court of Appeals rejected Richards’ economic duress argument, observing that he had worked in Canada for several years as a teacher without being a Canadian citizen, and that there was no evidence that he had been forced to leave his teaching job or that he had made any effort to find a job that would not have required him to obtain Canadian citizenship and renounce his US citizenship.
The lower court found (and the Ninth Circuit agreed) that Richards knew and understood the significance of the renunciatory language in the Canadian naturalization documents. Although Richards would have preferred to keep his US citizenship, such a wish was not sufficient to negate the presumption that he had chosen, in the end, to give up that citizenship. “We cannot accept a test”, the Ninth Circuit stated in its opinion, “under which the right to expatriation can be exercised effectively only if exercised eagerly.”
It should be noted, by the way, that Canada no longer requires new citizens to give up their other citizenships. The renunciatory language in the Canadian naturalization oath was ruled illegal by a Canadian court in 1973 on technical grounds and was subsequently removed — and Canada has allowed dual citizenship without any restrictions at all since 1977.
U.S. Persons Abroad - Members of a Unique Tax, Form and Penalty Club 
I know of a few families who moved from Canada to the U.S. many years ago. First, when the parents reached the age of 65, they were eligible for the Old Age Pension, also a subsidy for a low income. I have no idea of the income of a 65 year old in the U.S. The total of ours would be app. 1500. per month. Now, their ‘children’ are coming up to the age of 65. Guess what?? You see, they have dual citizenship, now have their pensions deposited in their bank accounts here, and once a year they come home for a ” visit” to make a withdrawal. They were smart. Just never changed their addresses!!