Born abroad to US citizen parents in a #CookvTait world? Are you a US citizen or do have a right to US citizenship?

Introduction:

The above tweet references an earlier comment on this vitally important question.

The purpose of this post is to continue hammering away at this very narrow issue/question.

Does the United States have the right to deem a person born outside the United States to be a U.S. citizen? Can the United States forcibly impose citizenship on a person NOT born in the United States?

To be more specific, I understand that the United States has the right to offer U.S. citizenship to anybody who it wants. The question is whether the United States can force a person (who has not accepted U.S. citizenship) to be a U.S. citizen. Given that the United States is “Hunting For Citizens Abroad”, this is an important question. I have written on this topic before here and here.

This is an attempt to explore the question form from the possible perspectives of: Congress, the State Department, U.S. Courts and legal scholars. I then conclude by asking the questions of whether:

– those unknowingly registered as U.S. citizens by parents should have the right to “reject” U.S. citizenship; and

– whether any forcible imposition of U.S. citizenship on the citizens of other countries could be a violation of international law.

Here we go …

A. What the relevant U.S. law – AKA Congress says …

The relevant statutes are found S. 301 – S. 309 of the Immigration and Nationality Act. It is significant that the statute begins with the language:

The following shall be nationals and citizens of the United States at birth:

At first blush, it appears that Congress is deeming certain people born outside the United States to be U.S. citizens. This would mean that they have no choice. The simple fact of having been born abroad, to U.S. citizens who meet the “residency requirement”, automatically makes one a U.S. citizen. Does the U.S. Government in fact interpret this to mean “forced citizenship”?

B. What the Executive – AKA State Department says

A careful reading of what the State Department says suggests that:

The fact of having been born abroad to U.S. citizens who have met the residency requirements means that the person is entitled to but is NOT required to accept U.S. citizenship.

Two references to State Department documents:

1. See the U.S. Citizenship and Immigration Services Policy Manual Sections 301 – 309.

This is an excellent State Department summary of S. 301 – S. 309 of the Immigration and Nationality Act. It starts as follows:

A. General Requirements for Acquisition of Citizenship at Birth​

In general, a person born outside of the United States may acquire citizenship at birth if (reproduced at the end) …*​

​Note that the general provision uses the language “may acquire citizenship at birth”. Subsequent provisions use the language “acquires citizenship at birth”.

2. See 7 FAM 1130 – Foreign Affairs Manual – Acquisition of U.S. citizenship by birth abroad to to U.S. Citizen Parent“.

It’s interesting that the manual uses the phrase “right to citizenship”. It doesn’t say “fact of citizenship”. This strikes me as a very strong indication that the State Department views the “U.S. citizenship” as something the State Department is required to give but that the person is NOT obligated to accept.

3. What the courts say – a possible interpretive aid …

On June 5, 2015, a U.S. D.C. Court of Appeal wrote an opinion suggesting:

A post from the Isaac Brock Society introduces the issue with this question:

Can the United States be justified in imposing, without informed consent, U.S. citizenship on a group of persons, especially “never-meaningfuls”, who do not want U.S. citizenship?

The post includes some interesting quotes from the ruling:

Can the United States be justified in imposing, without informed consent, U.S. citizenship on a group of persons, especially “never-meaningfuls”, who do not want U.S. citizenship?

Here below are a few quotes from a June 5, 2015 United States D.C Court of Appeal ruling, on the question of citizenship status of residents of American Samoa, that bear somewhat on this question.

[Back in August 2014, Eric discussed this lawsuit, recently ruled on in D.C. Court of Appeals. As Eric comments below, there is a focus in the ruling on “collective” consent which sidesteps the issue — but this does raise the question whether it could ever be feasible for U.S. people overseas (perhaps beginning with those in Canada for example) to express, and insist on, their self-determination and rights through their own collective association — that need not be part of any U.S. political process. Probably not practical, but are we not a “people”?]

A FEW QUOTES FROM THE RULING:

“BROWN (Senior Circuit Judge): In our constitutional republic, Justice Brandeis observed, the title of citizen is superior to the title of President. Thus, the questions “[w]ho is the citizen[?]” and “what is the meaning of the term?” Aristotle, Politics bk. 3, reprinted in part in READINGS IN POLITICAL PHILOSOPHY 55, 61 (Francis W. Coker ed., 1938), are no less than the questions of “who constitutes the sovereign state?” and “what is the meaning of statehood as an association?”

“We can envision little that is more anomalous, under modern standards, than the forcible imposition of citizenship against the majoritarian will.”

“We hold it anomalous to impose citizenship over the objections of the American Samoan people themselves, as expressed through their democratically elected representatives.”

“A republic of people “is not every group of men, associated in any manner,[it] is the coming together of . . . men who are united by common agreement . . .” [MARCUS TULLIUS CICERO]”

“See, e.g., U.N. Charter arts. 1,73 (recognizing self-determination of people as a guiding principle and obliging members to “take due account of the political aspirations of the peoples” inhabiting non-self-governing territories under a member’s responsibility); Atlantic Charter, U.S.-U.K., Aug. 14, 1941 (endorsing“respect [for] the right of all peoples to choose the form of government under which they will live”); Woodrow Wilson,President, United States, Fourteen Points, Address to JointSession of Congress (Jan. 8, 1918) (“[I]n determining all []questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.”)”

“In this manner, we distinguish a republican association from the autocratic subjugation of free people. And from this, it is consequently understood that democratic “governments . . . deriv[e] their [] powers from the consent of the governed,”

“Citizenship is the effect of [a] compact[;] . . . [it] is a political tie.”
[Talbot v. Jansen]”

“The fabric of American empire ought to rest on the solid basis of the consent of the People.”

— Also, some thoughts on citizenship from an anonymous commenter on Townsend’s Federal Tax Crimes blog: “…If you’re a Canadian citizen under Canadian laws what difference does it make that some foreign laws classify you as a citizen of that foreign country? The boundary of the U.S.A. is the boundary of the U.S.A. Just say NO and stay in Canada. Why should you visit a foreign country’s diplomatic mission and pay a fee to renounce a citizenship that foreign country unilaterally inflicted upon you? Just say NO.”

4. What scholars say on the question of “Is availing oneself of an attribute to U.S. nationality sufficient to impose U.S. citizenship on a person born outside the USA?”

The above tweet references the following comment by Andrew Grossman which was reposted by Just Me.


Just Me introduced the topic by writing:

On this subject, I saw an interesting comment by Andrew Grossman on Linkedin, that I thought I would copy and paste over here…

It was part of this linkedin discussion around the subject of Offshore Tax Planning and World Wide Taxation http://lnkd.in/s7w2QE

Andrew Grossman • I’ve referred earlier to a woman I know who had a baby recently in London. On her behalf I had an exchange of emails with the State Department as to whether the baby is a US national, something that would depend upon proving facts of residence of about 40 years ago. The answer was: ‘Maybe’ (i.e, the baby is or isn’t but it depends on proof of those facts, or some adjudicator’s judgment on them). Since there is no evident need for the baby to have a US passport and is unlikely to live in the USA the question is this: imagine the baby inherits ‘lotsa money’. Could and should and would the IRS seek a determination by the State Dept or an immigration court of the baby’s status as a US person? I think not: the agency has no standing. In fact I would maintain that only a person who has availed himself at some time of an attribute of US nationality can be so pursued. Compare Rev. Rul. 75-357, PLR 8138071.

(As it happens, it seems that under international law a state may impose its nationality upon a person without his or a parent’s consent only at birth or adoption (formerly also upon marriage). That seems to be the reason for the Rev. Rul. I cited.)

One problem is that the tax law on ‘expatriation’ does not relate to US nationality alone. I’ve mentioned a person I knew who gave up a green card to become a staff member of an international organization, with diplomatic privileges, and later left the US completely to take up a senior position with his own government. I suspect that Boris Johnson if a British PM (and a certain Canadian minister too) would not be forced to use a US passport on an official US visit. Diplomatic pragmatism often trumps law: http://www.uniset.ca/other/news/wp_ronaldanderson.html

Garry Davis http://www.linkedin.com/pub/garry-davis/9/b40/239 renounced his US nationality in favor of his invented “world citizenship” but he eventually decided to come back to the US and apparently got an immigrant visa to do so. I suspect that many or most expatriates and accidental Americans will, unlike Garry, stay away.

For me the interesting question is this: how far will foreign governments go in practice to assist the USG in pursuing claims against dual nationals who have fully complied with their other country’s laws and paid all tax, and at higher rates than the US imposes: meaning that the IRS claim would be for ‘penalties’.

The USG, by the way, is not alone in exorbitant, or at least surprising, claims of taxability. The Robert Gaines-Cooper case is a harbinger of what’s to come: http://www.guardianwealthmanagement.com/uk-taxman-successfully-takes-on-british-expats-over-non-dom-90-day-rule/

5. An interesting question: Assuming that a U.S. Passport are certificate of birth abroad are “attributes of U.S. citizenship”, can the child be punished for the sins and bad judgment of the parent?

Nobody chooses where they are born. There are few (if any) countries that attempt to control the lives of its citizens living abroad. What the United States calls “citizenship based taxation” is primarily a form of “life control”. Therefore, the decision of a parent to register the child as a “U.S. citizen” is of great significance and will subject the child to disabilities to which citizens of no other nation are subject.

Given the facts that:

– the child was born outside of the United States; and
– that the child is likely to be a citizen of another nation

it seems reasonable that a parent should NOT have the right to impose U.S. citizenship on a child who has NO understanding of what the obligations and disabilities of U.S. citizenship mean.

At the present time, a parent is NOT permitted to renounce U.S. citizenship on behalf of a person who does not understand the consequences of losing U.S. citizenship. Why should a parent then be permitted to impose citizenship on a child who has no idea what it means?

Given the current meaning of U.S. citizenship, I suggest that those who are somehow “registered administratively as U.S. citizens” as minors, should be able to administratively reject (not renounce) U.S. citizenship as young adults.

In addition: This option should be written into the Immigration and Nationality Act and MUST say that the administrative rejection of U.S. citizenship is for the purposes of ALL U.S. laws, regulations and policies including the Internal Revenue Code (past, present and future). In other words, this option must be included as part of the definition of citizenship. The right to renounce is NOT adequate. One can only renounce citizenship if one is a U.S. citizen.

6. Given that U.S. “citizenship based taxation” is a mechanism to impose taxation on the citizens and residents of other nations, is U.S. “citizenship based taxation” a violation of international law?

There are many who would accept that the United States is free to decide who its citizens are. That doesn’t mean that it can decide how its citizens are required to behave when they are citizens and residents of other countries. It has become very clear that U.S. citizenship based taxation is a tax on any country where a U.S. citizen resides.

The U.S. claims the right to levy taxes on:

– those who are citizens and residents of other nations; and

– on income earned in those other nations.

Consider this:

The Obama administration is attempting to sign the TPP agreement with a group of nations. At the same time it reserves the right to levy taxes on the citizens of those other nations. To put it simply:

U.S. citizenship based taxation is actually a weapon of modern warfare. When will the rest of the world smarten up?

_______________________________________________________________________________________________________

*Excerpts from the U.S. citizenship policy manual

A. General Requirements for Acquisition of Citizenship at Birth​

A person born in the United States who is subject to the jurisdiction of the United States is a U.S. citizen at birth, to include a person born to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.​ [1]

In general, a person born outside of the United States may acquire citizenship at birth if:​

•The person has at least one parent who is a U.S. citizen; and​

•The U.S. citizen parent meets certain residence or physical presence requirements in the United States or an outlying possession prior to the person’s birth in accordance with the pertinent provision.​ [2] ​

A person born abroad through Assisted Reproductive Technology (ART) to a U.S. citizen gestational mother who is not also the genetic mother acquires U.S. citizenship at birth under ​INA 301​ or ​INA 309​ if:​

•The person’s gestational mother is recognized by the relevant jurisdiction as the child’s legal parent at the time of the person’s birth; and​

•The person meets all other applicable requirements under either ​INA 301​ or ​INA 309​.​ [3]

Until the Act of October 10, 1978, persons who had acquired U.S. citizenship through birth outside of the United States to one U.S. citizen parent had to meet certain physical presence requirements to retain their citizenship. This legislation eliminated retention requirements for persons who were born after October 10, 1952. There may be cases where a person who was born before that date, and therefore subject to the retention requirements, may have failed to retain citizenship.​ [4]

An officer should determine whether a person acquired citizenship at birth by referring to the applicable statutory provisions and conditions that existed at the time of the person’s birth. These provisions have been modified extensively over the years.​ [5] The following sections provide the current law.​


B. Child Born in Wedlock​ [6]


1. Child of Two U.S. Citizen Parents​ [7]

A child born outside of the ​United States​ and its outlying possessions acquires citizenship at birth if at the time of birth:​

•Both of the child’s parents are U.S. citizens; and​

•At least one parent had resided in the United States or one of its outlying possessions.​


2. Child of U.S. Citizen Parent and U.S. National​ [8]

A child born outside of the ​United States​ and its outlying possessions acquires citizenship at birth if at the time of birth:​

•One parent is a U.S. citizen and the other parent is a U.S. national; and​

•The ​U.S. citizen parent was physically present in the United States or one of its outlying possessions for a continuous period of at least one year. ​


3. Child of U.S. Citizen Parent and Foreign National Parent​ [9]

A child born outside of the ​United States​ and its outlying possessions acquires citizenship at birth if at the time of birth:​

•One parent is a foreign national and the other parent is a U.S. citizen; and​

•The U.S. citizen parent was physically present in the United States for at least ​5 ​years, including at least ​2 ​years after 14 years of age.​

Time abroad counts as physical presence in the United States if the time abroad was:​

•As a member of the U.S. armed forces in honorable status;​

•Under the employment of the U.S. government or other qualifying organizations; or​

•As a dependent unmarried son or daughter of such persons.​


4. Child of a U.S. Citizen Mother and Foreign National Father​ [10]

A child born outside of the United States and its outlying possessions acquires citizenship at birth if:​

•The child was born before noon (Eastern Standard Time) May 24, 1934;​

•The child’s father is a foreign national;​

•The child’s mother was a U.S. citizen at the time of the child’s birth; and​

•The child’s U.S. citizen mother resided in the United States prior to the child’s birth.​


C. Child Born Out of Wedlock​ [11]

Child of a U.S. Citizen Father ​

The provisions listed above​ [12] for a child born in wedlock apply to a child born out of wedlock outside of the United States claiming citizenship through a U.S. citizen father if:​

•A blood relationship between the child and the father is established by clear and convincing evidence;​

•The child’s father was a U.S. citizen at the time of the child’s birth; ​

•The child’s father (unless deceased) has agreed in writing to provide financial support for the child until the child reaches 18 years of age; and​

•One of the following criteria is met before the child reaches 18 years of age:​

The child is legitimated under the law of his or her residence or domicile;​

The father acknowledges in writing and under oath the paternity of the child; or​

The paternity of the child is established by adjudication of a competent court.​

In addition, the residence or physical presence requirements contained in the relevant paragraph of INA 301 continue to apply to children born out of wedlock claiming citizenship through their fathers.​

Child of a U.S. Citizen Mother ​

A child born out of wedlock outside of the United States and its outlying possessions acquires citizenship at birth if:​

•The child was born after December 23, 1952;​

•The child’s mother was a U.S. citizen at the time of the child’s birth; and​

•The child’s U.S. citizen mother was physically present in the United States or outlying possession for one continuous year prior to the child’s birth.​ [13]


D. Application for Certificate of Citizenship (​Form N-600​)​

A person ​born abroad ​who ​acquires​ ​U.S. ​citizenship ​at birth ​is not required to file an Application for Certificate of Citizenship (​Form N-600​). A person who seeks documentation of such status, however, must submit an application to obtain a Certificate of Citizenship from USCIS. A person may also apply for a U.S. Passport with the Department of State to serve as evidence of his or her U.S. citizenship​.​ [14]

A person who is at least 18 years of age may submit the Application for Certificate of Citizenship on his or her own behalf. If the application is for a child who has not reached 18 years of age, the child’s ​U.S.​ citizen ​parent or ​legal guardian must submit the application.​ [15]

USCIS will issue a proof of U.S. citizenship in the form of a Certificate of Citizenship if the Application for Certificate of Citizenship is approved and the person takes the Oath of Allegiance, if required to do so.​ [16]


E. Citizenship Interview and Waiver​

In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. This includes the ​U.S.​ citizen parent or​ legal ​guardian​ if the application is filed on behalf of a child under 18 years of age.​ [17] USCIS, however, may waive the interview requirement if all the required documentation necessary to establish the applicant’s eligibility is already included in USCIS administrative records​,​ or if the ​application is accompanied by one of the following:​

•Department of State Form FS​-​240 (​Consular ​Report of Birth Abroad of a ​U.S. ​Citizen​)​;​

•A​pplicant’s ​unexpired U​.S. Passport ​issued initially for a full five​ or ​ten-year period​;​ or​

•Certificate of N​aturalization of the ​applicant’s parent​ or parents​.​ [18]


F. Decision and Oath of Allegiance​


1. Approval of Application, Oath of Allegiance, and Waiver for Children under 14 Years of Age ​

If an officer approves the Application for Certificate of Citizenship, USCIS administers the Oath of Allegiance before issuing a Certificate of Citizenship.​ [19]

However, the INA permits USCIS to waive the taking of the Oath of Allegiance if USCIS determines the person is unable to understand its meaning.​ [20] USCIS has determined that children under the age of 14 are generally unable to understand the meaning of the oath. ​

Accordingly, USCIS waives the oath requirement for a child younger than 14 years of age. If USCIS waives the oath requirement, USCIS issues a Certificate of Citizenship after the officer approves the application.​


2. Denial of Application​

If an officer denies the Certificate of Citizenship application, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice.​ [21] An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).​

Footnotes

1. [^]

​ See ​INA 301(a)​ and ​INA 301(b)​. Children of certain diplomats who are born in the United States are not U.S. citizens at birth because they are not subject to the jurisdiction of the United States. See ​8 CFR 101.3​.​

2. [^]

​ ​Any time spent abroad in the U.S. armed forces or other qualifying organizations counts towards that physical presence requirement. See ​INA 301(g)​.​

3. [^]

​ ​For a more thorough discussion, see Chapter 2, Definition of Child for Citizenship and Naturalization, Section E, Child Born Abroad through Assisted Reproductive Technology [​12 USCIS-PM H.2(E)​]​.​

4. [^]

​ The Act of October 10, 1978, Pub. L. 95-432, repealed the retention requirements of former INA 301(b). The amending legislation was prospective only and did not restore citizenship to anyone who, prior to its enactment, had lost citizenship for failing to meet the retention requirements.​

5. [^]

​ Officers should use the Nationality Charts to assist with the adjudication of these applications.​

6. [^]

​ See ​INA 301​. See ​Nationality Chart 1​.​

7. [^]

​ See ​INA 301(c)​. ​

8. [^]

​ See ​INA 301(d)​.​

9. [^]

​ See ​INA 301(g)​.​

10. [^]

​ See ​INA 301(h)​.​

11. [^]

​ See ​INA 309​. See ​Nationality Chart 2​. ​

12. [^]

​ See ​INA 301(c)​, ​INA 301(d)​, ​INA 301(e)​, and ​INA 301(g)​.​

13. [^]

​ See ​INA 309(c)​.​

14. [^]

​ See ​8 CFR 341.1​.​ ​The Secretary of State has jurisdiction over claims of U.S. citizenship made by persons who are abroad, and the Secretary of Homeland Security has jurisdiction over the administration and enforcement of the INA within the United States. See ​INA 103(a)(1)​ and ​INA 104(a)(3)​. There is nothing precluding USCIS from accepting a Form N-600 filed under​ INA 301​ or ​INA 309​ by a person who does not live in the United States. See ​INA 341(a)​.​

15. [^]

​ ​See ​8 CFR 341.1​.​

16. [^]

​ See Section F, Decision and Oath of Allegiance [​12 USCIS-PM H.3(F)​]. See ​8 CFR 341.5(b)​.​

17. [^]

​ See ​8 CFR 341.2(a)(2)​.​

18. [^]

​ See ​8 CFR 341.2(a)​.​

19. [^]

​ See ​INA 337(a)​. See ​8 CFR 341.5(b)​. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance [​12 USCIS-PM J.2​].​

20. [^]

​ See ​INA 337(a)​. See ​8 CFR 341.5(b)​.​

21. [^]

​ See ​8 CFR 341.5(d)​ and ​8 CFR 103.3(a)​

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