Man is an animal suspended in webs of significance that he himself has spun...

Saturday, June 9, 2012

Two Tales of U.S. Citizenship

One continent.  Two borders.  Three countries.  Many questions about citizenship.

Here are two citizenship stories that I've been following separately that I think are worth placing side by side and comparing.  Both concern U.S. citizenship but one is about people who do not want to be claimed as U.S. citizens while the other is a fight for recognition as U.S. citizens.

The Old Expatriates:  Once upon a time the U.S. did not allow its citizens to naturalize in other countries and retain their U.S. citizenship.  Even today you can go to this U.S. State Department website which lists those acts which can potentially cause a U.S. citizen to lose his or her citizenship.  Two of them are:
  1. obtaining naturalization in a foreign state (Sec. 349 (a) (1) INA);
  2. taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions (Sec. 349 (a) (2) INA);
Prior to 1986 performing one of the above actions (among others) meant automatic loss of one's U.S. citizenship.  Two Supreme Court cases, a law passed by the U.S. Congress and a revision of State Department policy concerning dual citizenship in 1990 changed all that.  Today these acts will only cause someone to lose U.S. citizenship if they are performed "voluntarily and with the intention to relinquish U.S. citizenship."  This is basically recognition by the U.S. of the right to dual citizenship for birthright citizens.  (Please note that this also means there are two methods of severing one's ties to the U.S.:  relinquishment versus renunciation.)

So any U.S. citizen who naturalized in another country prior to 1986 (or 1990 if you prefer) was no longer a U.S. citizen the moment he or she swore an oath to the Queen or any other foreign power. A fair number of people did just that.  In particular all those Americans who headed north in the 1960's and 70's.  At that time none of these expatriates were required to inform the U.S. of their actions though I have seen reports on Isaac Brock that some did do so at the time.  It was not until 1995 that the U.S. started requiring people relinquishing their U.S citizenship to inform the State department of that fact.

For years these people have been living quietly and happily in Canada:  getting married, raising families, and working.  Today many are retired.  In their minds, they are 100% Canadian though many still have family and friends to the south.  

Then in 2010 the U.S. Congress passed a law called FATCA (Foreign Account Tax Compliance Act) which requires foreign financial institutions to report on financial accounts held by U.S persons (U.S. citizens and Green Card Holders).  Under FATCA the burden is on the foreign bank or other entity to identify their account holders who are U.S. persons in order to turn that information over to the U.S. IRS.  The easiest way to do this, of course, is through place of birth.  This in turn places a burden on those Canadian citizens born in the U.S. to prove that they are no longer U.S. citizens.  They are not only having to do this to satisfy their banks but also to satisfy U.S. border guards who are stopping these ex-Americans at the border and telling them to get U.S. passports and start filing taxes.  One guard is even reported to have said in response to a Canadian arguing that she had given up her U.S. citizenship years ago, "You're an American until we say otherwise."

To say that these Canadians are pretty upset by this nonsense would be a grave understatement.    The solution to this nightmare is to have something called a Certificate of Loss of Nationality (CLN).  Some folks already have one buried in their archives while others are having to apply for one.  Reports are that this can take up to a year.

Suspect Citizens:  Moving down to the U.S. southern border a completely different situation has been evolving as the Obama administration has implemented harsh deportation policies for undocumented migrants in the U.S. and has stepped up border checks to keep potential migrants out.
Again, citizenship policy is fundamental here.  The U.S. grants citizenship by both jus sanguinis (by blood) and by jus soli (by place of birth).  In fact the U.S. has one of the most generous jus soli laws around.  Anyone born in the U.S. is a U.S. citizen.  Period.   

In the zeal to cleanse the U.S. of the undocumented it appears that a number of U.S. citizens are seeing the sharp side of the boot. The U.S. does not have anything resembling a national identity card and most Americans don't carry documentation that clearly shows their citizenship status.  In fact the only documents I know of that are definitive proof of U.S. citizenship are a Certificate of Nationality or Certificate of Citizenship.  Birth certificates and U.S. passports also work in most cases but few people carry birth certificates in their pockets and many Americans don't have passports.

So when someone is picked up in the U.S. and is suspected of being undocumented and cannot prove on the spot that he or she is a U.S. citizen, what happens?  That person can be detained or even deported.   From the stories in the U.S. media it appears that very few people with last names like "Smith" or "Johnson" or "O'Reilly" ever find themselves in this situation.  It's more a problem for folks like Antonio Montejano (place of birth Los Angeles, California, USA) who was arrested twice and even deported to Mexico once before the ALCU intervened and got the situation straightened out.

Jacqueline Stevens, author of States Without Nations: Citizenship for Mortals estimates that about 4,000 U.S. citizens were wrongfully deported in 2010 alone.  In support of this assertion, and for specific cases that she has been tracking, see this thread on her website States Without Nations.  There are even reports that U.S. border officials have intimidated some returning U.S. citizens at the border into renouncing their U.S. citizenship.  Interestingly enough these "on the spot" renunciations do not seem to require proof of U.S. tax compliance nor a determination from the U.S. IRS that the renunciant is not giving up U.S. citizenship for the purpose of evading taxes. :-)

Not a very pretty picture is it?  To the north,  people being forced into proving that they are no longer U.S. citizens and to the south, people being bullied into proving that they are and sometimes being stripped of that citizenship (and the rights that go along with it) on the whim of a border guard or an immigration official.

If I were a very cynical woman I might attribute all of this to such things as racism (a desire to remove "undesirable" citizens) or greed (a blatant attempt to appropriate the assets of retired ex-Americans abroad).  But I would not want to make the error of inferring intent from design.  Follow the links, do your own research and make up your own mind.  

As for myself I plan on thinking on it a bit more as it is very early on Saturday morning here in Versailles and I have not yet had my morning coffee. 

Bon weekend, everyone!

11 comments:

CarnetsSeattle said...

interesting as always.

What are you doing up so early?

Hope you are doing well.

Victoria FERAUGE said...

Hi Loic, Sleep schedule is completely out of whack right now. Chemo commenced on Thursday and I started feeling all the side effects immediately. Got up early this morning to take yet another round of anti-nausea medicine and am feeling a lot better. I'll go back to bed in about half an hour and we'll see how the rest of the day goes.

And how are you doing? I read about the excitement in the U District. Close call.

Bises,

Victoria

CarnetsSeattle said...

Hi,

Yes, I understand.

Despite my dislike of too much drugs, I took some ambien, lorazepam and clonazepam to help with the sleep.

Ambien is nice when you can't sleep. Clonazepam is nice to stay asleep.

Lorazepam curbs anxiety and nausea.

In small does they are mostly harmless and can help a great deal. You need all the sleep you can get. Hang in there

A broken man on a Halifax pier said...

Hi, Victoria -

Good luck with the chemo - it can be a difficult road.

I was asked recently at the border about whether I'd been filing US taxes - it seems to be standard for USCs with foreign addresses. My dark theory about *why* they're doing it is to make it difficult for the people warned to write reasonable-cause letters with their late tax returns later on:

1) Taxpayer files a stack of back tax returns, perhaps for a renunciation, with a covering letter saying the returns are late because he didn't know he was supposed to file.

2) IRS writes back saying: "That's not true: Our records say that you were told two years ago at the Lewiston border crossing by Officer X that you should be filing taxes. Your reasonable cause letter is rejected, and we are assessing penalties ..."

Christophe said...

All these articles about lately about citizenship really make me wonder if I should apply for US citizenship. I won't have to really worry about that for another long 6 years or so, but I am still undecided.
The Oath of Allegiance asks to renounce and abjure all allegiance and fidelity to our previous country. I thought we could maintain dual citizenship, but it is not what it sounds like when we read it.

Victoria, I hope the anti-nausea medication works well. I've been suffering from anxiety and feel nauseous in the middle of the night. I shouldn't complain. I am sure it is nothing compared to what you're going through.
Hope you'll feel better. How many months of chemo were you prescribed?

Victoria FERAUGE said...

@Broken Man, I hadn't thought of that but it makes sense.

@Christophe, I think (and just my .02) here is that before doing anything you should talk to an international tax lawyer and make sure you understand all the implications of becoming a citizen. For example, if some day you will inherit property in France will you have to pay inheritance tax in both countries, for example.
The anti-nausea medication helps but doesn't entirely do the trick. I can't imagine what people went through before these medications were available. Getting a little better every day. I have 6 sessions total over 5 months.
So one down and 5 to go. :-)

Christophe said...

@Victoria. I have a green card and pay my taxes in the US. I don't think getting the US citizenship would change what I would have to pay in taxes.
I would actually sleep much better right now if I had naturalized. It might be silly, but I am terrified of being audited and deported because I did not declare prior to 2011 my French account, paid however minor taxes on it and filed FBARs. This should not be a risk were I a citizen. And my wife is not excited to say the least about a move to France.
Thanks for your advice. Yes, I'll get in touch with Phil Hodgen when the time comes.

I hope the medication you're taking will eliminate the bad side effects. Cancer has struck in my family also, and I can relate what your family is going through.
Hang in there. I know it's tough, but 5 months is a relatively short amount of time.

My sister lives not too far from Versailles (Gazeran, next to Rambouillet). I'd love to say hi the next time we visit with her.

Victoria FERAUGE said...

@Christophe, I see what you mean. Yes, all in all, better to be a citizen in the state of residence. I'm sitting here very frustrated today because I couldn't vote!

Inheritance is one issue I'm a bit concerned about. The estate taxes are different depending on the nationality of the spouses. I think (not sure) that I can leave part of my estate to my Frenchlings tax free (in the US) but it appears that my French husband would have to pay US taxes on his part since he is not a US citizen. See this great presentation by ACA to get some idea how this can work http://www.aca.ch/estatebonnard.pdf

I would be THRILLED to meet you! Please, if you are in the area, don't hesitate to pass by the Flophouse. :-)

Victoria

Christophe said...

@Victoria
> I'm sitting here very frustrated today because I couldn't vote!

Same here. That's the main benefit my immigration lawyer told me from acquiring citizenship, in addition to the fact that you shoulnd't be deported in case you commit a crime. And even there, depending on the crime, they can revoke your citizenship.
There are interesting articles about naturalization and second class citizenship - this one for example:
http://law.onecle.com/constitution/article-1/35-naturalization-and-citizenship.html

Have you thought about acquiring French citizenship?

Thanks for the article about inheritance. Very interesting indeed, and more complex than I thought it might be...
I should look into these things. I probably should start with the basics and get a will done. I don't have one yet.

I am not sure when we'll go to Paris. We were just there in March.
We usually alternate between visiting my sister and my parents, who live in a beautiful part of France (Embrun dans les Hautes-Alpes).
http://www.france-voyage.com/travel-guide/embrun-1323.htm
We'll probably go there next year, and back to Paris in 2 years. Travelling is expensive for a family of 4. We only go once a year, and my parents come once. My sister hasn't made the trip since she had a baby who is over 2 years old now!

-Christophe

Victoria FERAUGE said...

Hi Christophe, Good links and they contain an important lesson. Citizenship rules change and just because we are citizens today does not mean that we will be so tomorrow. The Dutch recently tried to remove the citizenship of its citizens abroad who were duals. It failed but....

Before the "adventure" began I had just about finished gathering the paperwork to ask for French citizenship. In fact the only thing I was missing was a translation of my birth certificate. None of the translators I contacted called me back and then other events interfered. Now I am going to have to order another birth certificate because the French gov requires one that was issued within the last three months and mine is now older than that. :-)

Very discouraging....

Victoria

P Moore said...

Victoria,
Very well explained. Somehow the whole notion of US citizenship has become incredibly messy.

Citizenship & immigration issues are usually not simple, but the US can make them especially complicated.