While you have an absolute right to give up your U.S. citizenship, you must make your intention to expatriate crystal-clear.
A former client recently discovered this for himself. After acquiring a second passport, he subsequently made an appointment at a U.S. consulate and filed the paperwork to give up his U.S. citizenship. After a considerable delay, the State Department informed him that it was rejecting his expatriation.
Does this mean that this gentleman can never expatriate? Not at all. Indeed, the circumstances surrounding this case make the State Department's rejection of his application completely understandable.
A U.S. citizen loses nationality by voluntarily performing any of the following acts with the intention of relinquishing U.S. nationality:
1. Being naturalized in a foreign country
2. Taking an oath or similar declaration of allegiance to a foreign state
3. Entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) serving as a commissioned or non-commissioned officer.
4. ( A) Working for a foreign government as a citizen of that government; or (B) if such work requires an oath of allegiance or similar declaration.
5. Making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state.
6. Making a formal renunciation of nationality in the United States in wartime.
7. Committing treason, attempting by force to overthrow, or bearing arms against, the United States.
The overwhelming majority of individuals who voluntarily expatriate do so under options #1 ("relinquishment") or #5 ("renunciation"). For instance, obtaining a second passport from another country (#1) is a potentially expatriating act. If you choose to expatriate after doing so, that is your right under U.S. law.
But again, an expatriating act must be done voluntarily and with the intention of ending U.S. citizenship. In Afroyim vs. Rusk (1967), the court declared that the government may not involuntary strip an individual of citizenship. Subsequently, in Vance vs. Terrazas (1980), and in amendments to the Immigration and Nationality Act, the law was further clarified. For instance, simply acquiring a second citizenship and passport is not sufficient evidence of intent to lose U.S. citizenship. The State Department must also be convinced by a clear preponderance of evidence that is your intent. (This is one reason why I think the recent proposal from Sen. Joseph Lieberman (D-CT) and Congressman Charles Dent (R-PA) to strip U.S. citizenship from anyone found to be “engaging in, or purposefully or materially supporting, hostilities”is probably unconstitutional).
The "intent" requirement is what tripped up the former client, who elected not to engage my firm to assist with his expatriation. After acquiring his second passport, he continued to use his U.S. passport for international travel. Subsequently, he elected to give up U.S. citizenship under the relinquishment option. However, the fact that he continued to use his U.S. passport after acquiring his second passport cast doubt on his true intentions. To expatriate successfully, he will need to make a formal renunciation of U.S. nationality. This will remove any doubt as to his intention and I have no doubt that it will be successful.
In the past, I’ve generally advised clients who have used our expatriation services to relinquish, rather than renounce, if they have a choice. Courtesy of an obscure 1996 law, relinquishment rather than renunciation may make it easier to obtain a visa to re-enter the United States. I describe the reasons here.
However, the State Department now lumps any U.S. citizen who expatriates into a single category, which it calls “renunciants.” This makes the distinction between renunciation and relinquishment seem largely irrelevant. As the procedure for renunciation is simpler, and removes any question of intent, I no longer see any reason to avoid this option. If you're denied permission to reenter the United States after expatriation, it probably won’t matter if you relinquished or renounced. I'll be writing more about this in a future post.
Copyright (c) 2012 by Mark Nestmann