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The ABCs of Immigration - Losing US Citizenship
by Greg Siskind and Amy Ballentine

The revelation that one of the prisoners held at the US base in Guantanamo Bay, Cuba, is a US citizen has focused attention on the ways in which a US citizen can lose his citizenship. In this article, we will discuss actions a person takes that result in the automatic loss of citizenship as opposed to government decisions to revoke a person’s citizenship, which can only be done in the case of naturalized citizens. Natural born US citizens – those people who are citizens by virtue of their birth in the US – can lose their citizenship only through their own actions and cannot be denaturalized.

The Fourteenth Amendment, passed shortly after the US Civil War, makes “All persons born … in the United States … citizens of the United States.” The impact of this language is clear – those born in the US, regardless of their parents’ immigration status, regardless of the circumstances that led to their birth in the US, is a US citizen (there are exceptions for children of foreign diplomats, but these are not relevant for this discussion).

Since the same time period, there have been laws dealing with the circumstances that could lead natural born citizens to lose their citizenship. There has been substantial development in these laws over the years, but as the situation currently stands, to lose citizenship, the person must voluntarily engage in an expatriating act with the specific intention of relinquishing US citizenship. Also, regardless of the law in effect at the time of the act or acts in question, that act must result in the loss of citizenship under the law currently in effect.

Under the current scheme, there are seven acts that are considered expatriating and will result in the loss of citizenship. These are:

  1. Being naturalized in a foreign country, upon the person’s own application made after reaching 18 years of age;
  2. Making an oath or other declaration of allegiance to a foreign country or division thereof, again, after reaching 18 years of age;
  3. 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;
  4. 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;
  5. Making a formal renunciation of US citizenship before a US consular officer or diplomat in a foreign country;
  6. 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
  7. 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.
Naturalization in a foreign country

Because a legal application for naturalization in a foreign country must be made, obtaining citizenship in a foreign country by an automatic act of law will not result in the loss of US citizenship. If, in making the oath to the new country, the person is required to renounce allegiance to the US, and does so with the intent of losing US citizenship, he will. However, if the person makes such an oath believing that it will not impact his US citizenship, it is not a renunciating act. In those cases where the new country does not require a renunciation of loyalty to the country of original citizenship, it is very difficult to prove that a person has renounced his US citizenship.

Oath of allegiance to a foreign country

This situation is most commonly encountered when a US citizen serves in the military or government of a foreign country. In some cases, such an oath must be made to obtain a passport. As with all renunciating acts, the oath must be made with the intention of renouncing US citizenship. For dual nationals exercising their rights as a national of a country other than the US, such as military service or obtaining a passport, making the oath will not be treated as a renunciating act. Indeed, there is a presumption that, without additional evidence, making an oath of allegiance to another country will not be considered an effort to renounce US citizenship.

Service in the armed forces of a foreign country

The primary issues in this case are whether the person served in the actual armed forces of the country, or in some sort of national defense force, and whether the person was serving in the forces of a country. Serving in a military training program or defense forces that must specially be called out for military service is not considered a renunciating act, nor is service in an insurgent or revolutionary military group. Also, service in industries closely related to military efforts, such as munitions, is not considered a renunciating act.

Working for the government of a foreign country

Generally, acceptance of only high political posts in a foreign government, along with a purposeful renunciation of US citizenship, will result in the loss of US citizenship as a result of employment in a foreign country. Also, if the oath involved is simply that the person will obey the laws of a foreign country, that is not sufficient as evidence of renunciation.

Formal renunciation abroad

A formal renunciation of US citizenship is the most effective and clear expatriating act. In most cases, the renunciation is made to a diplomatic or consular officer of the US in a foreign country. Because this is so clear, the primary focus is on whether the person making the renunciation understood the full impact of the renunciation, and their intent in making the renunciation. In essence, the purpose and intent must be to make oneself ineligible for all benefits of US citizenship.

Formal renunciation in the US

Formal renunciations of US citizenship may also be made within the US, but only when the US is engaged in a war. The primary use of this provision was to force Japanese Americans to renounce US citizenship during World War Two. Most of these renunciations were ineffective because they were obtained under duress and were not voluntary.

Treason

Treason remains a basis for the loss of US citizenship, while similar provisions dealing with military desertion and draft avoidance have been repealed. The treason provision is infrequently used and there are questions about whether it is constitutional.

If it is determined, in most cases by a diplomatic or consular official abroad, that a person has in fact effectively renounced US citizenship, the official is to prepare a certificate of loss of citizenship and forward it to the State Department. The State Department then makes an official determination, and if it concludes that the renunciation was effective, forwards the certificate of loss of citizenship to the INS and sends a copy to the consular official to return to the person. At that point, the person has one year in which to appeal the loss of citizenship. The person can also, at any point in the future, regain citizenship if there was no written declaration of the intent to renounce citizenship.


About The Author

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

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 defender’s 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 aballentine@visalaw.com


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