Survey of the Law of Expatriation from 2002: Department of Justice Analysis (Not a Tax Discussion)

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Most discussions regarding renunciation/relinquishment of U.S. citizenship are highly focused towards the U.S. federal tax consequences.  Today, the focus is on a 2002 report prepared by the DOJ for the Solicitor General, who supervises and conducts government litigation in the United States Supreme Court.

The report is found here, and I have highlighted some key excerpts:  Survey of the Law of Expatriation: Department of Justice Analysis:World Map

You have asked us for a general survey of the laws governing loss of citizenship, a process known as “expatriation” (also known within the specific context of naturalized citizens as “denaturalization”). See, e.g.,Perkins v. Elg, 307 U.S. 325, 334 (1939) (“Expatriation is the voluntary renunciation or abandonment of nationality and allegiance.”). Part I of this memorandum provides a general description of the expatriation process. Part II notes the relative difficulty of expatriating a person on the grounds that he has either obtained naturalization in, or declared allegiance to, a foreign state, absent evidence of a specific intention to relinquish U.S. citizenship apart from the act of naturalization or declaration itself. Part III analyzes the expatriation of a person who serves in a foreign armed force
engaged in hostilities against the United States.1
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1  Editor’s Note: The original footnote 1 has been removed in order to preserve the  confidentiality of  internal government deliberations.
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. . . In 1868, Congress declared 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, pmbl., 15 Stat. 223, 223; see also 8 U.S.C. § 1481 note (2000) (quoting Rev. Stat. § 1999 (2d. ed. 1878), 18   Stat. pt. 1, at 350 (repl. vol.)) (same).US Citizens Who Renounced - Chart Qtr 3 - 2015
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That declaration further stated 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.” 15 Stat. at 224. Similarly, the Burlingame Treaty of 1868 between the United States and China recognized “the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of . . . free migration and emigration . . . for purposes of curiosity, of trade, or as permanent resident s.” U.S.-China, art. 5, July 28, 1868, 16 Stat. 739, 740. Congress provided specific legislative authority for nullifying citizenship when, in 1907, it enacted the predecessor of the modern federal expatriation statute.

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II. Foreign Naturalization or Declaration of Foreign Allegiance
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Under federal law, a U.S. citizen can lose his nationality if he voluntarily “obtain[s] naturalization in a foreign state… after having attained the age of eighteen years.” 8 U.S.C. § 1481(a)(1). Likewise, a citizen of the United States could be expatriated if he voluntarily “tak[es] an oath or mak[es] 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.” Id. § 1481(a)(2). In either case, however, no loss of citizenship may result unless the citizen acts “with the intention of relinquishing United States nationality.” Id. § 1481(a).
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The most common obstacle to expatriation in cases involving foreign naturalization or declaration of foreign allegiance is sufficient proof of a specific intention to renounce U.S. citizenship. Intent need not be proved with direct evidence, to be sure. It can be demonstrated circumstantially through conduct.  Thus, in some cases, such as service in a hostile foreign military at war with the United States, the act of expatriation itself may even constitute “highly persuasive evidence…of a purpose to abandon citizenship.” Terrazas , 444 U.S. at 261 (quotations omitted).
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Dual nationality, the Supreme Court has explained, is “a status long recognized
in the law.” Kawakita, 343 U.S. at 723. See also id. at 734 (“Dual nationality . . . is
the unavoidable consequence of the conflicting laws of different countries. One
who becomes a citizen of this country by reason of birth retains it, even though by
the law of another country he is also a citizen of it.”) (citation omitted); Savorgnan, 338 U.S. at 500 (although “[t]he United States has long recognized the general undesirability of dual allegiances[,] . . . [t]emporary or limited duality of citizenship has arisen inevitably from differences in the laws of the respective nations as to when naturalization and expatriation shall become effective . . .
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For some prior related posts, see: The Semantically Driven Vortex of “Relinquishing” vs. “Renouncing”, June 21, 2014 and various posts that highlight the statutory tax rules requiring notice be provided to the IRS (which is typically emphasized by an officer at the U.S. Department of State as part of the consulate interview to renounce U.S. citizenship); Part I: Tax Timing Problems for Former U.S. Citizens is Nothing New – the IRS and the Courts Have Decided Similar Issues in the Past (Pre IRC Section 877A(g)(4)), Oct 16, 2015.

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