Bricker misstated the current law of dual citizenship

Cecil's Columns/Staff Reports
1

The other thread pointed me to this very good article by Bricker, but I do have one quibble.

The last paragraph reads, in part, thus:

While, strictly speaking, this is true, it mischaracterizes the “risk.”

You cite the leading case in the area, Vance v. Terrazas. This case stands for the proposition that, in proceedings for loss of nationality, the government carries the burden to prove (by preponderance) that the person lost his citizenship both voluntarily and intentionally. And the “intent” portion of that proof may not be proved circumstantially. In Vance, an American citizen naturalized in Mexico (probably to avoid the draft), and in the course of doing so, made an explicit oath that he renounced his American citizenship. The Supreme Court held that this could be insufficient evidence to prove the “intent” requirement, although it did note that it would be sufficient to prove the “voluntariness” requirement. (See also Marshall, J., concurring, who felt that a “clear and convincing” would be more appropriate.)

Vance is substantially more complex than that, but the important part here is that the burden is on the government, not the citizen, to prove intent. And the contents of the oath are insufficient proof.

Ten years after Vance, the State Department adopted a new statement of evidentiary standards to be applied in expatriation cases. The new standard is even friendlier to dual citizenship than the Vance decision was. Under the new standard, if it comes to the attention of a U.S. consular officer that a U.S. citizen has performed a potentially expatriating act (under INA § 349), the consular officer will simply ask the citizen if there was intent to relinquish U.S. citizenship. If the answer is no, the officer will not pursue it any further. The only times that intent to retain citizenship is not assumed are now: [ol][] when you formally renounce it to a U.S. consular officer [§349(a)(5)], []when you take a policy-level position for a foreign state [§349(a)(4)(B); Kahane v. Shultz, 653 F.Supp. 1486 (E.D.N.Y. 1987)], []when you’re convicted of treason [§349(a)(7)], and []when you’ve done some unusually compelling behavior (not codified - never used)[/ol]In a nutshell, Bricker, I’m saying that you made dual citizenship seem scarier than it really is. It’s not “an obviously risky move.”

2

I’ll cop to a lesser plea here.

I was hesitant to invoke the State Department standards, simply because they are subject to unilateral revision by future administrations, and if the last few weeks are any lesson, changes from one administration to another can produce some dramatic shifts in governmental direction.

However, I’ll certainly acknowledge that “obviously risky” overstates the case. I wanted to bend over backwards to provide commentary that was both accurate and safe, and felt that the benefits of making one’s intentions upon accepting a foreign citizenship crystal clear were enough to justify the overly prudent language.

So, in a nutshell – you’re right. :smiley:

3

Sorry, but Randy is right – and more to the point, you should rewrite the final paragraph to make it clearer to the reader. Otherwise, this report is publishing misinformation.

You state: "U.S. statutory and case law provides that anyone who obtains naturalization in a foreign state loses U.S. citizenship, but only if this was done “with the intention of relinquishing United States nationality.”

What you should have said is: "U.S. statutory and case law provides that the only way for a U.S. citizen to lose their citizenship upon obtaining naturalization in a foreign state is if this was done “with the intention of relinquishing United States nationality.” (You can add the other details as well if you like – “must be 18, voluntarily” – they are immaterial.)

Further, as Randy points out, the burden is on the government, not the individual, to establish (by a preponderance of evidence) intent. This is a hugely important point which you ignore altogether.

The conclusions you reach – “it’s possible to pull this off”, “risky move”, “sitting in the UK, still a plain old single citizen” – are false and misleading. Anyone reading this report, presumably hoping to find some information on moving to the UK and becoming a citizen whilst retaining U.S. citizenship, would think there is a realistic chance that they would lose their U.S. citizenship (there isn’t)…and thus would have to look elsewhere for the straight dope.

(Also, since you’re a lawyer, and for the sake of writing a comprehensive report, you might have included some background vis-a-vie Kawakita v. U.S., 343 U.S. 717 (1952) and Mandoli v. Acheson, 344 U.S. 133 (1952).)

4

I still give Bricker kudos for tackling this question in the first place. I thought tax returns were bad, but doing immigration paperwork on my own (as a layman) and trying to guess the ramifications of this versus that was a stressful experience.

Here in Taiwan, this question is of some interest as at least one local legislator appears to have violated the constitution (and is subject to possible prosecution and having to pay back 10+ years of salary) by holding US citizenship while serving in the government. She claims that the mere act of becoming a legislator in a foreign state meant that her US citizenship was automatically invalidated. But as noted above, losing one’s citizenship isn’t nearly so automatic as she claims. Also, I wonder what the ramifications would be of serving in the government or armed forces of a state that the US patently doesn’t recognize?

5

There’s no excuse for spreading ignorance on a Straight Dope report, particularly after it’s been pointed out.

Frankly, I think it’s a damn shame that people looking for an answer to a relatively straightforward question are presented with misinformation on a site that has as its primary goal “fighting ignorance”.

6

I’m sorry, but I’m not as sanguine as you are on the near-complete absence of risk here, especially when much of it hinges simply on current State Department guidelines, which are subject to modification relatively easily.

For this reason, I’m comfortable with the overall tone of the report, subject to the admissions I made above.

7

::shrug::

If you’re happy publishing misinformation I guess that’s your prerogative. But make no mistake – your report is incorrect.

It’s a shame, since this is supposed to be the Straight Dope, but as I said hopefully people will look elsewhere for proper information.
ETA: And if you’re “comfortable with the overall tone of the report, subject to the admissions I made above” then why in the world wouldn’t you edit the report?

8

The current State Department policy has survived half the administration of George H.W. Bush, all of the Clinton administration, including the '96 overhauling of the immigration system, and all eight years of the George W. Bush administration, including the INS move to DHC.

And the fact that this policy could change is the reason you’re misstating the law?

Aren’t you concerned that someone who could truly benefit from getting dual citizenship might be needlessly dissuaded after reading your article?

If you’re interested, I can put you in touch with my immigration law professor. He was an assistant commissioner in the INS, he testified before the 9/11 commission on immigration law and security, and is widely published on immigration topics. He loves dual citizenship, and encouraged us all to get if it we can. PM me if you want his e-mail: he loves to talk about this stuff.

9

Ah, that does deserve further clarification.

I can’t directly edit reports.

I am preparing an edit to address the comments I made above, but I don’t have the immediate ability to change content on the website. Looking at the exchange above, I see it’s not crystal clear that when I say “…subject to the admissions I made above…” I mean to include those in a forthcoming change.

What I do mean is that this change will incorporate the factual corrections developed by this exchange, but retain a fair amount of the warning tone.

10

I would hope, in the interest of fighting ignorance, that you might also consider Randy’s excellent comments and offer of assistance.

11

John, your Private Messages are turned off, but I think it’s okay to put this here:

No, my professor does not have a website beyond the law school’s own website. That does not mean you’re out of luck, however. I would encourage you to seek out an immigration lawyer in your area. A lot immigration lawyers spend most of their time trying to figure out how to keep their criminal clients from being deported. I’m sure most of them would absolutely love to have a civilized and mature person seeking out their advice for a non-emergency. It might cost you a little bit of money to do a consultation, but really, the only good source of law concerning your specific circumstances is an attorney who knows your specific facts.

I’m only a law student, so I can’t give legal advice. But if you tell me what country you’re looking at emigrating to, I’d be happy to see if there’s anything I can dig up quickly.

12

Sorry about that Randy. I thought I had my PM on. I think I got it working now. I’m looking at various countries for dual citizenship because of the health care costs here in the states, and not having any trust in the health insurance companies here either. I have been giving serious thought to Costa Rica, and having a second home there, or some other South American country close to Texas which is where I currently live. I’m considering permanent guest status there too, which looks fairly easy to do.

I don’t want to put you out any, but if happen to have any cites that might be of some help to me, let me know. Hopefully my PM is working now.

I appreciate your participation in this thread along with leander’s and Bricker’s as well.

John

13

So…how long are we going to leave this misinformation up as a staff report?

14
  1. I’ve now personally alerted the people who have access to the report, just in case **Bricker **left someone out. Sometimes it takes a while to get a corrections made. I can tell you from personal experience that it is frustrating to have to wait for a requested correction. In the meantime, as Randy pointed out in his OP this is a very good article, with one part that requires correction. That part will get fixed. In the meantime, let me point out the not-so-fine print that appears at the bottom of each staff report:

(Emphasis added.)

  1. You’ve made your point. More than once now. Thank you. We get it. Please do not post to this thread again unless you have something substantive to add. **Bricker **has done all he can to fix the problem.

Gfactor
Moderator

For the record, this is not a formal warning.

15

I need very badly to post a clarification.

When I said that my professor would “love” to talk about this stuff, I meant that he would enjoy talking with a fellow lawyer or scholar about the subtleties of the law in an academic context.

If you are writing an article about immigration, citizenship, or refugee law, and want to interview him for such, I will put you in touch with him. If you need immigration or citizenship advice, hire a lawyer!

On a not-terribly-related note, razncain, a couple of quick searches did not turn up anything unusual about citizenship in Costa Rica. I would strenuously urge you to talk to a Costa Rican lawyer, or a U.S. lawyer who is well versed in Central American citizenship law.

16

I was wondering about that. :wink:

17

I was not aware that there is a lengthy wait to edit Staff reports. I appreciate you alerting TPTB about this report.

You’re welcome.

18

So…any update?

19

I have an update.

After reading your note, I fired up an e-mail wondering why the revision I had sent in was not posted, and after composing it, thought I’d attach a copy of my original mail to highlight the long wait time.

At which point I discovered that I had failed to send the initial e-mail. It’s sitting in my Drafts folder, and I don’t know why it it didn’t go when I hit ‘send’ but it obviously didn’t. So while I griped above about delays in posting that were out of my control, this was a delay in posting that was solidly IN my control. :frowning:

Thank you for bringing this to my attention.

20

No worries. Thanks for following up with this. I look forward to reading the revised version.