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Dual Citizenship For Children Born In The US To Indian Parents

by Cyrus Mehta

Introduction

When a child is born in the US to an Indian national parent or parents, and the parents desire to return to India and raise the child in that country, tricky issues arise for the child to maintain the citizenship of both India and the US. Often, the parents desire that the child obtain an Indian passport after its birth, but still wish to leave the option open for the child at some point in its life to claim a US passport. This article explores the citizenship laws of both countries to determine whether such a child can maintain two nationalities.

Acquisition of US Citizenship

The principle of Jus soli, or acquisition by birth in a country, is found in Section 1 of the Fourteenth Amendment of the US Constitution. Thus, a child is a citizen of the United States by virtue of his/her birth in this country and regardless of the nationality of its parents.

Indian Citizenship by Descent

Can such a child born in the US apply for an Indian passport? According to the Indian Citizenship Act of 1956 (as amended in 1992 and recently in 2004) (hereinafter the “Indian Citizenship Act”), a person born outside India on or after December 10, 1992 shall be a citizen of India by descent if either of his/her parents is a citizen of India at the time of his/her birth.

The child within one year of the birth must register it at an Indian Consulate, and the parents must declare that the child does not hold the passport of another country.

Based on amendments made by the Citizenship Amendment Act of 2003, a minor who is a citizen of India by virtue of being born abroad to an Indian citizen parent, and is also a citizen of an other country, shall cease to be a citizen of India if he/she does not renounce the citizenship or nationality of another country within six months of attaining full age, which is 18 years. The specific form has not yet been prescribed for such a child to renounce his/her foreign citizenship.

Retaining US Citizenship

The child will continue to remain a US citizen even while he/she applies for Indian passports during his/her minority. If, upon attaining majority, the child renounces US citizenship before a US consular officer so as to retain Indian citizenship, he/she will lose US citizenship. If he/she renounces US citizenship before an Indian official, he/she may still be able to retain US citizenship, as will be discussed in the section below. The Indian Citizenship Act would presumably require such a renunciation of foreign nationality be made on a form to be filed with the Indian Ministry of Home Affairs.

Loss of US Citizenship

A US citizen can lose his/her citizenship under extremely narrow and limited circumstances. Section 349 of the Immigration and Nationality Act (hereinafter the “INA”) states that US citizens are subject to loss of citizenship if they perform certain acts voluntarily and “with the intention to relinquish US citizenship” (emphasis added). These acts are paraphrased below:

a. obtaining naturalization in a foreign state;

b. taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions;

c. entering or serving in the armed forces of a foreign state engaged in hostilities against the US or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state;

d. accepting employment with a foreign government if (a) one has the nationality of that foreign state or b) a declaration of allegiance is required in accepting the position;

e. formally renouncing US citizenship before a US consular officer outside the US in the form prescribed;

f. formally renouncing US citizenship within the US (but only “in time of war”);

g. conviction of an act of treason.

At one time, the mere performance of the above (or certain other) acts was enough to cause loss of US citizenship. However, the Supreme Court overturned this concept in Afroyim v. Rusk, 387 U.S. 253 (1967) and Vance v. Terrazas, 444 U.S. 252 (1980). Congress amended Section 349 in 1986 to require that loss of citizenship would result only when a potentially “expatriating” (citizenship-losing) action was performed voluntarily and “with the intention of relinquishing US nationality.”

The facts in Vance v. Terrazas are helpful to this discussion. Terrazas was a dual US/Mexican citizen by birth (born in the US to a Mexican father). While a university student in Mexico, he signed a document reaffirming his Mexican citizenship. This document contained a section, required by Mexican law, by which Terrazas explicitly renounced his US citizenship. Although the Supreme Court disagreed with Terrazas’ contention that he had not really meant to renounce his US citizenship, despite what was on the Mexican document he had signed, the Court upheld the principle that Congress could not designate an action as automatically resulting in loss of citizenship. According to the Supreme Court, even if such action were voluntarily performed, it would still be necessary to show that the individual did so with the intent of giving up his citizenship.

On April 16, 1990, the State Department adopted a new policy on dual citizenship, under which US citizens who perform a potentially expatriating act are normally presumed not to have done so with intent to give up US citizenship. Thus, the overwhelming majority of loss-of-citizenship cases nowadays will involve people who have explicitly indicated to US consular officials that they want to give up their US citizenship.

Assuming a child may have lost US citizenship through the performance of the acts prescribed under sub-sections (3) and (5) of Section 349 of the INA,1 he/she is entitled to a claim to United States nationality within six months after attaining eighteen years. INA Section 351(b).

A tricky issue may arise if the child needs to travel to the US on Indian passports. While it would be logical for the child to apply for a nonimmigrant visa, a US consul may not be inclined to issue such a visa and may insist that he/she obtain a US passport in order to travel to this country. If the child applies for a US passport whether as a minor or adult, he/she will lose the ability to retain an Indian passport, and further, will cease to be a citizen of India by descent if within six months of attaining full age the child does not renounce the citizenship of the United States. It is important, therefore, to insist with the US consul that the child be issued a nonimmigrant visa if the child wishes to retain the Indian passport.

Overseas Citizenship

If the child opts for the US passport, he/she will need to apply for Overseas Citizenship pursuant to the Citizenship Act of 2003, which was passed by the Indian Parliament on December 22, 2003, to grant dual citizenship (a.k.a. Overseas Citizenship) to persons of Indian origin who are citizens of certain countries. The legislation will also grant Overseas Citizenship to Indian citizens who may take up the citizenship of these countries in the future. At present, this benefit is being extended to persons of Indian origin of the following 16 specified countries: Australia, Canada, Finland, France, Greece, Ireland, Israel, Italy, Netherlands, New Zealand, Portugal, Republic of Cyprus, Sweden, Switzerland, United Kingdom and the United States of America.

Unfortunately, it is not clear if minor children can independently apply for Overseas Citizenship. At present, it appears that only the minor child of an Overseas Citizen can apply for such status. If the parent or parents are Indian citizens or are citizens of another country (and cannot qualify for Overseas Citizenship), the child too cannot qualify as an Overseas Citizen. It is however clear that once the child attains full age, he/she would be able to independently apply for Overseas Citizenship. An Overseas Citizen is presently not able to take up public employment or to be able to vote in Indian elections.

This article originally appeared on http://www.cyrusmehta.com/.


About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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