The ABCís Of Immigration - Issues In Losing Citizenship
Gregory Siskind and Amy Ballentine
Many people believe that once they become a citizen of the US, they will always remain so. In fact, this is not always the case, even for people who are US citizens by birth. A few months ago, we covered the ways in which a person can lose their citizenship (http://www.visalaw.com/02apr1/12apr102.html). This week, we will discuss in more detail what can cause a person to lose their citizenship, and how, in some cases, the person can prove the government wrong and regain their status as US citizens.
There are seven basic ways in which US citizenship can be lost:
Being naturalized in a foreign country, upon the personís 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.
Each of these acts, however, to be the basis for the loss of US citizenship, must have been performed voluntarily and with the intent for renouncing that citizenship. Until recently, this was not the case, and a renunciating act, regardless of its motive or intent, would lead to the loss of citizenship. In 1986, responding to a series of Supreme Court decisions holding that because US citizenship is grounded in the Fourteenth Amendment to the Constitution, Congress cannot determine when a person loses their citizenship, only the person can, Congress amended laws dealing with the renunciation of citizenship to clarify that it can only be accomplished voluntarily and intentionally.
Government regulations state that there is a presumption in favor of retaining US citizenship, but in practice, the State Department is likely to find renunciation occurred in almost every situation involving a qualifying act. In some cases, however, the intent to renounce citizenship will be obvious, or it will otherwise be impossible to overcome the presumption that renunciation was the intent. For example, a formal written renunciation of citizenship made during war would be considered conclusive evidence of the intent to renounce US citizenship. Other cases, however, are not so clear.
For example, the US allows dual citizenship. Therefore, in some cases, it is possible to take an oath of allegiance or become naturalized in another country without losing US citizenship. The critical factor is whether the act was intended to renounce US citizenship. There are a number of reasons why a person would be naturalized in another country. For example, doing so can make it easier to obtain employment and other benefits. It can also secure family relationships. It can even, in some cases, where hostility toward the US is high, prevent harm from coming to a person.
In an increasingly international world, more and more people born in the US grow up elsewhere. At some point in their lives, it is not unlikely that they will take an oath of allegiance to the country in which they live, or will seek employment with the government. These things can be done without any intention of renouncing US citizenship. Even though the acts may be performed voluntarily, and even with the intent of obtaining a benefit, this does not mean that there was the intent to renounce citizenship. To ensure that there is the intent to renounce, consular officers are instructed to obtain an affidavit in which the person specifies that they committed the renunciating act with the intent of losing US citizenship. Even with such a document, it is possible to successfully argue that one did not renounce his or her US citizenship, but such cases are very time consuming and require substantial effort.
About The Authors
Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's
Memphis, Tennessee, office. After graduating magna cum laude from
Vanderbilt University, he received his Juris Doctorate from the
University of Chicago. Mr. Siskind is a member of AILA, a board member
of the Hebrew Immigrant Aid Society, and a member of the ABA, where he
serves on the LPM Publishing Board as Marketing Vice Chairman. He is
the author of several books, including the J Visa Guidebook and The
Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all
areas of immigration law, specializing in immigration matters of the
health care and technology industries. He can be reached by email at firstname.lastname@example.org.
Amy Ballentine is an associate in Siskind,
Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English
Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the
law review staff as well as a published author. She also worked with the local public defenderís office in death
penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at email@example.com
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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