An alternative title for this post could be: “Hasn’t the State Department Heard About Zoom?”
What’s become of the right to relinquish one’s US citizenship? It has been thrown a curveball for the past year and a half. Many US Embassies and Consulates throughout the world are not offering the service. Those that did (or still do), often deny expatriation cases from individuals who are not resident in the country. Here in Dubai, I was successfully obtaining expatriation dates at the US Consulate provided the individual was resident in the United Arab Emirates. The US Consulate in Dubai has now just advised it is not providing expatriation services with the excuse being the “COVID-19 pandemic” and “Afghan refugee operations”.
The “Right” to Expatriate
Does an individual have a legally enforceable “right” to give up his US citizenship? Let’s have a little background. The US courts have recognized that each individual has a statutory right to expatriate. This view has been carefully developed for well over 100 years. The latest case was decided a scant two months ago in Gerald Lee Farrell v. Antony Blinken Secretary of State No. 19-5357 (DC Court of Appeals July 20, 2021). Farrell is a fascinating opinion and I urge readers to carefully examine it. Meanwhile let’s look as some earlier precedent:
In 1868, Congress recognized that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.” Act of July 27, 1868, ch. 249, 15 Stat. 223, 223 (discussed in the State Department Foreign Affairs Manual 7 FAM 1240 Appendix A Civil War Developments here and excerpted at the end of this post). As a consequence of this right, Congress provided “[t]hat any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is … inconsistent with the fundamental principles of this government.” Id. at 224.
What about cessation of expatriation services at the US consulates and embassies? Might this be an “instruction” or “decision” … “which denies, … the right of expatriation”? I would think so.
The Supreme Court has also recognized a citizen’s statutory right to expatriate. See Mandoli v. Acheson, 344 U.S. 133, 135 –37 (1952) (discussing statutes Congress enacted to effectuate “the individual’s right to expatriate,” of which the United States “became champion…”). See also Right of Expatriation, 9 Op. Att’y Gen. 356, 358 (1859) (“the general right, in one word, of expatriation, is incontestible” [sic]); Savorgnan v. United States, 338 U.S. 491, 497 (1950) (“Traditionally the United States has supported the right of expatriation as a natural and inherent right of all people.”); Nishikawa v. Dulles, 356 U.S. 129, 139 (1958) (Black, J., concurring) (“Of course a citizen has the right to abandon or renounce his citizenship”); Lozada Colon v. United States Dep’t of State, 2 F. Supp. 2d 43, 45 (D.D.C. 1998) (assuming that “an individual has a fundamental right to expatriate”).
Suing the State Department for Hindering the Right
What if the right to expatriate is hindered or made impossible because the State Department is not providing the service at its outposts? Does the wannabe expatriate have legal recourse?
The Association of Accidental Americans (AAA) seems to think so. AAA hopes to file a lawsuit against the State Department compelling it to adopt new expatriation procedures that will not entail having to go to a US consulate or embassy to relinquish US citizenship. The AAA requests financial support for its endeavor. The AAA survey and request for funding can be accessed here.
Perhaps the Farrell case can help bolster a position that an “in person” expatriation can be dispensed with in certain circumstances (COVID-19 etc. resulting in cessation of expatriation services being offered) if some other mechanism is put in place to ensure the individual fully understands the implications and consequences of expatriating as well as having reached the expatriation decision voluntarily and without duress. The Farrell court clearly recognized that the State Department “[h]as statutory discretion to impose procedural requirements such as an appearance in person.” However, the Farrell court has been critical of the State Department’s expatriation procedures in the past:
“This is not the first time we have found the [State] Department’s application of its expatriation standards wanting. See Fox, 684 F.3d at 78–79; see also Schnitzler, 761 F.3d at 35 (observing that the government denied Schnitzler a chance to renounce his citizenship ‘[f]or reasons [it] has failed to explain—or rather, for a host of everchanging reasons’).”
Now is the perfect time for the in-person renunciation procedures to change since these requirements are impossible to meet when the Embassies and Consulates stop providing the service.
The Law Does Not Mandate In-Person Renunciations
It is important to note the statute governing loss of US citizenship does not contain any requirement that the renunciation be made in person. The law leaves the procedural mechanism for renunciation up to the Secretary of State.
In relevant part the statute provides that loss of nationality will occur 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.” (emphasis mine).
Certainly other procedures can be implemented to enable the individual to relinquish US citizenship while ensuring the act is taken knowingly and voluntarily. Video-conferencing in conjunction with presentation of all relevant forms required by the State Department certainly seems a feasible mechanism in these times. It seems to me that individuals are being denied the fundamental right to give up US citizenship when the State Department’s procedures can clearly be adapted to address the current pandemic and other problems. While it may sound flippant – Hasn’t the State Department heard of Zoom?
US Tax Matters
The decision to expatriate must be carefully thought out and the individual’s particular US tax situation cannot be forgotten or taken lightly. The individual’s US tax returns for the 5 year period prior to the expatriation year should be carefully reviewed to make sure that US tax filings have been fully correct. If not, it behooves the individual to address any tax issues before expatriation and before the IRS may detect a problem, as this might prohibit corrections using one of the IRS penalty free programs to correct the tax noncompliance. In the worst case, tax noncompliance can result in the individual being treated as a so-called “covered expatriate” with all its onerous consequences. More details on this issue at my blog post here.
“Accidental Americans” who meet certain requirements have the opportunity to expatriate tax-free under a special IRS procedure. Full details here.
Need expatriation tax planning or assistance? I am here to help you with over 30 years of experience on this precise topic. From “simple” cases (trust me, they are never that “simple”) to family expatriations when net worth was well in the billions, I’ve got the knowledge and expertise you need.
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Excerpt from 7 FAM 1240 APPENDIX A CIVIL WAR DEVELOPMENTS
Then in the July 27, 1868 Act Concerning the Rights of American Citizens in Foreign States 15 Statutes at Large 223; 40th Congress, 2nd Session, Chapter 248, 249 1868, Congress enacted legislation declaring that expatriation is a natural and inherent right of all people.
|“WHEREAS the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas in the recognition of this principle this Government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore,
Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled,
That any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.”
Posted September 9, 2021
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