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Loss of Citizenship and Dual Nationality

Written by Henry J. Chang

Introduction

Questions relating to loss of U.S. nationality usually arise in relation to issues of dual nationality. Therefore, this article will attempt to discuss loss of U.S. nationality within this context.

Dual Nationality

Each country defines the nationality status of its own citizens. As the laws of different countries do not necessarily coincide, it is often possible for a person to acquire two or more nationalities, either at the time of his birth or through the subsequent action of himself or others. This is known as dual nationality.

Whether a U.S. citizen loses U.S. citizenship upon becoming a foreign citizen will be determined by the laws of the United States. While there is currently no specific prohibition on dual nationality under U.S. law, certain acts relevant to the acquisition of foreign nationality may, in appropriate circumstances, result in a loss of U.S. nationality. The law relating to loss of U.S. nationality is discussed in detail below.

Whether an alien loses foreign citizenship upon becoming a U.S. citizen will be determined by the laws of the country of foreign citizenship. If the country of the alien's foreign citizenship does not permit acquisition of dual nationality, foreign citizenship may be lost when the alien becomes a U.S. citizen. As dual nationality often arises within the context of U.S.-Canadian dual nationality, the law of Canada relating to loss of citizenship will be briefly discussed as well.

Loss of U.S. Nationality

Loss of nationality, also known as expatriation, means the loss of citizenship status properly acquired, whether by birth in the United States, through birth abroad to U.S. citizen parents, or by naturalization. As a result of several constitutional decisions, §349(a) of the current Immigration and Nationality Act ("INA") provides that U.S. nationality is lost only when the U.S. citizen does one of the specified acts described in INA §349, voluntarily and with the intent to give up that nationality. If any one of these requirements is lacking, nationality is not lost.

Acts not specified in INA §349 do not result in expatriation. For example, acquisition of foreign nationality at birth will not result in expatriation. However, two expatriating acts contained in INA §349 are relevant to the issue of dual nationality. They are:

  1. obtaining naturalization in a foreign state upon the citizen's own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; and

  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.

Where such expatriating acts are performed, it is important to consider the issues of voluntariness and intention to relinquish U.S. citizenship. The full text of INA §349 is reproduced here.

Loss of U.S. citizenship can result only from the citizen's voluntary actions. This is because termination of citizenship without voluntary action on the part of the citizen would deprive the citizen of freedom of choice and would likely be a denial of due process. This requirement was made explicit by a 1986 amendment of the statute (Immigration and Nationality Act Amendments of 1986, Pub. L. No. 99-653, §18, 100 Stat. 3655). There is no dispute that citizenship will not be lost where the U.S. citizen performs an act of expatriation under circumstances involving duress, mistake, or incapacity negating a free choice. The courts have been very generous in accepting claims of coercion where the U.S. citizen's actions were compelled by fear of injury, retaliation, imprisonment, fine, economic deprivation, and like consequences. Freedom of choice is also negated where the citizen performs an expatriating act after receiving erroneous advice from U.S. government officials. A person who is unaware of a claim to U.S. citizenship at the time that an expatriating act is performed likewise does not have an opportunity to make a free choice.

Closely related to need for voluntary action is the requirement that expatriation cannot be accomplished by a citizen who has not attained a specified age of maturity. This conforms with the common law maxim that an infant lacks legal capacity to undertake contractual obligations. Legal maturity generally considered to be the age of 21, unless a different age is specially stated. Paragraphs (1), (2), (4) of INA §349(a) specifically fix the age of maturity at 18. In addition, INA §351(b) fixes the age of maturity at 18 for paragraphs (3) and (5) of INA §349(a). The text of INA §351(b) is as follows:

A national who within six months after attaining the age of eighteen years asserts his claim to United States nationality, in such manner as the Secretary of State shall by regulation prescribe, shall not be deemed to have lost United States nationality by the commission, prior to his eighteenth birthday, of any of the acts specified in paragraph (3) and (5) of section 349 of this title.

These special provisions do not apply to acts of expatriation not specifically mentioned, and the age of maturity in relation to such other acts of expatriation generally continues to be the common-law standard of 21 years.

Not only must the U.S. citizen perform an expatriating act voluntarily, but he or she must also intend to relinquish U.S. citizenship as a result of such voluntary act. Prior to the landmark decision in Afroyim v. Rusk 387 U.S. 253, 87 S. Ct. 16601118 L. Ed. 2d 757 (1967), previous U.S. Supreme Court decisions had ruled that the statutory grounds for loss of nationality were stated in objective terms, and that persons who voluntarily perform acts of expatriation designated by statute lost their citizenship, irrespective of whether they intended to surrender it. However, in Afroyim, the majority of the court held that relinquishment of U.S. citizenship had to be voluntary and concluded as follows:

We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.

Nine years later, the U.S. Supreme Court in Vance v. Terrazas 444 U.S. 252, 100 S. Ct. 5401162 L. Ed. 2d 461 (1980) unanimously reaffirmed the principle stated in Afroyim.

According to INA §349(b), whenever the loss of U.S. nationality is put in issue, the burden falls 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 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. The constitutionality of these provisions was upheld in Terrazas. However, the Court also found that the statutory presumption was applicable only to the voluntariness of the expatriating act itself. In finding that intention to surrender citizenship was a necessary element of expatriation, the Court in Terrazas ruled that such intention could not be presumed and that the government was required to establish such an intention by a preponderance of the evidence.

Congress subsequently adopted the Terrazas principle in the Immigration and Nationality Act Amendments of 1986, Pub. L. No. 99-653, §18, 100 Stat. 3655, by specifying that the acts of expatriation listed in the statute would terminate citizenship only if voluntarily performed "with the intention of relinquishing United States nationality." The Immigration Technical Corrections Act of 1988, Pub. L. No. 100-25, §8(r), 102 Stat. 2609, 2618 went even further in providing that the 1986 amendment "shall apply to actions taken before, on, or after November 14, 1986."

Since foreign naturalization, particularly when coupled with an oath renouncing former allegiance, may be in derogation of undivided allegiance to the United States it may in some situations generate an inference of intention. However, the Board of Immigration Appeals has ruled that naturalization in a foreign state, coupled with an oath of allegiance to that state, gives rise only to a highly persuasive inference that U.S. citizenship was abandoned, which may be rebutted with proof that the person did not intend thereby to relinquish citizenship.

It is useful to mentioned that, although a renunciation of foreign allegiance was required by Canada as a prerequisite to naturalization as a Canadian citizen prior to 1973, this is no longer the case. In Ulin v. The Queen, 35 DLR(3d) 738, the renunciatory language was found to be ultra vires since the statute did not authorize such a requirement.

In September, 1990, the Department of State ("DOS") issued a policy statement which dealth with loss of nationality. The policy statement indicated that DOS would presume a person intended to retain U.S. citizenship where:

  1. the person was naturalized in a foreign country

  2. took a routine oath of allegiance, or

  3. accepted non-policy level employment with a foreign government.

Such a person 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. citizenship since such an intent will be presumed. It is important to note that the two expatriating acts which arise in the context dual nationality are given the benefit of this presumption.

According to the policy statement, the presumption that a person intends to retain U.S. citizenship is not applicable when the individual:

  1. formally renounces U.S. citizenship before a consular officer;

  2. takes a policy level position in a foreign state;

  3. is convicted of treason; or

  4. performs an act made potentially expatriating by statute accompanied by conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that the individual intended to relinquish U.S. citizenship.

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. citizenship.

In order to ensure retention of U.S. citizenship, U.S. citizens may wish to assert their citizenship status by actions confirming a continuing intent to retain U.S. citizenship. These could involve a contemporaneous written statement confirming the citizen's desire to retain U.S. citizenship, submitted to a U.S. consulate or the DOS. The U.S. citizen should also continue paying U.S. income taxes, obtaining U.S. passports, and maintaining retaining property and other ties to the United States after the expatriating act takes place to evidence an intention not to relinquish citizenship. However, as stated in the DOS policy statement, such action is not necessary where the presumption applies.

Loss of Canadian Nationality

Under U.S. law a person who takes the renunciatory oath of allegiance is supposed to be precluded from retaining dual allegiances. However, as stated above, whether or not foreign nationality is lost is determined by the laws of the country of foreign nationality, not the laws of the United States.

Subsection 15(1) of the prior citizenship statute did contain a prohibition against dual nationality. The text of this subsection is reproduced below:

Canadian citizens who, when outside Canada and not under a disability, by voluntary and formal act other than marriage, acquired the nationality of citizenship of a country other than Canada, thereupon ceases to be a Canadian citizen.

However, prohibitions against dual nationality do not appear in the current Citizenship Act.

Pursuant to Section 7 of the Citizenship Act, R.S.C. 1985, c. C-29, Canadian citizenship can be lost only for specific reasons listed in the statute. There are currently only three ways that Canadian citizenship may be lost:

  1. failure of second-generation citizens holding citizenship on the basis of birth to Canadians themselves born outside the United States to apply to retain citizenship before reaching age 28 (inapplicable to dual nationality);

  2. renunciation of citizenship; and

  3. revocation of citizenship which was obtained by fraud (inapplicable to dual nationality).

One might think that taking the renunciatory oath required for U.S. naturalization would constitute a sufficient renunciation to result in a loss of Canadian citizenship. However, this is not the case. Subsection 9(1) of the Citizenship Act requires a person to formally apply to renounce Canadian citizenship. Where an application to renounce is approved, a certificate of renunciation is issued and the applicant ceases to be a citizen after the expiration of the day on which the certificate is issued or such later date as the certificate may specify.

In other words, taking the U.S. oath of allegiance will not result in a loss of Canadian citizenship. A formal application must be filed and approved before renunciation will be effective. If no formal application is made, a Canadian citizen who subsequently naturalizes in the United States will continue to be a citizen of Canada.


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