Divorcing the United States: Two Methods – Renunciation and Commission of an Expatriating Act with “Intent”

This post is a sequel to “Expatriation – Giving up US Citizenship – Will I be Banned from Re-entering the USA?” my earlier blog post analyzing the so-called “Reed Amendment”.  As discussed in that post, since the statutory language of the Reed Amendment applies only to those who “officially renounce” United States citizenship it may be better to “relinquish” one’s US citizenship by an expatriating act that is NOT a renunciation in order to avoid application of the Reed Amendment. While this makes logical sense, the theory has never been tested in practice. However, if the individual can relinquish US citizenship by way of an expatriating act, this would seem a safer option, at least insofar as the statutory language of the law stands today.

With this background, today’s post will briefly explain the two methods through which an individual can lose his or her US citizenship.

US citizenship can be relinquished in one of two ways. One method is by “renouncing” US citizenship; the other method is by committing a so-called “expatriating act” with the intent to give up one’s US citizenship.  These potentially expatriating acts are described in Section 349(a) of the Immigration and Nationality Act (INA) (codified at 8 U.S.C. 1481(a)).

Renunciation

A “renunciation” is the only way of “relinquishing US citizenship” that involves the participation of the US government. “Renunciation” of one’s citizenship is done by making a formal sworn declaration before a US diplomatic or consular officer renouncing one’s US citizenship. The procedures for renunciation are rather straightforward. Diplomatic and consular officers follow certain steps that are outlined simply and methodically.  The steps are designed to ensure the individual fully understands the irrevocable nature of his act and that he does this voluntarily.

These requirements that the renunciation be made with full understanding and that it be voluntary lead to special issues in the case of children and adults who are mentally challenged. The renunciation of one’s citizenship is regarded as a personal elective right that cannot be exercised by another person. Parents or guardians cannot renounce or relinquish the US citizenship of a child or mentally challenged adult.  The US Consular offices and Embassies recognize that in the case of minors who seek to renounce citizenship, it is often being done at the urging of or under pressure from a parent(s).  This pressure can sometimes be so overwhelming that it will destroy the free will of the minor such that the act of expatriation cannot be committed “voluntarily”. 

Potentially Expatriating Acts

Potentially expatriating acts will constitute a “relinquishment” of one’s US citizenship ONLY if the act is done with the intention of relinquishing one’s US citizenship. The types of potentially expatriating acts have changed over time. These acts do NOT take place in the presence of a US consulate or embassy. Under current law, potentially expatriating acts include (but are not limited to): becoming a naturalized citizen of another country, engaging in certain forms of foreign government employment, and taking certain oaths of allegiance to a foreign country.

These types of potentially expatriating acts of “relinquishment” take place outside the US consulate or embassy and are not subject to the same rigidity and predictability of procedure. Therefore, these other forms of “relinquishment” of US citizenship are considered to be more complex and are not as well understood. Much uncertainty surrounds this area since the individual’s voluntariness and intent must be established.

An individual’s commission of a potentially expatriating act will result in relinquishment of US citizenship only if the act is performed (1) voluntarily and (2) with the intention of relinquishing US citizenship. Thus, two coinciding elements must be established and they must exist at the same time: the specific intent to relinquish US citizenship coupled with voluntarily undertaking the “expatriating” act.  The actual facts and circumstances surrounding the situation will be examined to determine if the evidence indicates the individual had the requisite intent to relinquish his US citizenship. The burden of establishing loss of citizenship is “upon the person or party claiming that such loss occurred,” in this case the applicant asserting an intent to relinquish citizenship when committing the potentially expatriating act. Under the INA, the standard of proof is a preponderance of the evidence; that is, it is more likely than not that the individual intended to relinquish citizenship.

The Department of State Foreign Affairs Manual 7 FAM 1222 describes the administrative presumption found in  the relevant regulations (22 CFR 50.40) that a US citizen/noncitizen national intends to retain US nationality when he or she commits certain expatriating acts.  Unless individual “affirmatively, explicitly, and unequivocally asserts that [the act] was performed with an intent to relinquish US nationality or the person has engaged in other conduct which is inconsistent with retention of US citizenship (see 7 FAM 1270 and 7 FAM 1280), he or she will retain US nationality.”

When the individual affirmatively, explicitly and unequivocally asserts that he performed the act with an intent to relinquish US nationality, the administrative presumption is then inapplicable.  The consular officer is required to fully develop the case, following specific guidelines and procedures.

Podcast

I was recently interviewed on the topic of the Reed Amendment and its impact in the brave new world of expatriations by John Richardson, a US and Canadian attorney.  The short podcast can be heard here.

Finally, while this blog post does not address the US tax issues relevant to an expatriation, my earlier blog posts (for example, this one) fully explore those matters.

Posted August 20, 2020

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