Special Hurdles: Expatriation of Minors / Mentally Challenged Individuals

I am now frequently receiving more and more expatriation inquiries from the foreign parents of a child born in the United States while the parents were studying there or were otherwise in America on some other temporary basis. “Jus soli” (the law of the soil) is a rule of common law followed by the US, under which the place of a person’s birth determines his citizenship.  Increasing inquiries are also coming from parents of a child who was born overseas but to parents, only one of whom was a US citizen and who resided in the US for a certain time period before the child was born. In both of these cases, the children have acquired US citizenship “at birth”. In these sometimes frantic phone calls, the parents are protesting the child’s “involuntary” acquisition of US citizenship and want to know how soon it can be renounced.

In order to renounce one’s US citizenship, the individual must undertake the expatriation voluntarily and with the requisite intent to relinquish the rights and privileges of US citizenship.  As explored in this post, in the case of minors or mentally challenged individuals, these factors can prove to be troublesome.

Renouncing US Citizenship if the Individual is a Minor

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 who acquired his US citizenship at birth.  This means that only the individual child himself can renounce his US citizenship, but this is not so easy to do in the case of children. The US Consular offices and Embassies recognize that minors who seek to renounce citizenship often do so 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”.

Under guidelines issued by the Department of State, the younger the minor is at the time of renunciation, the more influence the parent is assumed to have. Consular officers are given strict guidelines to follow when a minor seeks to renounce his US citizenship.  Even when there is no evidence of parental inducements or pressure, the relevant Consular personnel must make a judgment whether the individual minor manifested the requisite maturity to appreciate the irrevocable nature of expatriation so that his action can be treated as one that was taken “voluntarily”.  In addition, it must be determined if the minor had the necessary intent to renounce his US citizenship. This will be found lacking if he did fully understand what he was doing. Under the guidelines issued by the Department of State, children under the age of 16 are presumed not to have the requisite maturity and knowing intent to undertake a renunciation of US citizenship.

Even if the consular report indicates a minor (16 or over, but under 18) had the necessary intent and renounced his citizenship voluntarily, the matter does not end there. A Certificate of Loss of US Nationality (CLN) must be issued by the Department of State approving the renunciation. A CLN for a minor will not be issued without the concurrence of various divisions of the Department of State and without the prior appropriate consultations.

Potentially Expatriating Acts and the Minor

Section 349 of the Immigration and Nationality Act currently provides that US citizens are subject to loss of citizenship if they perform certain specified acts voluntarily and with the intention to relinquish US citizenship. Several of these potentially expatriating acts are limited by specific provisions mandating that the individual must be over the age of eighteen years at the time the act is committed.  One example of such an act would be obtaining naturalization in a foreign country or taking an oath or affirmation or other formal declaration of allegiance to a foreign country. Significantly, there can be no finding of a loss of US nationality when these acts are committed by a person under the age of eighteen.  This often comes as a rude awakening to individuals born as US citizens who, while still minors, later naturalize as citizens of another country.  They have not lost their US citizenship.

Mental Incompetency Issues

If mental competency is an issue, special care must also be taken. An individual cannot lose US citizenship unless he has the legal capacity to form the specific intent necessary to give up his US nationality.  When the person has some type of mental incapacity, the question will arise whether the individual understands the seriousness of renunciation, including its irrevocable nature and the major consequences that flow from it. “Voluntariness” may also be an issue with persons who suffer from mental incapacity or impairment, as such individuals may be especially susceptible to the influence of others.

A court finding of mental incompetency, whether by a US or foreign court, will preclude a finding that the individual has the requisite intent to renounce his citizenship.  A parent, guardian or trustee cannot renounce the US citizenship on behalf of a mentally incompetent individual, since it is viewed as a personal right that cannot be exercised by any other person.

Aging and Mental Competence

After my colleague John Richardson read this blog post, he pointed out a very important issue that deserves mention here.  The aging process can result in situations which erode the capacity to form the necessary intent to relinquish one’s US citizenship.   While this is a difficult topic for families to address, it is an issue with real consequences especially when estate planning and estate tax matters come into play.

Parent or Guardian – What Should You Do?

Difficult expatriation cases require critical advance planning.

In cases when a minor or mentally challenged individual wishes to renounce US citizenship special and very sensitive considerations come into play.  In these cases, the individual should seek appropriate counsel as to what the US Consulate or Embassy will be looking for during an interview with the would-be renunciant and what factors are most important to the Department of State in approving the renunciation by issuance of that critical document, the CLN.

US tax planning in these cases is paramount. If the individual cannot expatriate currently, it is very important to structure his affairs to minimize any US tax bite during the time he remains a US citizen and in planning for a future expatriation.  It the individual is under a permanent mental incapacity such that renunciation will never be possible, then proper planning of US tax matters becomes even more critical.  A well-meaning parent or guardian may often look to trust structures to ensure the continued care of the child or mentally challenged individual. However, setting up a “foreign” (non-US) trust for such an individual may well be the worst action to take from a US tax planning perspective.  So much depends on the facts of the particular case.  The stakes are high.

I have handled numerous “difficult” expatriation cases and can provide you with all of the necessary advice. Let me know if you wish to arrange a consultation.

Posted September 8, 2022

 

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