United States Nationality Law - Loss of Citizenship

Loss of Citizenship

As a historical matter, U.S. citizenship could be forfeited upon the undertaking of various acts, including naturalization in a foreign state or service in foreign armed forces. In addition, before 1967 it was possible to lose the citizenship due to voting in foreign elections. However, the Supreme Court ruled unconstitutional the provisions of Section 349(a) which provided for loss of nationality by voting in a foreign election in the case Afroyim v. Rusk, 387 U.S. 253, . 8 U.S.C. § 1481 specifically outlines how loss of nationality may occur, which predominantly involves willful acts over the age of 18 with the intention of relinquishing United States nationality. U.S. Supreme Court decisions beginning with Afroyim v. Rusk constitutionally limited the government's capacity to terminate citizenship to those cases in which an individual engaged in conduct with an intention of abandoning their citizenship.

Current U.S. State Department rules automatically assume that an individual does not intend to give up citizenship when performing one of the above potentially expatriating acts. If asked, the individual can always answer that they did not intend to give it up; this is sufficient to retain their citizenship. Hence, the U.S. effectively allows citizens to acquire new citizenships while remaining a U.S. citizen, becoming a dual citizen.

There are also special provisions for persons who are deemed to have renounced citizenship for purposes of avoiding U.S. taxation (which is, in some cases, applicable on certain income for up to ten years after the official loss of citizenship, Internal Revenue Code, section 877), which in theory can result in loss of right to entry into the United States. However, the loss of right of entry (8 U.S.C. § 1182(a)(10)(E)) has never been enforced by the Attorney General since its enactment in 1996. Further, since the creation of the Department of Homeland Security in 2002, the Attorney General (Department of Justice) would no longer be empowered to bar a former U.S. citizen from entering the United States.

No new legislation has modified 8 U.S.C. § 1182(a)(10)(E) to enable the DHS Secretary to bar a former U.S. citizen from entering the United States. Lastly, IRC section 877 and Revenue Rulings was modified in 2004 to discontinue the practice of the Internal Revenue Service issuing rulings to determine if a former U.S. citizen had a tax-related motive in renouncing U.S. citizenship. Instead, IRC section 877 establishes an objective test to determine if the section 877 regime will apply.

If the former U.S. citizen fails one of these objective tests, for ten years after the individual's expatriation they are subject to the 877 regime. In practice, given the various modifications since the enactment of 8 U.S.C. § 1182(a)(10)(E), that the U.S. government has never enforced 8 U.S.C. § 1182(a)(10)(E) since its inception in 1996, a former U.S. citizen may freely travel to the U.S. subject to normal visa restrictions.

After a U.S. citizen satisfies the Department of State procedures, the Department of State issues a Certificate of Loss of Nationality (CLN) signifying that the Department of State has accepted the U.S. Embassy/Consulate's recommendation to allow the renunciation. Renunciation of citizenship includes renunciation of all rights and privileges of citizenship. A person who wants to renounce U.S. citizenship cannot decide to retain some of the privileges of citizenship, as this would be logically inconsistent with the concept of renunciation. Thus, such a person can be said to lack a full understanding of renouncing citizenship and/or lack the necessary intent to renounce citizenship, and the Department of State will not approve a loss of citizenship in such instances.

It is also possible to forfeit U.S. citizenship upon conviction for an act of treason against the United States. Prominent former Nazi officers who acquired American citizenship have also had it revoked if the Office of Special Investigations has been able to prove that the citizenship was obtained by concealing their involvement in war crimes committed by the Nazis in World War II.