The
revelation this week that one of the prisoners held at the US base in
Guantanamo Bay, Cuba, is a US citizen has focused attention on the
ways in which a US citizen can lose his citizenship.
In this article, we will discuss actions a person takes that
result in the automatic loss of citizenship as opposed to government
decisions to revoke a person’s citizenship, which can only be done
in the case of naturalized citizens.
Natural born US citizens – those people who are citizens by
virtue of their birth in the US – can lose their citizenship only
through their own actions and cannot be denaturalized.
The Fourteenth Amendment, passed shortly after the US Civil War, makes
“All
persons born … in the United States … citizens of the United
States.” The impact of
this language is clear – those born in the US, regardless of their
parents’ immigration status, regardless of the circumstances that
led to their birth in the US, is a US citizen (there are exceptions
for children of foreign diplomats, but these are not relevant for this
discussion).
Since the same time period, there have been laws dealing with the
circumstances that could lead natural born citizens to lose their
citizenship. There has
been substantial development in these laws over the years, but as the
situation currently stands, to lose citizenship, the person must
voluntarily engage in an expatriating act with the specific intention
of relinquishing US citizenship.
Also, regardless of the law in effect at the time of the act or
acts in question, that act must result in the loss of citizenship
under the law currently in effect.
Under the current scheme, there are seven acts that are considered
expatriating and will result in the loss of citizenship.
These are:
- Being
naturalized in a foreign country, upon the person’s own
application made after reaching 18 years of age;
- Making
an oath or other declaration of allegiance to a foreign country or
division thereof, again, after reaching 18 years of age;
- Serving
in the armed forces of a foreign country if those armed forces are
engaged in hostilities against the US, or if the person serves as
an officer;
- Working
for the government of a foreign country if the person also obtains
nationality in that country, or if to work in such a position an
oath or other declaration of allegiance is required;
- Making
a formal renunciation of US citizenship before a US consular
officer or diplomat in a foreign country;
- Making
a formal written statement of renunciation during a state of war,
if the Attorney General approves the renunciation as not contrary
to US national defense; and
- Committing
an act of treason against the US, or attempting by force or the
use of arms to overthrow the government of the US.
Renunciation by this means can be accomplished only after a
court has found the person guilty.
Naturalization in a foreign country
Because
a legal application for naturalization in a foreign country must be
made, obtaining citizenship in a foreign country by an automatic act
of law will not result in the loss of US citizenship.
If, in making the oath to the new country, the person is
required to renounce allegiance to the US, and does so with the intent
of losing US citizenship, he will.
However, if the person makes such an oath believing that it
will not impact his US citizenship, it is not a renunciating act.
In those cases where the new country does not require a
renunciation of loyalty to the country of original citizenship, it is
very difficult to prove that a person has renounced his US
citizenship.
Oath of allegiance to a foreign country
This
situation is most commonly encountered when a US citizen serves in the
military or government of a foreign country.
In some cases, such an oath must be made to obtain a passport.
As with all renunciating acts, the oath must be made with the
intention of renouncing US citizenship.
For dual nationals exercising their rights as a national of a
country other than the US, such as military service or obtaining a
passport, making the oath will not be treated as a renunciating act.
Indeed, there is a presumption that, without additional
evidence, making an oath of allegiance to another country will not be
considered an effort to renounce US citizenship.
Service in the armed forces of a foreign country
The
primary issues in this case are whether the person served in the
actual armed forces of the country, or in some sort of national
defense force, and whether the person was serving in the forces of a
country. Serving in a
military training program or defense forces that must specially be
called out for military service is not considered a renunciating act,
nor is service in an insurgent or revolutionary military group.
Also, service in industries closely related to military
efforts, such as munitions, is not considered a renunciating act.
Working for the government of a foreign country
Generally,
acceptance of only high political posts in a foreign government, along
with a purposeful renunciation of US citizenship, will result in the
loss of US citizenship as a result of employment in a foreign country.
Also, if the oath involved is simply that the person will obey
the laws of a foreign country, that is not sufficient as evidence of
renunciation.
Formal renunciation abroad
A formal renunciation of US citizenship is the most effective and
clear expatriating act. In
most cases, the renunciation is made to a diplomatic or consular
officer of the US in a foreign country.
Because this is so clear, the primary focus is on whether the
person making the renunciation understood the full impact of the
renunciation, and their intent in making the renunciation.
In essence, the purpose and intent must be to make oneself
ineligible for all benefits of US citizenship.
Formal renunciation in the US
Formal renunciations of US citizenship may also be made within the US,
but only when the US is engaged in a war.
The primary use of this provision was to force Japanese
Americans to renounce US citizenship during World War Two.
Most of these renunciations were ineffective because they were
obtained under duress and were not voluntary.
Treason
Treason remains a basis for the loss of US citizenship, while similar
provisions dealing with military desertion and draft avoidance have
been repealed. The
treason provision is infrequently used and there are questions about
whether it is constitutional.
If it is determined, in most cases by a diplomatic or consular
official abroad, that a person has in fact effectively renounced US
citizenship, the official is to prepare a certificate of loss of
citizenship and forward it to the State Department.
The State Department then makes an official determination, and
if it concludes that the renunciation was effective, forwards the
certificate of loss of citizenship to the INS and sends a copy to the
consular official to return to the person.
At that point, the person has one year in which to appeal the
loss of citizenship. The
person can also, at any point in the future, regain citizenship if
there was no written declaration of the intent to renounce
citizenship.
