Flott & Co. recently contacted the Department of State, suggesting that Volume 7 (Consular Affairs) of the US Department of State Foreign Affairs Manual (“FAM”) be revised. Specific guidance is needed for cases when former US citizens living abroad wish to establish that they relinquished their US citizenship at a date in the past and a Consular Officer is not satisfied that they have met the burden of proof. There is no procedure currently in place for a Consular Officer to follow in such a circumstance. Indeed, there is no specified time limit within which a Consular Officer must forward a request for a Certificate of Loss of Nationality (CLN) to the Department of State.
For a number of reasons, former US citizen living abroad are now seeking proof that they relinquished their citizenship at a past date by applying for a backdated Certificate of Loss of Nationality. Approval of this application can only be made by the Office of American Citizen Services and Crisis Management in Washington, DC. We have already discussed what constitutes an expatriating act, and that Consular Officers have unclear guidance on what evidence meets the threshold for establishing a past loss of citizenship. More troubling, however, is there is no clear instruction what happens if a Consular Officer does not believe the facts submitted substantiate a loss of nationality.
It is clear from the manual that a person applying for a CLN can seek administrative review of an adverse decision (in this case a finding of non-loss). However, it is not clear when this decision would be made, or how the applicant would learn of the outcome. FAM 1221 ¶e discusses what happens when a decision is made at the consular level to prepare a CLN. It does not address what happens if the consular officer decides not to issue a CLN. 7 FAM 1221 also does not address time limits by which consular officers must report their findings in CLN cases to Washington.
The administrative review available in 7 FAM 1230 can only be accessed when the person seeking it has had a CLN denied. Obviously, timeliness is important in these cases. The FAM should contain rules that direct consular officers to process and forward CLN cases to the appropriate office in Washington, DC within a specific period of time and notify the affected person of the action taken and the date forwarded to Washington, DC. The absence of such rules unacceptably leaves former U.S. citizens in limbo as to the disposition of their cases.