Volume 7 of the U.S. Department of State Foreign Affairs Manual (FAM) sets out the legal basis upon which Consular Officers are to deal with the loss of U.S. citizenship.  In a nutshell 7 FAM 1211 states that US citizens cannot lose their citizenship involuntarily.  Instead, a US citizen must establish that he or she committed an expatriating act “(1) voluntarily and (2) with the intention of relinquishing U.S. citizenship.” (Emphasis in original)  The FAM goes on to say that the person asserting loss of citizenship has the “burden of proof” by a preponderance of the evidence.  However, there is no detailed discussion of what kind of evidence would be sufficient to establish expatriating intent.

In effect, the FAM leaves Consular Officers on their own to determine whether evidence presented by a former US citizen meets the required burden of proof. The lack of clear guidance increases the likelihood that of inconsistent treatment of relinquishment requests.  In effect, committing  an expatriating act is clear enough – a person either takes an oath of allegiance to another sovereign or not – but establishing that that act was done voluntarily and with intent to relinquish US citizenship is harder. Voluntariness is relatively easy to prove, as it would be clear from the circumstances surrounding the  completion of the steps necessary to become a naturalized citizen of a foreign country.

Establishing the “intent to relinquish” is harder, as it lies in the mind of the person taking up citizenship in his or her new country.  In discussing relinquishment with clients, Flott & Co. heard a lot of anxiety about meeting the burden of proof.  The concern arose particularly when a US Consular Officer voiced skepticism about the “intent” of a former US citizen who, for any number of reasons, sought to establish the loss of US citizenship as of a date years before.

The skepticism appeared to be based on the fact that the former US citizen did not take formal action to renounce her US citizenship upon becoming a foreign citizen. The Consular Officer’s opinion overlooked the fact that there is no obligation on US citizens to advise the US that they have committed an expatriating act.  Furthermore, the loss of citizenship does not require US citizens to formally renounce citizenship if they have voluntarily and with intent committed one of the specified expatriating acts.  Indeed, until recently, there would have been little reason for former US citizens to formally renounce their citizenship.

It is certainly appropriate that individuals wishing to confirm that they voluntarily gave up US citizenship at a date in the past have to substantiate that intent by actions taken since that date.  Not renewing US passports, not obtaining US citizenship for children, not voting in US elections, not filing US tax returns (except, of course, as non-resident aliens for US source income on Form 1040 NR), or not seeking to enter the US other than as an alien, all testify to the past intent to expatriate.

There is considerable risk of inconsistent treatment of relinquishment requests when consular officers are left to make judgments about “burden of proof” issues without clear guidelines to follow.  The FAM should include a discussion of the factors that should be taken into account in evaluating what kind of evidence would satisfy the burden of proof, such as consistent subsequent acts evidencing the intent to expatriate.

Flott & Co.’s recent communication with the Department of State includes a request to address the absence of adequate guidance on establishing the appropriate burden of proof required  for Certificates of Loss of Nationality of the United States(“CLN”).