Renunciation of U.s. Citizenship: Why Would a Client "give it All Up"?

• Publication year: 2019

Kehrela Hodkinson^*

Abstract: This article provides a summary of the expatriation laws of the United States. It then discusses current policies and procedures for expatriation, with a focus on renunciation. It concludes by posing questions regarding future trends related to loss of U.S. citizenship through renunciation.

Introduction

In 1999, the U.S. Department of State estimated that there were between three and six million U.S. citizens who resided outside the United States. In 2016, the agency estimated that the figure had increased to approximately nine million. Along with this increase in the number of U.S. expatriates, there has been a significant increase in the number of those individuals who have decided to renounce their U.S. citizenship. While most U.S. immigration lawyers assist their clients to obtain nonimmigrant visas, lawful permanent resident status, and ultimately, U.S. citizenship, many lawyers never consider the fact that some U.S. citizens living abroad are making the decision to give up their U.S. citizenship and are going through the process of renunciation. In light of this phenomenon, this article examines the history of renunciation and the changes in the laws of expatriation from the formation of the United States from the original 13 colonies to the present. It will also raise issues regarding the future of the laws of expatriation and how trends in renunciation result from other legislation.

This article deals with renunciation as a matter of citizenship law. Intentionally missing from this article is an analysis of the relevant tax laws and implications. It must be understood that, although separate, tax and renunciation go hand in glove, and compliance with the set of regulations governing one but not the other does not make for a complete exit from U.S. regulatory requirements.

A Brief History of Expatriation

The terms "expatriate" and "expatriation" have a long and complex history. Their use ranges from simple residence abroad "for a considerable period of

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time" to the more definitive legal renunciation or destitution of allegiance, "denationalization" or "decitizenization."¹

The United States was founded by the act of expatriation of citizens from England, but ironically, the United States did not grant its own citizens the right to renounce citizenship. There is no right to expatriation in the Declaration of Independence, the Constitution, or the early federal laws.

Until the mid-nineteenth century, the United States implicitly followed the English common-law tradition of "perpetual allegiance," a feudal concept in which all natural-born citizens are considered to inherit, upon birth, a debt of obligation to the country in which they are born in exchange for the state protection they receive. Because this feudal debt of obligation can never be cancelled, the citizen can never relinquish his or her citizenship. It was quite ironic that the United States followed a system of "perpetual allegiance." On the one hand, the United States welcomed and protected immigrants who expatriated from their countries, while on the other hand, it continued to follow the medieval concept prohibiting expatriation.

From the mid-nineteenth century, with the massive influx of immigrants from Northern Europe, legal thinking about expatriation began to be seen as a corollary to immigration policy, reassuring newcomers that their naturalization in the United States was secure against competing claims from the countries of their birth. In 1868, Congress passed the Expatriation Act,² which recognized "the right of expatriation" by individuals, but it was directed to affirming the right of foreign nationals to expatriate themselves and to become naturalized U.S. citizens. It did not explicitly create any procedure by which a U.S. citizen might exercise his or her right to give up citizenship.

It was not until the Expatriation Act of 1907³ that Congress legislated actions that constituted expatriation. The three principal acts that incurred citizenship loss were naturalization or an oath of allegiance pledged to a foreign state, extended residence abroad (of naturalized American citizens), and marriage of women to foreign citizens. Naturalized American citizens were still protected under the law wherever they travelled, but they were at risk of losing their new citizenship if they resided for two years in their country of origin or for five years in any other foreign state. The presumption of loss of American citizenship due to extended residence abroad could be overcome only if the individual provided satisfactory evidence that there had been no intent to relinquish American citizenship.

Between 1907 and the Married Women's Independent Citizenship Act (Cable Act) of 1922,⁴ American women who married foreign nationals were subject to involuntary expatriation. Section 3 of the Expatriation Act of 1907 specified that any American woman who married a foreigner would take the nationality of her husband. This resulted in the forced expatriation without emigration of U.S. citizen women who resided in the United States.

By clearly delineating the acts that could lead to loss of citizenship, the Expatriation Act of 1907 marked a political shift from inclusion to exclusion

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in response to anti-immigrant protagonists in Congress. With the Nationality Act of 1940,⁵ Congress designed laws to strip U.S. citizenship from persons who committed treason or deserted the armed forces in wartime. The law was further expanded to include leaving the United States to evade the draft as an expatriating act.⁶ Subsequently, attempting to overthrow the government by force or violence was added as an expatriating act.⁷

Section 349 of the Immigration and Nationality Act of 1952 (INA)⁸expanded the list of...