This post will describe several common US citizenship situations for the purpose of demonstrating the various differences as to how US citizenship may be derived and how it may be lost.<\/p>\n
Ms. X was born in the United States. \u00a0She is a US citizen by birth. \u00a0Her US citizenship is self-executing and non-consensual. \u00a0Her birth certificate is all that is needed to establish her citizenship.<\/p>\n
Let\u2019s say she goes to Canada and enters as a landed immigrant. \u00a0Her entry into Canada as a landed immigrant is not itself an expatriating act. \u00a0Section 349(a)(1) and (2) of the Immigration and Nationality Act provide that swearing an oath of allegiance to a foreign sovereign is an expatriating act if taken with intent to set aside US citizenship. \u00a0As soon as Ms. X swears the Canadian citizenship oath before a Canadian Citizenship Court, she will become a Canadian citizen. \u00a0If she swears the oath with intent to set aside her US citizenship, she will then complete a Form DS-4079 and establish that she relinquished her US citizen upon becoming a Canadian citizen. \u00a0Her oath of allegiance to Canada is sufficient when combined with her statement of intent to extinguish her US citizenship. \u00a0However, the mere fact of becoming a landed immigrant is not sufficient as it does not involve the taking of an oath of allegiance and thus, by itself, is not sufficient to expatriate her.<\/p>\n
Mr. Y was born in Canada to a Canadian father and a US citizen mother who resided in the US long enough to give her the right to pass on US citizenship to him. \u00a0However, his mother takes no steps to register his birth abroad or otherwise assert US citizenship and he has not done so either. \u00a0Mr. Y is not a US citizen automatically, that is, his citizenship is not self-executing. \u00a0The language in the Section 301(a) states: “The following shall be nationals and citizens of the United States at birth:” [at which point the section lists seven subcategories, including subsection 7 dealing with children born outside the United States “of parents one of whom is an alien, and the other a citizen”]. \u00a0\u00a0\u00a0Most people, including virtually all US lawyers interpret the “shall” to be mean Mr. Y automatically became a US citizen at birth.<\/p>\n
However, I believe that “shall” in the context of subsection 7, where one of the child’s parents is not a US citizen and the child has obtained citizenship by birth or heritage of a country other than the United States, to mean that the child has the absolute right to US citizenship upon providing adequate proof of his heritage AND that his US citizen parent meets the residence requirements of the section.<\/p>\n
However, Mr. Y\u2019s citizenship is not \u201cself-executing\u201d. \u00a0Someone must do something to establish his citizenship. \u00a0\u00a0His mother did not obtain a certificate of registration of birth abroad before Mr. Y turned 18 and cannot now do so. \u00a0\u00a0Mr. Y has not yet sought to assert US citizenship by obtaining proof of same which he would do by obtaining a US passport. \u00a0That process would require him to present evidence of his US citizenship. \u00a0He is, of course, free to do that at any time he wishes. \u00a0However, until he takes some action, his US citizenship in an “inchoate right”, that is, something that he can assert and cannot be taken away from him by the US government. \u00a0Clearly, he must be a \u201ccitizen\u201d to obtain a passport. \u00a0However, being \u201centitled\u201d to citizenship is not the same as \u201cbeing\u201d a citizen. \u00a0In other words, US citizenship in Mr. Y\u2019s case is not self-executing.<\/p>\n
In the absence of any action taken by Mr. Y, the question then turns to whether the US government could force him to obtain a US passport. \u00a0Indeed, there is no case in which the US government has forced a person in Mr. Y\u2019s position to obtain a US passport. \u00a0Thus, the “automatic” citizenship position fails. \u00a0The real question turns on whether US citizenship for those born outside the United States is mandatory. \u00a0Clearly, it is not.<\/p>\n
As a practical matter, Mr. Y has nothing in his official citizenship file in the United States. \u00a0His Canadian passport indicates a place of birth in Canada. \u00a0Thus, there is no outward evidence that he is a US citizen and, in the absence of obtaining a US passport, nothing to identify him as a US citizen. \u00a0Both as a legal and practical matter, Mr. Y is not a US citizen and is not identifiable as a US citizen. \u00a0He may, of course, choose to apply for a US passport and will undoubtedly obtain one should he do so.<\/p>\n","protected":false},"excerpt":{"rendered":"
This post will describe several common US citizenship situations for the purpose of demonstrating the various differences as to how US citizenship may be derived and how it may be lost. Ms. X was born in the United States. \u00a0She is a US citizen by birth. \u00a0Her US citizenship is self-executing and non-consensual. \u00a0Her birth…<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[10],"tags":[],"class_list":["post-1148","post","type-post","status-publish","format-standard","hentry","category-us-citizenship"],"_links":{"self":[{"href":"https:\/\/www.flottco.com\/doingbusinessacrossborders\/wp-json\/wp\/v2\/posts\/1148","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.flottco.com\/doingbusinessacrossborders\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.flottco.com\/doingbusinessacrossborders\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.flottco.com\/doingbusinessacrossborders\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.flottco.com\/doingbusinessacrossborders\/wp-json\/wp\/v2\/comments?post=1148"}],"version-history":[{"count":0,"href":"https:\/\/www.flottco.com\/doingbusinessacrossborders\/wp-json\/wp\/v2\/posts\/1148\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.flottco.com\/doingbusinessacrossborders\/wp-json\/wp\/v2\/media?parent=1148"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.flottco.com\/doingbusinessacrossborders\/wp-json\/wp\/v2\/categories?post=1148"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.flottco.com\/doingbusinessacrossborders\/wp-json\/wp\/v2\/tags?post=1148"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}