From mimsy!cs.umd.edu!zombie.ncsc.mil!paladin.american.edu!howland.reston.ans.net!cs.utexas.edu!swrinde!sgiblab!sgigate.sgi.com!gazette.esd.sgi.com!zuni.esd.sgi.com!euraptor!murgesh Sat Jan 22 11:01:48 EST 1994 past info : ---------- Forwarded message begins here ---------- (last revised 8 Feb. 1993) Here is a bunch of information regarding the current situation in United States law regarding dual citizenship. I have checked this question out quite thoroughly in recent years, and I am fairly confident that this material is accurate. (Hopefully there aren't any typos!) Standard disclaimer: I am not a lawyer. If you are in a dual citizen- ship situation, or are contemplating such a move, you should consider discussing your plans with an attorney who is knowledgeable in this par- ticular aspect of immigration law. In particular, the material here does not in any way express the opinions of Mortice Kern Systems Inc. Rich Wales // Mortice Kern Systems Inc. (MKS) 35 King St. N. // Waterloo, Ontario, Canada N2J 2W9 // +1 (519) 884-2251 ======================================================================== Q: Is it possible to be a dual citizen of the United States of America and another country? A: YES -- under certain circumstances. If you have been a dual citizen from birth or childhood, or else became a citizen of another country =after= already having US citi- zenship, and the other country in question does not have any laws or regulations requiring you to renounce your US citizenship, then current US law unambiguously assures your right to keep both citi- zenships. The US State Department has recently changed the way it evaluates dual-citizenship claims, and it now appears to be much easier to retain such a status without a fight than it used to be. However, it is probably still a good idea to exercise a minimum amount of care and common sense in order not to give the US State Department any grounds to conclude that you really did voluntarily relinquish your US citizenship despite your intention not to do so. It is not clear at present whether someone can become a US citizen via naturalization and still take advantage of his old citizenship. People who go through US naturalization are required to state under oath that they are renouncing their old citizenship, and conduct inconsistent with this pledge could theoretically lead to loss of one's US status. However, it appears that the State Department is no longer actively pursuing cases of this nature. Similarly, the State Department doesn't seem to be doing anything any more to people who renounce their US citizenship as part of a foreign country's routine naturalization procedure. However, if the other country in question requires its newly naturalized citizens to ask their old country to revoke their previous status, one will generally not be able to remain a citizen both of that country and the US. ======================================================================== Q: But I thought US law didn't permit one to be a dual citizen -- that if you were (by birth or otherwise), you either had to give up the other citizenship when you came of age, or else you'd lose your US status. And that if you became a citizen of another country, you'd automatically lose your US citizenship. So what's all this talk about dual citizenship? A: It indeed =used= to be the case in the US that you couldn't hold dual citizenship (except in certain cases if you had dual citizen- ship from birth or childhood). However, most of the laws forbidding dual citizenship were struck down in 1967 by the US Supreme Court. The court's decision in the 1967 case, as well as a second case in 1980, eventually made its way explicitly into the statute books in 1986; up till that time, the old rules were still on the books, but the State Department was effectively under court order to ignore them. Rules against dual citizenship still apply to some extent, however, to people who wish to become US citizens via naturalization. The Supreme Court chose to leave in place the requirement that new citi- zens must renounce their old citizenship during US naturalization. The official US State Department policy on dual citizenship today is that the United States does not =favor= dual nationality as a matter of policy because of various problems they feel it may cause, but the existence of dual status is =recognized= in individual cases. That is, if you ask them if you ought to become a dual citizen, they will recommend against doing it; but if you tell them you =are= a dual citizen, they'll usually say it's OK. ======================================================================== Q: Don't you lose your US citizenship if you move to another country with the intent of living there for an extended period of time? A: No. I used to think this was a totally off-the-wall question and that everyone knew the answer -- until I told people I was about to move to Canada, whereupon probably at least half a dozen of my friends asked me if this meant I would have to give up my US citizenship. ======================================================================== Q: For us "legal eagles", where are these two Supreme Court decisions and the federal statutes on US citizenship? A: The Supreme Court decisions are Afroyim v. Rusk (387 U.S. 253) and Vance v. Terrazas (444 U.S. 252). Afroyim was a Polish immigrant to the US, who moved to Israel and became an Israeli citizen under the Israeli "Law of Return". When the US State Department refused to renew his passport, he sued; the case went all the way to the Supreme Court, and Afroyim won. The basic point of Afroyim v. Rusk was that the 14th Amendment to the US Constitution -- while originally intended mainly to guarantee citizenship to freed Negro slaves and their descendants -- had effectively elevated citizenship to the status of a constitutionally protected right. Hence, Congress had no right to pass a law saying that doing such-and-so would deprive someone of his US citizenship against his will. Specifically, US laws mandating automatic loss of citizenship for voting in a foreign election, working for a foreign government, serving in a foreign army, or even swearing allegiance to a foreign country were invalid; said laws =must= provide for the possibility that someone could do one of these things and neverthe- less intend to retain his US citizenship. Terrazas was a dual US/Mexican citizen by birth. When he became an adult, he signed a document reaffirming his Mexican citizenship (as required by Mexican law). This document contained a clause renounc- ing his US citizenship. When the State Department ruled he was no longer a US citizen, Terrazas tried to argue in the courts that he didn't really mean to renounce his US citizenship, despite what was on the Mexican document he had signed. The Supreme Court disagreed and held Terrazas to the strict wording of the Mexican document, which it concluded he (being fluent in Spanish) had understood per- fectly well at the time he had signed it. The basic point of Vance v. Terrazas was that the State Department had the right to weigh the evidence for and against someone's intent to give up his US citizenship, and to use a "preponderance of evi- dence" standard (as in a lawsuit), rather than a "clear and convinc- ing evidence" standard (similar to a criminal case). "Rusk" and "Vance" in these two cases, incidentally, were Dean Rusk and Cyrus Vance, who served as Secretary of State under Presidents Johnson and Carter, respectively. The way these cases got before the Supreme Court in the first place was that people had appealed loss-of-citizenship rulings by the State Department; thus, the gov- ernment official named in each suit was the Secretary of State. The order of the names has to do with which person lost in the lower court and appealed to the Supreme Court, and really isn't important as far as the legal significance of the ruling is concerned. Loss of citizenship is dealt with in section 349(a) of the Immigra- tion and Nationality Act (8 U.S.C. sec. 1481(a)). The amendment which wrote the Afroyim and Terrazas decisions into the statute books was Pub.L. 99-653, 100 Stat. 3655, enacted 14 November 1986. The Vance v. Terrazas case seems to be less important now than it used to be, by the way, because current State Department guidelines on handling loss-of-citizenship cases generally ignore renunciatory statements made as part of a "routine" acquisition or affirmation of a foreign citizenship. For that matter, I understand Terrazas eventually did manage to get his US citizenship reinstated via some administrative procedure within the State Department, though at the present time I haven't found out any of the details on this. ======================================================================== Q: Doesn't the US Constitution forbid dual citizenship? A: No. The Constitution says nothing at all about dual citizenship. Indeed, the Supreme Court used an argument derived from the Consti- tution to affirm a right to dual citizenship in the Afroyim case (see the previous question). ======================================================================== Q: If dual citizenship is legal now, then why do people who want to become naturalized US citizens still have to take an oath giving up their old citizenship? A: The Supreme Court ruled (in the Afroyim case) that the citizenship protection of the 14th Amendment did not apply to people who were not yet citizens. Congress was still free, the Court decided, to establish prerequisites for accepting such people as citizens -- including a requirement that a prospective citizen must be willing to renounce his old citizenship. Incidentally, this asymmetry may explain why so many "immigration" lawyers in the US are seemingly unaware of the laws permitting dual US/other citizenship. They spend all their time dealing with people who want to become US citizens or permanent residents -- and since the US requires a renunciation of prior citizenship as part of the naturalization procedure, these lawyers may incorrectly assume the law works the same both ways and thus misadvise someone who is already a US citizen that he can't become a dual citizen. Be very mindful of this point if you look for a lawyer to discuss a dual citizenship situation with; if you find one who insists it's flatly impossible, keep looking. Also, many other countries do not recognize the act of renouncing their citizenship as part of US naturalization, so a new US citizen may very likely still be considered a citizen by his old country. This is probably a big reason why the State Department reportedly isn't going after people any more, as a rule, when they continue to let their old country treat them as a citizen despite naturalization in the US. ======================================================================== Q: I've heard that the US has a special agreement with Israel permit- ting people to be dual US/Israeli citizens. Is this true? A: No. It just happens that Israeli citizenship law does not require renunciation of one's old citizenship in order to become a citizen of Israel. In this regard, Israel is really treated no differently than Canada, the UK, France, or other countries which permit people to become citizens without giving up their old status. Note that serving in a foreign army does =not= automatically cause you to lose US citizenship. As explained below, if you do this with the =intent= of thereby giving up your US citizenship, then yes, you can end up losing your US citizenship; otherwise you can still keep it. So, again, the fact that most dual US/Israeli citizens can sat- isfy their obligation to serve in the Israeli army (IDF) without losing their US status is not the result of any special treaty between the US and Israel. ======================================================================== Q: If I become a US citizen and renounce my old citizenship as part of the naturalization ceremony, can I still run into problems (such as getting drafted or not being allowed to leave) if I go back to visit my old country? A: Possibly. Many countries do not recognize the renunciation of old citizenship which is part of the US naturalization ceremony. Can- ada, for example, requires that someone who wants to give up his citizenship has to go to a Canadian embassy or consulate and sign a special form in the presence of Canadian officials. Other countries may require an applicant for renunciation of citizenship to show he has sold or surrendered all his assets in the country, has fulfilled his military service obligations, etc. So, even after becoming a naturalized US citizen, one should still check carefully with diplomatic officials both of the US and of the "old country" before going back for a visit. If you get arrested there for draft evasion, for voicing opinions about their government while you were in the US which are considered taboo in the old coun- try, or for whatever other reason -- or if you find yourself forced into their armed forces -- you may very well find that the US can't help you too much, because the other country will insist you're one of their own citizens and that the matter is therefore none of the US's %$@&# business. Cuba, for instance, is notorious for taking this position with expatriate Cubans who become US citizens and then go back to Cuba for a visit. This same word of caution may also apply to people who were born in the US, but whose parents (or even grandparents) came from somewhere else. Many countries have laws conferring citizenship on the basis of the citizenship of one's parents or grandparents (even the US has a limited law of this kind). I personally know someone who got into trouble in South Korea because his father was Korean; even though my friend was born in the US and had never claimed or believed himself to be a Korean citizen, he had to cut short his visit in order to avoid being drafted into the South Korean army. In general, before visiting =any= country which might possibly have some reason to claim you as its citizen (due to circumstances of your birth or naturalization, or that of any of your relatives), it is a good idea to check both with that country's consular officials and the US State Department. And don't accept any travel documents identifying you as a citizen of the other country, unless it is your true intent to accept such status. Also, if you become a naturalized US citizen and permanently move away from the US within one year after your naturalization, you risk the possibility of losing your US citizenship. This is because one of the requirements for US naturalization is that you must agree to reside "permanently" in the US after becoming a citizen. The one- year time limit used to be five years, but was changed by Congress in 1986 (as part of the same bill which amended the dual-citizenship rules to be in line with the Supreme Court rulings; see above). Each case of this kind is evaluated individually, and if you can show you had intended to stay in the US but found it necessary to leave for pressing reasons beyond your anticipation or control, your naturalization will probably not be revoked. ======================================================================== Q: I've heard of people who became US citizens via naturalization but then claim they still have their old citizenship too. How is this possible? A: There are several possible scenarios. One is that the person's old country may not recognize the renunciation of citizenship he made as part of US naturalization (see the previous question). Such a per- son could be a dual citizen, as it were, in spite of himself. Or, the person might have become a US citizen as a child (natural- ized along with his parents) -- in which case he would never have had to take the oath and would not have had to renounce his old citizenship (even though his parents did). A person in this kind of situation can exercise his dual status freely, provided the other country doesn't require him to go to a US consulate and renounce his US citizenship when he becomes an adult. Finally, some people who become US citizens try to take covert advantage of the fact that the US didn't make them actually go to their old country's consulate and get their citizenship revoked (all they were required to do was make a renunciatory statement as part of the US naturalization oath) -- and they try to exercise rights of citizenship in the old country as though nothing had happened. The US State Department used to take a dim view of such behavior if they found out about it, and people acting in this way were known to lose their US citizenship on the grounds that their pledge to renounce their prior status had evidently not been made in good faith. Now, though, the State Department seems to be much less aggressive about pursuing this kind of case. ======================================================================== Q: If I am a dual US/other citizen, is there any way I can lose my US citizenship? What can I do to keep this from happening? A: Although current US law forbids the government from taking your cit- izenship from you against your will, it does permit you to give it up =voluntarily=. This has placed the US State Department in the complex position of determining whether someone who claims to be a US citizen has, in fact, given up that citizenship by his voluntary statements or actions. In the early days of court-mandated acceptance of dual citizenship, many State Department officials (uneasy as they were with the whole idea of dual citizenship) tended to play hardball with people who claimed dual status, looking for almost any excuse to revoke US cit- izenship, and frequently ruling that a person had voluntarily for- saken his US ties despite steadfast protestations to the contrary. Recently, though, the State Department adopted a new set of guide- lines for handling dual citizenship cases which are much more streamlined and liberal than before. The State Department now says that it will assume that a US citizen intends to =retain= his US citizenship if he (1) is naturalized in a foreign country, (2) takes a routine oath of allegiance to a for- eign country, or (3) accepts foreign government employment that is of a "non-policy-level" nature. A person in such a situation will eventually be asked to fill out a State Department questionnaire on the subject; but unless he/she affirmatively intended to give up US citizenship, no action will be taken to revoke said citizenship. Apparently, a "routine oath of allegiance" is no longer taken as firm evidence of intent to give up US citizenship, even if said oath includes a renunciation of US citizenship. This represents a dra- matic reversal of previous US policy; it used to be that any such statement was taken rigidly at face value (as in Vance v. Terrazas). The presumption that someone intended to keep US citizenship does not apply to a person who (1) takes a "policy-level" position in a foreign country, (2) is convicted of treason against the US, or (3) engages in "conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that [he] intended to relinquish U.S. citizenship". The State Department says that cases of these kinds will be examined carefully to determine the person's intent; they also say that cases falling under criterion #3 above (conduct wholly inconsistent with intent to keep US citizenship) are intended to be "very rare". Even though the US government's attitude on this subject seems to have improved dramatically in recent years, it is probably still a good idea to keep a few things in mind if you are a dual citizen or are contemplating becoming one. One reason for such caution is that the new State Department guidelines are the result of an adminis- trative policy, =not= an act of Congress. In theory, a future Secretary of State could revoke the new policy at any time by the stroke of a pen -- though I am not aware of any suggestion that this is likely to happen. Still, I would propose the following safety measures for your consideration in order to stay as far away from the edge of the figurative cliff as possible. ==> If you haven't acquired the second citizenship yet, double-check with officials of the other country to make sure they are not going to require you to renounce prior citizenships in general, or your US citizenship in particular. If they are, then you might not be able to get away with keeping your US status if the State Department changes its new policy in the future. ==> The State Department now says that you don't need to inform them before or right after becoming a citizen of another country; that they'll presume you intended to keep your US citizenship; and that, if you tell them later on that you intended to keep your US status, they will usually take you at your word. Still, it might be wise to put your intentions clearly on record. For example, you might consider making out a written declaration on the subject; sign it in the presence of two or three witnesses; have it notarized; and then keep it in your safe deposit box or other secure place. Should the US consulate express doubt later on as to your intentions, this statement can't hurt and might possibly help. ==> Keep your US passport renewed. When you apply for a new pass- port, the proper way to deal with the part of the application that starts with "I have not, since acquiring United States cit- izenship" is to line out whatever part does not apply to you and attach a letter of explanation. (For example, line out the part claiming you have not been naturalized or taken an oath of alle- giance to a foreign country, and include a letter explaining when and where you in fact did this.) I believe you'll have to do this each and every time you subsequently renew your passport for the rest of your life; but at least you only have to do it once every ten years. ==> Whenever you enter the US, =always= identify yourself as a US citizen and =always= use your US passport -- even if this means you carry both passports with you when you travel. Similarly, when you leave the US, tell the airline you're a US citizen, show them your US passport first, and show your other passport only if necessary to prove you don't need a visa for your trip. ==> =Always= remember to mention your US citizenship on any form from the other country (e.g., passport application) which asks if you are a dual citizen. ==> Do other things a US citizen living abroad is expected to do -- such as filing a US tax return every year (even if the various exclusions for foreign income and/or foreign tax mean you don't owe Uncle Sam anything); reporting your address to the nearest US embassy or consulate; and registering your children born abroad with the US embassy/consulate (since in most cases they will automatically have US citizenship because of you). The above are not "legal requirements" for retaining dual citizenship. However, if you do these things conscientiously, the chances are much less that you'll ever find the State Department seriously pursuing a loss-of-citizenship proceeding against you, even if their current lib- eral policies should change for the worse in the future. ======================================================================== Q: I lost my US citizenship some years ago after I became a citizen of another country. I told the people at the consulate that I intended to remain a dual citizen, but they wouldn't listen. I think I got a raw deal. Is there any way I can get my US citizenship back now? A: Yes. The State Department info on dual citizenship cases say that the current guidelines for ascertaining intent to keep US citizen- ship are applicable retroactively to past cases, and it explicitly says that "persons who previously lost U.S. citizenship may wish to have their cases reconsidered in light of this policy". To initiate such reconsideration, contact the nearest US embassy or consulate, or write the State Department at the following address: Director Office of Citizens Consular Services (CA/OCS/CCS) Room 4811 NS Department of State Washington, DC 20520-4818 If your situation is not straightforward, you may wish to consult a lawyer before doing this. But if the other country didn't require you to swear or sign away your US citizenship, and if you told the State Department you intended to keep it, and if they revoked your US status anyway, my impression is that all you need to do is write them and ask them to reconsider. Given the lax attitude the State Department is taking nowadays toward renunciatory declarations in foreign naturalization oaths, you might even be in luck if you can convince them that you would rather not have made that declaration, but saw no way out of it because (1) you felt circumstances required you to get a foreign country's citizenship and (2) taking a renunciatory oath was the only way you could get it. ======================================================================== Q: Isn't there something inherently unethical about being a dual citi- zen? I mean, how can you be a loyal American and at the same time owe allegiance to another country? "No man can serve two masters", and all that. A: This is a question of political philosophy, which I won't presume to argue. The fact remains, though, that the Supreme Court has ruled dual citizenship is legal -- and Congress has amended the Immigra- tion and Nationality Act to reflect that reality -- and the State Department now appears to be at peace with the concept as well -- so it is now a firmly entrenched part of the law of the land. ======================================================================== Q: How likely is it that the Supreme Court will reverse its earlier decisions and once again ban dual citizenship? Or that the State Department will backtrack on its recent liberalization of the guide- lines for dual citizenship and loss of citizenship? A: Since the Afroyim and Terrazas decisions have now been written into law by Congress, the Supreme Court is highly unlikely to reverse its earlier stance. In order for dual citizenship to again become impossible in the US, Congress would have to change the law back (in defiance of the Afroyim and Terrazas rulings); the State Department would have to start stripping dual citizens of US citizenship (again in defiance of the Supreme Court rulings); at least one such case would have to make it all the way to the Supreme Court (after rul- ings in lower courts in favor of the individual had been appealed by the government); and the Supreme Court would have to decide to over- turn its earlier decisions. Don't hold your breath. While the new State Department guidelines are purely administrative regulations and could in theory be changed at any time without any Congressional action, I am not aware of any move to do this. Fur- ther, the fact that the new rules go so far as to permit review of old cases and restoration of citizenship on the basis of the new rules strongly suggests to me that no abrupt reversal is planned. I haven't heard anything that would suggest the Clinton administra- tion is at all inclined to curb dual citizenship. There's probably no need to worry. ========================================================================