7 fam 1200 aPPENDIX g
POSTHUMOUS LOSS OF NATIONALITY
(CT:CON-804; 04-30-2018)
(Office of Origin: CA/OCS)
7 FAM 1210 Appendix G Introduction
(CT:CON-256: 05-15-2008)
a. In reviewing posthumous loss of citizenship cases,
it is important to emphasize that the burden of proof always rests upon the
shoulders of the party asserting that a loss has occurred. It is also
important to keep in mind that each case needs to be considered on its own
merits.
b. The latter caveat notwithstanding, in instances when
a finding of loss has not been made prior to a U.S. citizens death, the Bureau
of Consular Affairs, Directorate of Overseas Citizens, Office of American
Citizens Services and Crisis Management (CA/OCS/ACS) would be reluctant to
approve a Certificate of Loss of Nationality (CLN) posthumously, and such
approvals are in fact rare. Our reticence is due to the fact that we did not
have, prior to death, an opportunity to ascertain from the concerned individual
whether his/her commission of the statutory act of expatriation was done
voluntarily with the intent to relinquish U.S. citizenship.
c. CA/OCS/ACS could approve a CLN for an individual
who, while competent and not acting under duress or undue influence, executed
an oath of renunciation but whose death preceded the arrival in CA/OCS/ACS of
the paperwork attendant to the oath. In such an instance, the posthumous
approval of the CLN would serve to give effect to the intent of the deceased U.S. citizen clearly articulated prior to death.
d. CA/OCS/ACS would consider approving a CLN in a
situation when the deceased U.S. citizen had, prior to or upon completing the
standard questionnaire to determine citizenship, advised a consular officer in
writing that he/she had or was about to commit an act of expatriation (and the
citizen ultimately performed the expatriating act). The communication must
indicate unequivocally that the individual was acting voluntarily, fully
intending to relinquish his/her U.S. citizenship. Such a written statement to
a consular officer indicates that the citizen had reflected upon the
consequences attendant to his/her actions and their impact upon his/her
citizenship. Therefore, absent any countervailing documentation or other
conduct that would put into question the truthfulness or bona fides of the
citizens assertions to the consular officer, a cogent argument in such a case
could be made that the preponderance of the evidence reflects the occurrence of
loss of citizenship.
e. On a case-by-case basis, CA/OCS/ACS could consider a
request for the issuance of a CLN when an individual who has committed or is on
the threshold of committing an act of expatriation has written in a diary,
executed an affidavit before someone other than a consular officer, sent a
letter to a disinterested third party, etc. that his/her actions in committing
the expatriating act were done voluntarily with the intent of relinquishing
citizenship. In such cases, the consular officer, in addition to ensuring the
bona fides of the written communication, should examine the individuals
conduct subsequent to performing the expatriating act in an effort to ascertain
whether it was consistent with the written expression of intent.
f. Finally, since citizenship is a status personal to
the individual, absent written documentation from the deceased, CA/OCS/ACS
would find it extremely difficult to approve a CLN predicated solely upon the
statements of third parties with respect to the intentions of the deceased
vis--vis his/her U.S. citizenship or with respect to alleged oral statements
of the deceased.
7 FAM 1220 Appendix G Posthumous
Review of Loss of U.S. Nationality
(CT:CON-407: 06-29-2012)
a. When a finding of loss has already been made (i.e.,
CA/OCS/ACS (or its predecessor organization) had already approved the CLN) and
the late, former U.S. citizen had indicated to the Department in writing (e.g.,
executed the standard questionnaire to determine citizenship) that he or she
had indeed committed the act of expatriation voluntarily with the requisite
intent to relinquish, the Office of Legal Affairs (CA/OCS/L) would be extremely
hesitant to recommend reversal of the earlier decision absent compelling
evidence that is contemporaneous with the act of expatriation that demonstrates
that the deceaseds actions were either involuntary or that he/she lacked the
intent to relinquish. CA/OCS/L generally would not accept self-serving
assertions from any possible interested third party. CA/OCS/L could, however,
consider the documented opinions from disinterested third parties (e.g., mental
health professionals, attending physicians) who might be able to shed light
upon the state of mind of the individual at the time of the commission of the
expatriating act.
b. When a finding of loss has been made and the
Departments files do not reflect in any way that the individual intended to
give up U.S. citizenship, CA/OCS would not continue to sustain that finding and
CA/OCS/L would subsequently vacate the CLN. For example, prior to the U.S.
Supreme Court finding in Afroyim, the Department presumed or did not require
intent to relinquish citizenship. If a loss of nationality file from this
earlier period reflected this decision making, CA/OCS would instead apply
current standards for adjudicating loss, which require intent to relinquish
citizenship, and may include the administrative presumption that a citizen
intends to retain U.S. citizenship under specified circumstances.
c. When a finding of loss has been made and the
statutory basis for the CLNs issuance has been ruled unconstitutional, it
would be incumbent upon the Department to posthumously vacate the CLN.
d. Following the cancellation of the CLN, the
Department should, when appropriate, be prepared to approve the consular report
of death abroad of a U.S. citizen and issue documentation to any offspring of
the deceased American who have or have not been previously documented as U.S. citizens.
e. CA/OCS/L should advise pertinent federal agencies of
the reversal of the finding of loss of nationality in accordance with 7 FAM 1240.
7 FAM 1230 Appendix G through 1290
Appendix G Unassigned