Earlier this month The Kaplan Law Firm convinced the United States Department of State to restore the citizenship of a client of the firm. The client, who resides in Western Europe, had renounced her citizenship several years ago. She had subsequently sought to have the State Department vacate the Certificate of Loss of Nationality (CLN) issued to her, but, prior to the involvement of The Kaplan Law Firm, the Department had repeatedly refused to do so. The Kaplan Law Firm provided new evidence and legal arguments which convinced the Department to reverse its position and to conclude that, at the time the client signed her citizenship renunciation papers, “that it [was] more likely than not that [the client] was unable to act with full appreciation of the consequences of her actions and, therefore, that she did not renounce with the requisite knowing intent to lose her U.S. citizenship.” The Department’s decision was retroactive–the client will be treated as never having lost her citizenship.
Statistics on revocations of CLNs are not available, but it appears that it is highly unusual for the Department to restore citizenship when a person has lost it by renunciation.
The client’s citizenship renunciation case was not unusual. Millions of persons who live outside the U.S. and are citizens of other countries are also American citizens because they were born in the U.S. or because they had an American parent who met the criteria for passing citizenship on to their children. The number of dual nationals who renounce U.S. citizenship has likely increased dramatically in the wake of Congress’ 2010 passage of the Foreign Account Tax Compliance Act (FATCA). The Act, which was meant to decrease tax evasion, imposes burdensome reporting requirements on non-U.S. financial institutions who deal with overseas U.S. citizens, regardless of whether they are dual nationals. As a practical matter, the law has made it difficult for some U.S. dual nationals to engage in routine financial transactions in the countries in which they reside. Indeed, some individuals have reported that FATCA has had a devastating impact on their finances. Renunciation provides a means to escape the burden imposed by FATCA. Unfortunately, some dual nationals, faced with FATCA -imposed burdens, have renounced their U.S. citizenship without appreciating or understanding the gravity of that decision.
The United States Supreme Court ruled in 1967 in the landmark case of Afroyim v. Rusk that the Fourteenth Amendment to the United States Constitution provides that each citizen has “a constitutional right to remain a citizen…unless he voluntarily relinquishes that citizenship.” Consequently, as the Supreme Court emphasized in a subsequent case, Vance v.Terrazas, renunciation is only valid if it is done “voluntarily.” A person asserting that the State Department has erroneously determined that that person voluntarily renounced his or her citizenship must prove by a preponderance of the evidence that that renunciation was not voluntary. The State Department has a highly informal administrative process for reviewing claims of persons who seek to reverse a Certificate of Loss of Nationality issued to them. A person who is unhappy with the State Department’s decision can subsequently seek relief in federal court.
In light of the informality of the State Department process, most people seeking to vacate a CLN probably initially make their arguments to the Department without obtaining any independent legal advice. However, anyone seeking to reverse a CLN in a citizenship renunciation case would be well advised to consult with an attorney knowledgeable in this area of law before contacting the Department–the law on the loss of U.S. citizenship is not always intuitive and we have seen several cases in which individuals have written letters to State in an unsuccessful effort to withdraw their renunciation in which they inadvertently make statements that gravely undercut their case. It is important to recognize that an immigration attorney may not be familiar with U.S. law relating to citizenship renunciation issues. Matthew B. Kaplan, The Kaplan Law Firm’s Principal Attorney, was a Foreign Service Officer with the State Department for a decade and a half.