Advice about Possible Loss of U.S. Nationality and Dual Nationality

From the State Department’s site: http://travel dot state dot gov/content/travel/en/legal-considerations/us-citizenship-laws-policies/citizenship-and-dual-nationality.html

The Department of State is responsible for determining the nationality status of a person located outside the United States or in connection with the application for a U.S. passport while in the United States.  Section 101(a)(22) of the Immigration and Nationality Act (INA) states that “the term ‘national of the United States’ means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.”  Therefore, U.S. citizens are also U.S. nationals.  Non-citizen nationality status refers only to individuals who were born either in American Samoa or on Swains Island to parents who are not citizens of the United States.

Potentially Expatriating Acts

Section 349 of the INA (8 U.S.C. 1481), as amended, states that U.S. nationals are subject to loss of nationality if they perform certain specifiedacts voluntarily and with the intention to relinquish U.S. nationality. Briefly stated, these acts include:

  1. obtaining naturalization in a foreign state upon one’s own application after the age of 18 (Sec. 349 (a) (1) INA);
  2. taking an oath, affirmation or other formal declaration of allegiance to a foreign state or its political subdivisions after the age of 18 (Sec. 349 (a) (2) INA);
  3. entering or serving in the armed forces of a foreign state engaged in hostilities against the United States or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state (Sec. 349 (a) (3) INA);
  4. accepting employment with a foreign government after the age of 18 if (a) one has the nationality of that foreign state or (b) an oath or declaration of allegiance is required in accepting the position (Sec. 349 (a) (4) INA);
  5. formally renouncing U.S. nationality before a U.S. diplomatic or consular officer outside the United States (sec. 349 (a) (5) INA);
  6. formally renouncing U.S. nationality within the United States (The Department of Homeland Security is responsible for implementing this section of the law) (Sec. 349 (a) (6) INA);
  7. conviction for an act of treason against the Government of the United States or for attempting to force to overthrow the Government of the United States (Sec. 349 (a) (7) INA).

Administrative Standard of Evidence

As already noted, the actions listed above will result in the loss of U.S. nationality if performed voluntarily and with the intention of relinquishing U.S. nationality. The Department has a uniform administrative standard of evidence based on the premise that U.S. nationals intend to retain United States nationality when they obtain naturalization in a foreign state, declare their allegiance to a foreign state, serve in the armed forces of a foreign state not engaged in hostilities with the United States, or accept non-policy level employment with a foreign government.

Disposition of Cases when Administrative Premise is Applicable

In light of the administrative premise discussed above, a person who:

  1. is naturalized in a foreign country;
  2. takes a routine oath of allegiance to a foreign state;
  3. serves in the armed forces of a foreign state not engaged in hostilities with the United States, or
  4. accepts non-policy level employment with a foreign government,

and in so doing wishes to retain U.S. nationality need not submit prior to the commission of a potentially expatriating act a statement or evidence of his or her intent to retain U.S. nationality since such an intent will be presumed.

When, as the result of an individual’s inquiry or an individual’s application for registration or a passport it comes to the attention of a U.S. consular officer that a U.S. national has performed an act made potentially expatriating by INA Sections 349(a)(1), 349(a)(2), 349(a)(3) or 349(a)(4) as described above, the consular officer will simply ask the applicant if he/she intended to relinquish U.S. nationality when performing the act. If the answer is no, the consular officer will certify that it was not the person’s intent to relinquish U.S. nationality and, consequently, find that the person has retained U.S. nationality.

Persons Who Wish to Relinquish U.S. Nationality
If the answer to the question regarding intent to relinquish nationality is yes, the person concerned will be asked to complete a questionnaire to ascertain his or her intent toward U.S. nationality. When the questionnaire is completed and the voluntary relinquishment statement is signed, the consular officer will proceed to prepare a Certificate of Loss of Nationality of the United States.  The certificate will be forwarded to the Department of State for consideration and, if appropriate, approval.

An individual who has performed any of the acts made potentially expatriating by statute who wishes to lose U.S. nationality may do so by affirming in writing to a U.S. consular officer that the act was performed voluntarily with an intent to relinquish U.S. nationality. A U.S. national also has the option to formally renounce U.S. nationality abroad in accordance with INA Section 349 (a) (5) .

Disposition of Cases When Administrative Premise Is Inapplicable

The premise that a person intends to retain U.S. nationality is not applicable when the individual:

  1. formally renounces U.S. nationality before a consular officer;
  2. serves in the armed forces of a foreign state engaged in hostilities with the United States;
  3. takes a policy level position in a foreign state;
  4. is convicted of treason.

Cases in categories 2, 3 and 4 will be developed carefully by U.S. consular officers to ascertain the individual’s intent toward U.S. nationality.

Applicability of Administrative Premise To Past Cases

The premise established by the administrative standard of evidence is applicable to cases adjudicated previously. Persons who previously lost U.S. nationality may wish to have their cases reconsidered in light of this policy.

A person may initiate such a reconsideration by submitting a request to a U.S. embassy or consulate or by writing directly to:

Express Mail:

Director
Office of Legal Affairs (CA/OCS/L)
Bureau of Consular Affairs
U.S. Department of State
600 19th Street, N.W.- 10th Floor
Washington, D.C. 20431
Phone: 202-501-4444
Fax: 202-485-8033

Regular Mail

Director
U.S. Department of State
CA/OCS/L
SA-17, 10th Floor
Washington, D.C. 20522-1710

Each case will be reviewed on its own merits taking into consideration, for example, written statements made by the person at the time of the commission of the potentially expatriating act.

Loss of Nationality and Taxation

P.L. 104-191 contains changes in the taxation of U.S. nationals who renounce or otherwise lose U.S. nationality. In general, any person who lost U.S. nationality within 10 years immediately preceding the close of the taxable year, whose principle purpose in losing nationality was to avoid taxation, will be subject to continued taxation.

Copies of approved Certificates of Loss of Nationality of the United States are provided by the Department of State to the Internal Revenue Service pursuant to P.L. 104-191. Questions regarding United States taxation consequences upon loss of U.S. nationality should be addressed to the U.S. Internal Revenue Service.

Dual Nationality

Dual nationality means that a person is a national of two countries.  A person who is a dual national owes allegiance to both countries.  Dual nationality can occur as the result of a variety of circumstances. The automatic acquisition or retention of a foreign nationality, acquired, for example, by birth in a foreign country or through an alien parent, does not affect U.S. nationality.  U.S. law does not require a person to choose one nationality over the other. It is prudent, however, to check with authorities of the other country to see if dual nationality is permissible under local law. Dual nationality can also occur when a person is naturalized in a foreign state without intending to relinquish U.S. nationality and is thereafter found not to have lost U.S. nationality: the individual consequently may possess dual nationality. The U.S. Government does not encourage dual nationality. While recognizing the existence of dual nationality and permitting Americans to have other nationalities, the U.S. Government also recognizes the problems which it may cause. Claims of other countries upon U.S. dual-nationals often place them in situations where their obligations to one country are in conflict with the laws of the other. In addition, their dual nationality may hamper efforts of the U.S. Government to provide consular protection to them when they are abroad, especially when they are in the country of their second nationality.

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Title In State…

Article 17.

Title in State.

§ 146-79.  Title presumed in the State; tax titles.

In all controversies and suits for any land to which the State or any State agency or its assigns shall be a party, the title to such lands shall be taken and deemed to be in the State or the State agency or its assigns until the other party shall show that he has a good and valid title to such lands in himself.

In all controversies touching the title or the right of possession  of any lands claimed by the State or by any State agency under any sale for taxes at any time heretofore made or which hereafter may be made, the deed of conveyance made by the sheriff or other officer or person making such sale, or who may have been authorized to execute such deed, shall be presumptive evidence that the lands therein mentioned were, at the time the lien for such taxes attached and at the time of the sale, the property of the person therein designated as the delinquent owner; that such lands were subject to taxation; that the taxes were duly levied and assessed; that the lands were duly listed; that the taxes were due and unpaid; that the manner in which the listing, assessment, levy, and sale were conducted was in all respects as the law directed; that all the prerequisites of the law were duly complied with by all officers or persons who had or whose duty it was to have had any part or action in any transaction relating to or affecting the title conveyed or purported to be conveyed by the  deed, from the listing and valuation of the property up to the execution of the deed, both inclusive; and that all things whatsoever required by law to make a good and valid sale and vest the title in the purchaser were done, and that all recitals in such deed contained are true as to each and every of the matters so recited.

In all controversies and suits involving the title to real property claimed and held under and by virtue of a deed made substantially as above, the person claiming title adverse to the title conveyed by such deed shall be required to prove, in order to defeat such title, either that the real property was not subject to taxation for the year or years named in the deed, that the taxes had been paid before the sale, that the property had been redeemed from the sale according to the provisions of law, and that such redemption was had or made for the use or benefit of persons having the right of redemption under the laws of this State, or that there had been an entire omission to list or assess the property or to levy the taxes or to sell the property; but no person shall be permitted to question the title acquired under such sale and deed without first showing that he or the person under whom he claims title had title to the property at the time of the sale, and that all taxes due upon the property have been paid by such  person or the person under whom he claims title. (1842-3, c. 36, s. 3; R.C., c. 66, s. 24; Code, s. 2527; 1889, c. 243; Rev., s. 4047; C.S., s. 7617; G.S., s. 146-90; 1959, c. 683, s. 1.)

Making It Simple

This post will be a repository for snippets that can be used to educate those to whom the topic of citizenship and nationality seems too complicated (it is).

_________________________________________________

“Disposition of Cases when Administrative Premise is Applicable

In light of the administrative premise discussed above, a person who:

  1. is naturalized in a foreign country;
  2. takes a routine oath of allegiance to a foreign state;
  3. serves in the armed forces of a foreign state not engaged in hostilities with the United States, or
  4. accepts non-policy level employment with a foreign government,

and in so doing wishes to retain U.S. nationality need not submit prior to the commission of a potentially expatriating act a statement or evidence of his or her intent to retain U.S. nationality since such an intent will be presumed.”

also,

“In addition, please be aware that:
The U.S. Department of State and the U.S. Supreme Court have concluded that the intention to relinquish U.S. nationality required for purposes of finding loss of nationality under Section 349(a) of the INA does not exist where a renunciant claims a right to continue to reside in the United States, unless the renunciant demonstrates that residence will be as an alien documented properly under U.S. law.”
-travel dot state dot gov
_________________________________________________

From the U.S. Foreign Affairs Manual: 7 FAM 1100 ACQUISITION AND RETENTION OF U.S. CITIZENSHIP AND NATIONALITY:
“b. National vs. Citizen: While most people and countries use the terms “citizenship” and “nationality” interchangeably, U.S. law differentiates between the two. Under current law all U.S. citizens are also U.S. nationals, but not all U.S. nationals are U.S. citizens. The term “national of the United States”, as defined by statute (INA 101 (a)(22) (8 U.S.C. 1101(a)(22))includes all citizens of the United States, and other persons who owe allegiance to the United States but who have not been granted the privilege of citizenship:
(1)Nationals of the United States who are not citizens owe allegiance to the United States and are entitled to the consular protection of the United States when abroad, and to U.S. documentation, such as U.S. passports with appropriate endorsements. They are not entitled to voting representation in Congress and, under most state laws, are not entitled to vote in Federal, State, or local elections except in their place of birth. (See 7 FAM 012; 7 FAM 1300 Appendix BEndorsement 09.)”

Retaining Right of Residence When Shedding U.S. Citizenship

 This is from the “travel dot state dot gov” website, and is apparently written to disinform.  The writer uses “nationality” and “Citizenship” interchangeably, when they are not.  The title itself is where it starts; there is no right of residence in the U.S. if you lose your nationailty.  The implication is that losing your citizenship always means losing your nationality.  That is like saying that you can’t take off your shoes and leave your socks on.  Socks are nationality, shoes are citizenship.
All U.S. citizens are U.S. Nationals, but not all U.S. Nationals are U.S. Citizens.  Those in U.S. possessions are not allowed to vote and be a part of the working of the federal government.
________________________________________________
Renunciation of U.S. Nationality by Persons Claiming a
Right of Residence in the United States
Section 101(a)(22) of the Immigration and Nationality Act (INA) states that
“the term ‘national of the United States’ means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.”
Therefore, U.S. citizens are also U.S. nationals. Non-citizen nationality status refers only individuals who were born either in American Samoa or on Swains Island to parents who are not citizens of the United States. Section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481) governs how a U.S. citizen shall lose U.S. nationality. Section 349(a) states:
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:
(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.
Renunciation is the most unequivocal way in which a person can manifest an intention to relinquish U.S. nationality. Since nationality is a status that is personal to the individual U.S. national, it cannot be renounced by a parent or a legal guardian under any set of circumstances. Those contemplating a renunciation of U.S. nationality should understand that renunciation is irrevocable, except as provided in Section 351(b) of the INA , and cannot be cancelled or set aside absent a successful administrative or judicial appeal. Put another way, renunciation cannot be “taken back”, and it does not merely “suspend” nationality but irrevocably relinquishes it. Consequently, renunciation of U.S. nationality is not a step to be taken lightly and should be undertaken only after serious thought and reflection.
Pursuant to Section 358 of the INA, the renunciation of one’s U.S. nationality does not result in one’s expatriation until the Department of State approves a Certificate of Loss of Nationality of the United States (CLN). In order for a renunciation under Section 349(a)(5) of the INA to be effective, all of the conditions of the statute must be met. In other words, an individual wishing to renounce U.S. nationality must appear in person and sign an oath of renunciation before a U.S. consular or diplomatic officer abroad at a U.S. embassy or consulate.
Section 349(b) of the Act provides that:
Any person who has committed or performed any act of expatriation is 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.
In addition, please be aware that:
The U.S. Department of State and the U.S. Supreme Court have concluded that the intention to relinquish U.S. nationality required for purposes of finding loss of nationality under Section 349(a) of the INA does not exist where a renunciant claims a right to continue to reside in the United States, unless the renunciant demonstrates that residence will be as an alien documented properly under U.S. law.
Renunciations which are not in the form prescribed by the Secretary of State have no legal effect. Moreover, U.S. citizens cannot effectively renounce their citizenship by mail. Section 349(a)(6) provides for renunciation of U.S. nationality in the United States under certain narrow circumstances. Questions concerning renunciation of U.S. nationality under Section 349(a)(6) should be addressed to the Attorney General or the Department of Homeland Security. Persons who contemplate renunciation of U.S. nationality should be aware that they will experience a great deal of hardship unless they already possess a foreign nationality or are assured of acquiring another nationality shortly after completing their renunciation. In the absence of a second nationality, those individuals would become stateless. As stateless persons, they would not be entitled to the protection of any government. They might also find it difficult or impossible to travel as they would probably not be entitled to a passport from any country. Furthermore, a person who has renounced U.S. nationality will be required to apply for a visa to travel to the United States, just as other aliens do. If found ineligible for a visa, a renunciant could be barred from the United States. Renunciation of American nationality does not necessarily prevent a former national’s deportation from a foreign country to the United States as an alien. Persons considering renunciation should also be aware that the fact that they have renounced U.S. nationality may have no effect whatsoever on their U.S. tax or military service obligations. Nor will it allow them to escape possible prosecution for crimes which they may have committed in the United States, or repayment of financial obligations, such as child support payments, previously incurred in the United States or incurred as a United States national abroad. Questions about these matters should be directed to the government agency concerned. Individuals who have carefully considered the consequences attendant to the renunciation of U.S. nationality, y may contact a U.S. embassy or consulate for an appointment. Moreover, a person in possession of a U.S. passport who renounces U.S. nationality will be asked to submit that passport to the U.S. consular officer for cancellation. If the Department of State approves the CLN, the individual will be ineligible to receive a U.S. passport in the future unless he or she, like any other alien, subsequently naturalizes in the future as a U.S. citizen.
As previously stated, persons contemplating renunciation of U.S. citizenship are reminded that renunciation is irrevocable, except as provided in Section 351(b) of the INA (8 U.S.C. 1483), and cannot be cancelled or set aside absent a successful administrative or judicial appeal. If you have any questions, contact a U.S. consular officer at at a U.S. embassy or consulate. You may also contact the Department of State at:
Express Mail:
Director
Office of Legal Affairs (CA/OCS/L)
Bureau of Consular Affairs
U.S. Department of State
600 19th Street, N.W.- 10th Floor
Washington, D.C. 20431
Phone:
Fax: 202-485-8033
Regular Mail:
Director
U.S. Department of State
CA/OCS/L
SA-17, 10th Floor
Washington, D.C. 20522-1710
________________________________________________

“The U.S. Department of State and the U.S. Supreme Court have concluded that the intention to relinquish U.S. nationality required for purposes of finding loss of nationality under Section 349(a) of the INA does not exist where a renunciant claims a right to continue to reside in the United States,…”

This means that if you wish to drop U.S. citizenship, your express desire to stay in the geographic USA is an express desire to remain a U.S. national.  In this case, loss of citizenship does not have to happen outside of the geographic USA.

Here is a Word .doc of the article for easy download:

Right of Residence without Citizenship