Relinquishment and the use of a US passport

 

There is much anxiety and uncertainty about how either applying for or using a U.S. passport will affect a claim of past relinquishment. Both applying for a U.S. passport and the use of a U.S. passport to enter the United States are related to 911. There are two ways this is related to the events of 911.

First: After 911 a passport was required to enter the United States. As you know, the passports of most countries include your place of birth. In general Canadian passports include your place of birth. Those Canadians with a U.S. place of birth, had this place of birth in their Canadian passports.

Second: The 14th Amendment of the U.S. Constitution states that anybody born in the U.S. is a U.S. citizen. In addition, U.S. immigration law requires U.S. citizens to both enter and leave the U.S. with a U.S. passport.

Therefore, once a U.S. border guard sees a U.S. place of birth in a Canadian passport he/she will have the following thought process:

– this person was born in the U.S. and is therefore a U.S. citizen (we know that is not necessarily true because S. 349(a) of the INA gives the grounds for relinquishing U.S. citizenship); and

– since this person is a U.S. citizen this person is required to travel on a U.S. passport.

As a result, many Canadian citizens with a U.S. birthplace were told in no uncertain terms that they were required  to have a U.S. passport in order to enter the U.S. A border guard is a “terrifying person” (they are the Homeland’s first line of defense). As a result, they went to the nearest U.S. consulate and applied for a U.S. passport. Their “intention” in applying for a U.S. passport was NOT to affirm any U.S. citizenship they may have had, but to secure a travel document they could use to travel to the U.S.

The U.S. Passport Application

(As a bit of “passport trivia”, you might find the site http://www.archives.gov/research/passport/ to be of interest.)

What follows is the most recent (as of March 2014) U.S. Passport application Form DS – 11 12-2010 used when applying for a new passport:

uspassportapplication

What follows is a second passport application form DS-82 12-2010 which can be used by those renewing an existing passport.

US passport application DS-82 12-2010

The question is: what does applying for a U.S. passport say about the applicant’s “intention” in relation to his/her U.S. citizenship? The current application for a U.S. passport includes the following interesting features:

– You are required to include a U.S. Social Security number, you acknowledge that your name and address will be forwarded to Treasury and that the failure to supply the Social Security number subjects you to a $500 fine (cheaper to pay the fine I think);

– They include the following interesting question (“Are you or have you ever been a spouse?” New passport application only);

– And now to the good stuff: You must submit proof of U.S. citizenship and represent that you are a U.S. citizen and represent that you have not committed any of the expatriating acts described in S. 349 of the INA (becoming a foreign citizen, work for foreign government, etc.). If you have committed an expatriating Act then you are required to provide additional information on the relevant circumstances surrounding that expatriating act. The obvious question being whether you committed the act with the intention of relinquishing U.S. citizenship. If you DID commit the act WITH THE INTENTION OF RELINQUISHING U.S. citizenship, then I suppose they would not issue you a U.S. passport (on the grounds that you could not be a U.S. citizen).

Previous U.S. Passport Application forms

The U.S. passport application form has changed over the years. I have been told that earlier U.S. passport applications did NOT necessarily require the affirmation that one had NOT committed an expatriating act.

Advice: Keep a copy of any “forms” needed to interact with the government. You never know when it might come in handy.

First – A reminder of the law of relinquishment

The law of relinquishment is found primarily in S. 349(a) of the Immigration and Nationality Act. It reads as follows:

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.

The relevant question is whether the “expatriating act” was performed with the intention of relinquishing U.S. citizenship. For practical purposes, the “passport issue” will be considered only when a U.S. citizen claims to have performed an “expatriating  act” with the intention of relinquishing U.S. citizenship.

How U.S. passport use bears on the intention to relinquish citizenship

It is observed that “passport use” is NOT mentioned. Therefore, the application or use of a U.S. passport is relevant to “relinquishment” only to the extent it bears on the intention with which a relinquishing act was performed.

Let’s take the example of a U.S. citizen becoming a naturalized citizen of Canada. The questions are:

1. Did the person become a citizen of Canada with the intention of relinquishing U.S. citizenship?; and

2. How does the use (or application for) of a U.S. passport provide evidence of that intention?

Continued  use  of a pre-existing U.S. passport after becoming Canadian

Each case is decided on its merits. Here are examples going both ways:

Advice: Although you may regard a U.S. passport as nothing more than a travel document, the State Department is likely to regard it as an affirmation of U.S. citizenship.

Therefore: When you become a Canadian citizen, you should (1) stop using your U.S. passport; and (2) immediately apply for and use a Canadian passport.

Application for a U.S. passport after becoming a Canadian citizen

Each case is decided on its merits. Here are examples going both ways:

Advice: Although you may regard a U.S. passport as nothing more than a travel document, the State Department is likely to regard it as an affirmation of U.S. citizenship.

Therefore: When you become a Canadian citizen, you should (1) never ever apply for a U.S. passport; and (2) apply for a Canadian passport.

Passport use and seeking a Certificate of Loss of Nationality

The issue of passport use will come up when you have completed Form 4079 (form to determine possible loss of citizenship) and you are having your consulate interview. You must remember that it is NOT the use of a U.S. passport per se that is the issue. The issue is:

How does the use of the U.S. passport bear on whether you became a Canadian citizen with the requisite intention of relinquishing U.S. citizenship. You will be questioned about your use of or application for a U.S. passport.

Appealing a denial of loss of U.S. nationality

If the consulate officer denies your request for a finding of loss of nationality, you may be asked if you want to renounce U.S. citizenship. You must remember two things:

1. You do have the right to appeal the decision of the consulate officer; and

2. If  you “renounce U.S. citizenship” the provisions of S. 877A of the Internal Revenue Code “kick in”. This means that a present day renunciation of U.S. citizenship will trigger the IRS/Exit tax rules.

Therefore: If you are denied the recognition of your past relinquishment, you should appeal the decision of the consulate officer and do NOT renounce U.S. citizenship on the spot.

 

 

 

 

 

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