Is It Time To Renounce US Citizenship?

There has been some items in the news recently regarding the US State Department's decision to increase the fee for the US citizenship renouncement process, increasing the cost to US$2,350 – which is ten times what some other countries charge should you decide to exit stage left.  And aside from the fee increase, a few of our own clients are reporting that the US consulates are so backed up with requests for citizenship renouncement that they are giving appointments to do so up to one year out in some cases.  And even if it is the case you can get an appointment right away, it has been taking up to 10 months is some cases for them to process your request.  However, that should not come as a surprise considering a new record of US citizenship renouncements was set again for 2015, with 4,279 people opting out.  When you realize the annual number about 10 years ago was about 250 annually, you can blatantly see that each year the number have been growing.  But is there a less costly and quicker way to do it?  Perhaps, all depending on which word you decide to use.

To illustrate this idea, I am reminded of a high school social studies teacher back in the late 1970's or early 1980's right about the time when Jordache Jeans, and other so-called designer jeans were becoming popular in the US for the first time.  The teacher asked his students what the difference was between designer jeans and dungarees? His answer was US$50 (back then anyway). And so we ask the question: what is the difference between relinquish and renounce in terms of giving up your status in 2016?  The answer apparently is US$2,350.

Renounce US Citizenship - Relinquish US Nationality: What Is The Difference?

So, what then is the real difference between these two words (relinquish and renounce)?  Well, the dictionary definition of the word relinquish includes: to give up, to release, to yield, to withdraw or retreat from.  The definition of renounce is given as: to repudiate, to give up, refuse, or resign usually by formal declaration.

Both words supposedly indicate to give up, BUT in terms of the US State Department use of these words and as it relates to citizenship and or nationality they pertain to two different things.  Renouncement is used specifically in conjunction with US CITIZENSHIP and it involves a formal and intended written declaration, in black and white with no doubt about your actions or motives.  Relinquishment, on the other hand, specifically refers to US NATIONALITY and is an affirmation regarding something you may have already done with respect to your acquiring another nationality (and citizenship).  To explain, by electing to relinquish nationality at the US consulate, you are affirming that you took an oath of allegiance to another country (possibly and probably verbally) or voluntarily was naturalized in a foreign country, or took a routine oath of allegiance to a foreign state, or served in the armed forces of a foreign state not engaged in hostilities with the United States, or had accepted non-policy level employment with a foreign government.

It is interesting to note that IF one of the above circumstance might apply to you (you obtained naturalized citizenship in another country and took an oath as part of that process), you are NOT considered to have relinquished your US Nationality unless you affirm so at the US Consulate.  And even the language and information from the US State Department about this supports the claim whereby their web site says:

A U.S. citizen by birth or naturalization or a U.S. non-citizen national will lose U.S. nationality (expatriate) her or himself by committing a statutory act of expatriation as defined in INA 349 (8 U.S.C. 1481), or predecessor statute, but only if the act is performed (1) voluntarily and (2) with the intention of relinquishing U.S. citizenship.  The U.S. Supreme Court has spoken (Afroyim v. Rusk, 387 U.S. 253 (1967) and Vance v. Terrazas, 444 U.S. 252 (1980)):  a person CANNOT LOSE U.S. NATIONALITY unless he or she VOLUNTARILY RELINQUISHES that status.

In plain English, you may or may not have INTENDED to relinquish your US Nationality based upon something you had done previously (such as swear an oath as part of a swearing in ceremony for your new citizenship in another country) and the US State Department will NOT assume you have unless you say so.  With regards to your desire to renounce, that term specifically refers to citizenship and is a formal written declaration you are making regardless of anything you might have done in the past.  It is theoretically possibly to renounce citizenship but keep nationality (using the broader non legal definition of nationality), although that is NOT what is going to happen as far as the US State Department is concerned.  However, if you relinquish nationality then you are also relieving yourself of citizenship as a consequence (because citizenship was granted to you as a consequence of nationality). But there is somewhat of a conundrum which we will discuss a bit in more detail later on (The question is: Can a government can take away something they issued, such as citizenship, but can any government legally take away your nationality, something you acquired by nature and circumstance?).

Nationality in the generic sense refers to where you were born and citizenship is a legal status indicating you were registered with some government (and you were given state issued documents, such as a passport, to prove your affiliation).  Nationality is theoretically with you for life (if you were born in Kalamazoo, Michigan then nothing nor no one can take away from the fact that you were born there).  However citizenship on the other hand, can be voluntarily acquired or renounced because it is a legal status issued by governments and can be independent of or in addition to your nationality.  For example, a person born in Kenya that migrated to Canada and became a Canadian Citizen, could be classified as their Nationality = Kenya but Citizenship = Canada.  And to expand upon that, such a person could really also hold citizenship in Kenya, which means two citizenships, one nationality (again, using the broader definition of being a place you were born).  Of course, using the legal definition of nationality (swearing an oath of allegiance), then Canada could consider that person a national (and a citizen) in addition to Kenya (dual citizenship, dual nationality).

Wikipedia defines the difference between the two as follows:

Citizenship is the status of a person recognized under the custom or law of a state that bestows on that person (called a citizen) the rights and the duties of citizenship. That may include the right to vote, work and live in the country, the right to return to the country, the right to own real estate, legal protections against the country's government, and protection through the military or diplomacy. A citizen may also be subject to certain duties, such as a duty to follow the country's law, to pay taxes, or to serve in the military. A person may have multiple citizenships and a person who does not have citizenship of any state is said to be stateless.

Nationality is often used as a synonym for citizenship in English – notably in international law – although the term is sometimes understood as denoting a person's membership of a nation (a large ethnic group). In some countries, (such as) the United States, the United Kingdom, nationality and citizenship can have different meanings.  Nationality affords the state jurisdiction over the person and affords the person the protection of the state. The most common distinguishing feature of citizenship is that citizens have the right to participate in the political life of the state, such as by voting or standing for election.

The noun national can include both citizens and non-citizens. By custom and international conventions, it is the right of each state to determine who its nationals are. Such determinations are part of nationality law. In some cases, determinations of nationality are also governed by public international law—for example, by treaties on statelessness and the European Convention on Nationality.
 
Blacks Law Dictionary Defines Nationality as Follows:

That quality or character which arises from the fact of a person’s belonging to a nation or state. Nationality determines the political status of the individual, especially with reference to allegiance; while domicile determines his civil status. Nationality arises either by birth or by naturalization.

Blacks Law Dictionary Defines A Citizen as Follows:

In general, A member of a free city or jural society, (civitas.) possessing all the rights and privileges which can be enjoyed by any person under its constitution and government, and subject to the corresponding duties.

All this discussion about the semantics of these words is well and good, but what is the application of all this in the real world (and how do you save yourself the 23 Benjamins)? Well, with regards to the type of paperwork, process and fees involved, if you want to renounce your citizenship, there is an interview process (and more than one actually), plus forms and documentation to complete and a bureaucratic process involved (and because of all the work involved, the US State Department is saying they now want the US$2,350 to compensate for all this time and bureaucratic work load – although the same work load was there when the fee was about US$400).

HOWEVER, If you want to visit the consulate and declare instead to a consulate officer that you have obtained another nationality, swore an oath and that it was your intent to voluntarily relinquish your US NATIONALITY, then there supposedly is a one page short form document to complete and no gorilla sized bite to you wallet.  Quick and easy.  In fact, directly below is what is stated on the US State Department site with the related link:

Persons Who Wish To Relinquish U.S. Nationality

If the answer to the question regarding intent to relinquish nationality is yes, the person concerned will be asked to complete a questionnaire to ascertain his or her intent toward U.S. nationality. When the questionnaire is completed and the voluntary relinquishment statement is signed, the consular officer will proceed to prepare a Certificate of Loss of Nationality of the United States.   The certificate will be forwarded to the Department of State for consideration and, if appropriate, approval.

An individual who has performed any of the acts made potentially expatriating by statute who wishes to lose U.S. nationality may do so by affirming in writing to a U.S. consular officer that the act was performed voluntarily with an intent to relinquish U.S. nationality. A U.S. national also has the option to formally renounce U.S. nationality abroad in accordance with INA Section 349 (a) (5) .

http://travel.state.gov/content/travel/english/legal-considerations/us-citizenship-laws-policies/citizenship-and-dual-nationality.html


So, the act of citizenship renouncement is a convoluted, bureaucratic and aggravating mess of a process that requires two separate interviews and costs US$2,350 but relinquishment of nationality involves a fairly painless one step visit (or so it would seem by the State Department's own information).  BUT, there is a catch in that the US State Department can deny your stated desire to relinquish (which is decided from Washington, D.C. where supposedly the document is sent by the US consulate you had visited).  In fact, we have heard of some circumstances whereby this was the case and the person was instructed to renounce citizenship instead, and fork over the dough (do not pass go, and please DO pay the toll of US$2,500). So, just be aware of this possible contingency.


But, just for fun, let us now throw a monkey wrench into all this and let you know that there are some persons out there who are US Non-Citizen Nationals walking around with a US Passport.  What's that you say?  They have a US Passport but are not US Citizens?  Yes. Some people are US Nationals (with a US State Department issued passport) but NOT US Citizens and can apply for a US Passport via form DS-11 at any passport office.  And this brings us back to the argument once again of what is nationality, what is citizenship, and how do these two things legally differ.  Can they legally differ?  Can any government legally, ethically, morally separate you from your NATIONALITY?  Your CITIZENSHIP perhaps yes under the argument that because it was the government that issued or granted citizenship status BASED UPON THE FACT that you were born inside the territory and are thus a national by birth, by nature (again under one definition but perhaps not another).  Are there any real life cases of someone being a national that had to be granted citizenship by special legislation of the government?  Yes – the Native American Indians.  In fact, after being granted US Citizenship, they are also citizens of the Indian Tribe Political or Governmental Body which is considered a separate and legal jurisdiction inside the territorial boundaries of the US.  And so, Native American Indians have One Nationality in theory, Two Citizenship's in practice.


US Citizens Are Also US Nationals (But The Opposite May Not Be True)


Here is what the US State Department says:

ALL U.S. CITIZENS are U.S. NATIONALS but only a relatively small number of persons acquire U.S. nationality WITHOUT becoming U.S. citizens. Section 101(a)(21) of the INA defines the term national as a person owing permanent allegiance to a state.  Section 101(a)(22) of the INA provides that the term national of the United States includes all U.S. citizens as well as persons who, though not citizens of the United States, owe permanent allegiance to the United States (non-citizen nationals).


Certificate Of Loss of Nationality

In terms of obtaining proof that you have indeed expatriated, it is also VERY interesting to note that they will give you (if you request it) a COLN or CLN, which is the abbreviated terminology for a Certificate of Loss of Nationality, BUT they will NOT give you a similar document stating you renounced citizenship.  You probably do not believe me, so again here is what the US State Department Says:

As the Department has received few requests, there is no justification for the creation of a non-citizen national certificate. Designing a separate document that includes anti-fraud mechanisms was seen as an inefficient expenditure of resources.

Our question is why not?  They view the non citizenship certificate as a waste of resources and want to save the poor tax-payers their hard earned money – but is there another reason?  After all, nationality and citizenship are defined as two different things even though these terms are often thought of by the general public as being synonymous and interchangeable. Why not simply offer a document that BOTH certifies loss of Nationality and loss of Citizenship at the same time?  What are the legal ramifications (if any) of relinquishing nationality (which under the legal term means oath of allegiance) but not renouncing citizenship (citizenship meaning a status conferred by a government as indicating membership, for lack of a better way to say it)?  If you can be a national without being a citizen – then can you be a citizen without being a national?  According to the US State Department's own wording above, nationality can be acquired without citizenship, being mentioned as a separate and stand apart status.

We are informed that the Fourteenth Amendment to the US Constitution does not provide any procedure for revocation of United States citizenship. Under the Supreme Court precedent of Afroyim v. Rusk, loss of 14th-Amendment-based U.S. citizenship is possible only under the following circumstances:

Fraud in the naturalization process (technically this is not loss of citizenship, but rather a voiding of the purported naturalization and a declaration that the immigrant never was a U.S. citizen).  Voluntary relinquishment of citizenship. This may be accomplished either through renunciation procedures specially established by the State Department or through other actions which demonstrate an intention to give up U.S. citizenship. Such an act of expatriation must be accompanied by an intent to terminate United States citizenship.

Why would someone need to declare intent to terminate US Citizenship IF they are relinquishing nationality or otherwise phrased: Why differentiate the two if they are in deed legally synonymous? Or are they?  Remember that in this context expatriation refers to nationality and one would conceivable need to request termination of citizenship as an independent and distinctly separate matter.


According to US Code 1101:

The term national means a person owing permanent allegiance to a state.  The term national of the United States means (A) a citizen of the United States, or
(B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.  The term naturalization means the conferring of nationality of a state upon a person after birth, by any means whatsoever.

In any event, all of this has been a philosophical exercise to probe and ask why there are differences in terminologies and if so, what legal or other distinctions might come with it.  After researching a number of white papers written on the subject by a plethora of lawyers from various countries specializing in international law, the bottom line is that the topic is a rabbit hole (and you may find yourself chasing rabbits with a clock around their neck as you try to figure it all out).  Each country has the right to define who is a national or their country and who is not.  In addition, issues of citizenship and how it is acquired also can differ from country to country.  So, the bottom line is, there is no one size fits all rule or statute internationally in terms of how nationality and or citizenship is determined.

Interestingly enough, the US State Department warns about the perils of dual nationality (they specifically use the term nationality and not citizenship). They claim one might fall into trouble because the laws might be different in one country versus what they are in the US, possibly leaving the US National with a problem.  Of course, they also conveniently leave out the part regarding the possible benefits and advantages of dual nationality (or dual citizenship) that might befall the US national as well.

To highlight this point, there was a situation a few years ago involving a US national (citizen) that went to the island nation of Antigua to set up an on-line gambling operation.  As it turned out, such a business was illegal in his previous home US State and for whatever reason he decided to not do the business in Las Vegas.  The gentleman, as it turns out, was quite successful with the business and apparently did very well financially living in and running his business from Antigua.  One day, the US men in black paid a visit to the island nation seeking the extradition of the former US National on the grounds he was violating US law.  They went to the Prime Minister of that country to personally present the kidnapping papers (excuse me, I meant to say very legal and lawful extradition documents).  Well, as it turned out, the Prime Minister told the US suits that they loved the particular person in Antigua.  He lawfully and legally set up a new business that generated new jobs and more importantly much needed additional tax revenue for the country.  He was a model citizen and paid all of his taxes.  Why in world should we extradite him – asked the Prime Minister? Well, replied the suits with the documents, he is doing something we do not like and is violating US law.  The Prime Minster replied – We are not in the US here and he is breaking NO laws at all in my country.  And that was the end of that.

Now, I am not suggesting you acquire another citizenship or nationality to set up a gambling business (although you can if you want to).  But, you can apply the general idea to a number of things, be it business ventures, investments, whatever the case may be.  Having another nationality or citizenship gives you options and choices.

Getting back to where we started, it would appear that renouncement of citizenship costs you 2300 bucks, but relinquishment of nationality costs you nothing.  So, that is seemingly where the rubber hits the road at least where you wallet is concerned.  Although I have no illusions that this will continue indefinitely as US Consulates are a revenue earning operation for the US Government.  I could expect to see them charge 2300 smackers for the questionnaire as mentioned above for the relinquishment process, even though technically your own affidavit should in theory suffice for such a purpose.

The decision to give up citizenship or nationality is a difficult one for some people and an emotional one in some cases as well.  However, we think it to be an act of survival for the middle class, small business owners and really anyone who holds the opinion that they do not want to be a burden on the government (in terms of welfare benefits, whatever) but on the same token, they do not want the government to be a burden upon them either (via reduced civil liberties and ever higher taxes to pay for a crumbling welfare state, not to mention bailouts for the banking industry).  With all that said, there are US citizens (and nationals) that will say they love their country and could never either renounce or relinquish.  Then again, if you speak with Tina Turner I am sure she will reply by asking the question: What's Love Got To Do With it?