7 FAM 1290
MINORS, INCOMPETENTS, PRISONERS, PLEA BARGAINS, CULTS AND
OTHER SPECIAL CIRCUMSTANCES
(CT:CON-804; 04-30-2018)
(Office of Origin: CA/OCS)
7 FAM 1291 Introduction
(CT:CON-285; 03-06-2009)
This subchapter addresses somewhat unusual questions that
arise regarding loss of nationality. These are situations that consular
officers should bring to the attention of the Directorate of Overseas Citizens
Services (CA/OCS) to obtain specific guidance not provided in 7 FAM 1200.
7 FAM 1292 LOSS OF NATIoNALITY AND
MINORS
(CT:CON-751; 11-22-2017)
a. Occasionally, CA/OCS or a post abroad will receive
an inquiry from the parent of a child born in the United States who acquired U.S.
citizenship at birth protesting the involuntary acquisition of U.S. citizenship.
b. Jus soli (the law of the soil) is a rule of common
law under which the place of a persons birth determines citizenship. In
addition to common law, this principle is embodied in the 14th Amendment to the
U.S. Constitution and the various U.S. citizenship and nationality statutes.
The 14th Amendment states, in part, that: All persons born in the United
States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
c. In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the
U.S. Supreme Court examined at length the theories and legal precedents on
which the U.S. citizenship laws are based and, in particular, the types of
persons who are subject to U.S. jurisdiction.
d. Children born in the United States to diplomats
accredited to the United States are not subject to U.S. jurisdiction and do not
acquire U.S. citizenship under the 14th Amendment or the laws derived from it
(see 7 FAM 1111 d).
e. Parents or guardians cannot renounce or relinquish
the U.S. citizenship of a child who acquired U.S. citizenship at birth.
f. A minor who was naturalized through naturalization
of parent prior to the Nationality Act of 1940 did not lose citizenship unless
voluntary transfer of allegiance by the minor was shown. Any such finding of
loss of nationality under the Act of 1907 would now be subject to
administrative review in light of the U.S. Supreme Court decisions in Afroyim
v. Rusk and Vance v. Terrazas. (See 7 FAM 1230.)
g. Age limitations in the INA: INA 349(a)(1), INA
349(a)(2) and INA 349(a)(4) contain specific provisions limiting their
applicability to a person having attained the age of eighteen years. No
finding of loss of nationality may be made for these acts committed by a person
under the age of eighteen.
h. Child soldiers: INA 349(a)(3) does not include a
reference to age. If a case comes to a consular officers attention of a
child soldier serving in the armed forces of a foreign state engaged in
hostilities against the United States, the post should immediately bring the
matter to the attention of CA/OCS/L (Ask-OCS-L@state.gov) which will confer
with the Office of the Assistant Legal Adviser for Consular Affairs (L/CA) and
provide the post with specific guidance on how to proceed. The post should
include the name of the child, date and place of birth, proof of U.S. citizenship and information available regarding the foreign military service. The
e-mail alert should be followed by a formal cable report. (See also 7 FAM 1270.)
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NOTE: INA 351(b) (8 U.S.C. 1483) provides that a
national who within six months after attaining the age of eighteen years
asserts his claim to U.S. nationality, in such manner as the Secretary of
State shall by regulation prescribe, shall not be deemed to have lost United
States nationality by the commission, prior to his eighteenth birthday, of
any of the acts specified in paragraphs (3) and (5) of Section 349(a) of this
title.
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i. Renunciation of U.S. citizenship and minors:
(1) Consult CA/OCS/ACS: Whenever you receive a
request to renounce from a minor you immediately must contact CA/OCS/ACS.
CA/OCS/ACS will not approve a Certificate of Loss of U.S. Nationality (CLN) for
a minor without the concurrence of CA/OCS/L, and appropriate consultation with
L/CA;
(2) Voluntariness and intent: Minors who seek to
renounce citizenship often do so at the behest of or under pressure from one or
more parent. If such pressure is so overwhelming as to negate the free will of
the minor, it cannot be said that the statutory act of expatriation was
committed voluntarily. The younger the minor is at the time of renunciation,
the more influence the parent is assumed to have. Even in the absence of any
evidence of parental inducements or pressure, you and CA must make a judgment
whether the individual minor manifested the requisite maturity to appreciate
the irrevocable nature of expatriation. Absent that maturity, it cannot be
said that the individual acted voluntarily. Moreover, it must be determined if
the minor lacked intent, because he or she did fully understand what he or she
was doing. Children under 16 are presumed not to have the requisite maturity
and knowing intent;
(3) Interviewing a minor: When conducting the initial
interview with a minor and during the renunciation procedure, you should have
at least one other person present. The parents and guardians should not be
present. As noted, the interview should take place in the presence of the
consular officer and a witness, preferably another consular officer, another
Foreign Service officer (nonconsular) or locally employed staff (LE staff).
You should also explain that upon reaching the age of 18, the minor has a
six-month opportunity to reclaim U.S. nationality. See 7 FAM Exhibit 1292,
A Sample Letter to Accompany CLN for Minor Renunciants, which should be
provided to minor renunciants together with an approved CLN;
(4) Consular officers opinion: You should fully
document every interaction with the minor and explain in your consular
officers opinion the reasons you believe that the minor is, or is not, mature
enough and sufficiently knowing to renounce.
7 FAM 1293 MENTAL COMPETENCY
(CT:CON-407; 06-29-2012)
a. Because loss of U.S. nationality occurs only when a
would-be renunciant or person signing a statement of voluntary relinquishment
has the legal capacity to form the specific intent necessary to lose U.S. nationality, cases involving persons with established or possible mental incapacity
require careful review. This includes mental disability, mental illness,
developmental impairment, Alzheimers disease, and similar conditions. It may
also include cases of substance abuse.
b. A formal finding of mental incompetency by a court
of competent jurisdiction, whether in the United States or abroad, precludes a
finding that an individual has the requisite intent.
c. The requisite intent may also be found lacking if
there is evidence that due to mental incapacity or impairment the individual
does not understand the seriousness of renunciation, including its irrevocable
nature and the major consequences that flow from it.
d. Voluntariness may also be an issue with persons who
suffer from mental incapacity or impairment, as such individuals may be
especially susceptible to the influence of others.
e. Parents, guardians and trustees cannot renounce or
relinquish the U.S. nationality of a citizen lacking full mental capacity: A
guardian or trustee cannot renounce on behalf of the incompetent individual
because renunciation of ones citizenship is regarded, like marriage or voting,
as a personal elective right that cannot be exercised by another. Should a
situation arise of the evident compelling need for an incapacitated person to
relinquish citizenship, you are asked to consult CA/OCS/L for guidance.
f. Importance of reporting consular observations and
relevant facts: An individual who behaves irrationally, belligerently or
otherwise unusually may give you reason to question whether he or she has the
mental capacity to formulate the intent required to lose U.S. nationality
and/or whether he or she is subject to undue influence. You should document
all the persons actions and behavior and give your impression of his or her
ability to understand the nature and consequences of renunciation. You also
should observe and document the behavior of any individual who appears to be
attempting to influence the individual to renounce.
g. While you are not making a clinical diagnosis, your
description of the individuals demeanor, behavior, statements, and your
assessment of the persons mental and emotional state are very important in
making a determination whether the person is capable of formulating the intent
to lose U.S. nationality and/or is acting voluntarily. This assessment must be
sent to the Department (CA/OCS/ACS) as part of your consular officer opinion.
h. Accepting the renunciation or relinquishment: You
may accept the renunciation or voluntary relinquishment of troubled citizens
who insist on exercising their right to renounce. Acceptance does not
constitute approval which, by statute (INA 358; 8 U.S.C. 1501) can only occur
in the Department. If the Department concludes that the facts rebut the
presumption of voluntariness, the Department may decline to approve the
Certificate of Loss of Nationality. Permitting such a person to attempt to
exercise his or her right to renounce may alleviate tension or conflict on the
scene, while reporting the circumstances surrounding the act and the persons
demeanor will enable the Department to protect the citizenship of such an
individual incapable of forming the requisite intent and voluntariness. The
person seeking or claiming loss of citizenship has the burden of establishing
knowing intent based on a preponderance of the evidence. Involuntariness may
also be established by a preponderance of the evidence.
7 FAM 1294 PRISONERS, FUGITIVES AND
PLEA AGREEMENTS
7 FAM 1294.1 U.S. Citizens
Imprisoned or Under Other Form of Detention Abroad
(CT:CON-407; 06-29-2012)
a. The inherently coercive nature of incarceration and
other governmental detention generally is sufficient to rebut the statutory
presumption of voluntariness that is required for a renunciation to result in
loss of nationality.
b. Only in the rarest of instances will CA authorize a
consular officer to accept the renunciation of U.S. nationality of a U.S. citizen or noncitizen national who is incarcerated or detained by foreign government
authorities.
c. You must report to CA/OCS/ACS any case where a
prisoner or detainee indicates a desire to renounce citizenship.
d. CA/OCS/ACS, with CA/OCS/L and L/CA concurrence, will
provide specific instructions.
e. A prisoner who has renounced may later claim that he
or she did not renounce voluntarily, but rather was motivated by the compulsion
to avoid deportation, extradition, or imprisonment.
f. If CA/OCS/ACS authorizes the renunciation to
proceed:
(1) You must interview the prisoner/detainee in
private so as to avoid any perception or appearance of coercion from prison
officials;
(2) If at all possible, the oath should be taken at
post and you may need to make arrangements with prison officials, local police
and the posts security officer to have the prisoner escorted;
(3) If you cannot make these arrangements for whatever
reason, contact the Department (CA/OCS/ACS) for guidance;
(4) Security and your safety are a major concern in
prisoner renunciation cases. If a prisoner is dangerous or a flight risk, you
may need to make arrangements to administer the renunciation at the prison or
at another secure location. Guards may need to be present as well but you must
make every effort to keep the potentially coercive effect of their presence to
a minimum. This may involve administering the oath within the guards sight
but physically removed from their hearing. You must get the approval of the
Department (CA/OCS/ACS) to implement such procedures.
7 FAM 1294.2 Fugitives from
Justice
(CT:CON-751; 11-22-2017)
a. Persons facing criminal charges in the United States or elsewhere may seek to renounce.
b. They may express a reluctance to come to post for
fear of being apprehended by authorities and may request to be permitted to
renounce at another location.
c. You immediately must alert CA/OCS, CA/PPT/L/LE, the
RSO and L/LEI to any case in which CLASS or other information received by you
indicates the potential renunciant is or may be a fugitive from justice. You
must report immediately any case of a U.S. citizen who is the subject of an
extradition or deportation request by the United States who inquires about
renunciation of citizenship to CA/OCS and L/LEI. (See 7 FAM 1600, Extradition,
and 7 FAM 2040,
Deserters, Stragglers and Fugitives from Justice)
7 FAM 1294.3 Plea Bargain
Agreements with U.S. Prosecutors and Renunciation or Relinquishment of U.S.
Nationality
(CT:CON-449; 03-25-2013)
a. The terms of a plea agreement between U.S. Federal
or State prosecutors and a criminal defendant may include a provision that the
person renounce U.S. nationality in exchange for reduced penalties.
b. If such a person comes to you seeking to renounce,
you must notify CA/OCS/ACS before proceeding. CA/OCS/ACS will coordinate with
CA/OCS/L, L/CA, and L/LEI. Issues are raised by such an arrangement that some would
liken to banishment when a citizen at birth is involved.
c. If authorized by CA/OCS/ACS to proceed, follow the
same procedures as with any other potential renunciant. (See 7 FAM 1260.)
You should very carefully and fully document the case and, in particular, the
facts in support of voluntariness and intent, as the renunciant may claim lack
of intent or involuntariness in the future.
d. It is not your role to enforce the plea agreement
and you should make no comment on it to the renunciant.
e. Inter-agency liaison with the U.S. Department of
Justice, Federal or State prosecutors will be done by CA/OCS/L
(Ask-OCS-L@state.gov), in coordination with L/CA and L/LEI.
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See
U.S. Department of Justice, Opinion of the Office
of Legal Counsel, Voluntariness of Renunciations of Citizenship Under 8
U.S.C. 1481, 8 Opinion of the Office of Legal Counsel 220, September 27, 1984
Renunciation Undertaken as Part of Agreement with Federal Prosecutors not
to Proceed with Denaturalization or Deportation Proceedings if Subjects of
Investigation Agreed to Renounce Their U.S. Citizenship
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7 FAM 1295 DEFECTORS, DESERTERS AND
PERSONS AVOIDING SELECTIVE SERVICE
(CT:CON-751; 11-22-2017)
a. You must consult CA/OCS/ACS if you receive a request
for renunciation of relinquishment of U.S. citizenship in the case of a
defector, deserters or person avoiding Selective Service.
b. Renunciation of U.S. nationality may not affect the
obligation that members of the U.S. military are under to complete this
service. (10 U.S.C. 504 (b)(1) provides that a person may be enlisted in any
armed force if the person is a national of the United States; an alien who is
lawfully admitted for permanent residence. The statute also provides
notwithstanding paragraph (1), the Secretary concerned may authorize the
enlistment of a person not described in paragraph (1) if the Secretary of
Defense determines that such enlistment is vital to the national interest.)
c. Loss of nationality may not affect a persons
obligation to register with the Selective Service System. The Selective
Service System operates with permanent authorization under the Military
Selective Service Act (U.S.C. App. 451; 50 U.S.C. App 460; 32 CFR 1600
1699). With few exceptions, all male United States citizens (including dual
nationals) and male aliens residing in the United States and its territories
(see 9 FAM
601.4) must register within 30 days of their 18th birthday. (See 7 FAM 550.)
(See also Jolley v. Immigration and Naturalization Service, 441 F.2d 1245
(1971).)
d. You should inform potential renunciants who are
motivated by the desire to avoid military service that renunciation is not a
shield from prosecution for desertion or failure to register in accordance with
the law.
e. 7 FAM 1245
provides guidance regarding reporting requirements to the U.S. Secret Service
concerning any renunciant or would-be renunciant expressing hostility toward
the United States, its government, or officials and shows indications of mental
or emotional instability.
f. See also 7 FAM 2040,
Deserters, Stragglers and Fugitives from Justice.
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NOTE: The U.S. Supreme Court declared
unconstitutional:
INA 349(a)(10); 8 U.S.C. 1481(a)(10); Section
401(j) Nationality Act of 1940 (NA) - Departing from or remaining outside of
the United States in time of war or period declared by the President to be a
period of national emergency for the purpose of evading or avoiding training
and service in the armed forces of the United States. (Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 92 L. Ed. 644 (1963)); and
INA 349(a)(8); Section 401(g) Nationality Act of
1940 (NA) - Deserting the armed forces of the United States at time of war,
if and when convicted thereof by court martial and dishonorably discharged
(Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958).)
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7 FAM 1296 CULT MEMBERS or members of
american community groups
(CT:CON-449; 03-25-2013)
a. Summary: Cults are groups of individuals bound
together by their devotion to a particular person or idea. Such groups are
often led by either one charismatic individual or a very small cadre of
people. Identification with the cult can affect an individuals decision
making. If a member of a cult seeks to renounce U.S. nationality, you must
explore the issue whether undue influence or duress is involved in the decision
to relinquish U.S. nationality. See 7 FAM 170,
Reporting on American Community Groups Abroad.
b. Host-government inquiries: A host government may
request clarification of U.S. law and policy regarding loss of nationality if a
large group(s) of U.S. citizens or noncitizen nationals attempt to renounce
their U.S. citizenship and naturalize as citizens of the host country. Such
inquiries should be referred to CA/OCS/L (Ask-OCS-L@state.gov).
c. Renunciation and cult members: If you are notified
that a number of cult members wish to relinquish U.S. nationality, you should
interview privately each member who wishes to renounce his or her U.S. nationality. Preferably, the interviews should take place on different days and
without the presence of other cult members in the waiting room or just outside
the post. Interviews should take place in the presence of the consular officer
and a witness, preferably another consular officer, another Foreign Service
officer (nonconsular), or a locally employed staff (LE staff).
d. Voluntariness: Individuals, who commit an act of
expatriation because they fear retaliation by the cult leader or the cult if
they do not, may not be acting voluntarily. On the other hand, an individual
cult member may have independent personal reasons for seeking to renounce. Your
consular officer opinion should discuss in as much detail as possible on the
nature and depth of the influence of the cult leader/cult on the individuals
decision, the consequences the individual fears from the leader or cult if he
or she does not renounce (and what the actual consequences are likely to be),
and whether the individual has any personal reasons for seeking to renounce.
7 FAM 1297 ATTEMPTS TO RENOUNCE OR
RELINQUISH WHILE IN THE UNITED STATES
(CT:CON-407; 06-29-2012)
a. CA frequently receives letters from individuals in
the United States attempting to notify the U.S. Government that they do not
consider themselves subject to the United States or the U.S. State of
residence. We also receive letters from persons serving prison sentences in
the United States who mistakenly believe that if they renounce or otherwise
relinquish U.S. citizenship, they will be released from prison in the United States.
b. CA/OCS/L advises these individuals of the law
regarding renunciations in the United States under 8 U.S.C. 1481(a)(6) (INA
349(a)(6)), which provides:
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8 U.S.C. 1481(a)(6)
A person who is a national of the United States whether
by birth or naturalization, shall lose his nationality by voluntarily
performing any of the following acts with the intention of relinquishing
United States nationality
(6) making in the United States a formal written
renunciation of nationality in such form as may be prescribed by, and before
such officer as may be designated by, the Attorney General, whenever the
United States shall be in a state of war and the Attorney General shall
approve such renunciation as not contrary to the interests of national
defense.
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c. The Departments of Justice and Homeland Security
have not promulgated regulations or procedures regarding renunciation in the
United States under INA 349(a)(6), and there is no officer designated by the
Attorney General or DHS to take renunciations.
7 FAM 1298 and 1299 UNASSIGNED
7 FAM Exhibit 1292
A SAMPLE LETTER TO ACCOMPANY CLN FOR MINOR RENUNCIANTS
(CT:CON-285; 03-06-2009)
Post Letterhead
Date
Dear (NAME):
Every U.S. citizen has the right to renounce voluntarily
and intentionally his or her citizenship, as you have done. Because this is a
very serious decision with consequences that may not have been apparent to you
at the time, the law gives persons like yourself who renounced under the age of
18 an opportunity to reevaluate your decision when you reach the age of 18.
Section 351(b) of the Immigration and Nationality Act (8 U.S.
Code 1483) allows you to reclaim your U.S. citizenship within 6 months after
your 18th birthday. You are advised to make a note of the deadline to reclaim
automatically your U.S. citizenship: the deadline is [insert date six months
from 18th birthday.] You may do so by going to any U.S. embassy or consulate
or passport acceptance facility, execute a passport application and take an
oath of allegiance to the United States. Under this law, if you make such a
claim, you will be considered as never having renounced your U.S. citizenship.
Just like the decision to renounce your citizenship, the decision
to reclaim it is yours alone. No one, including the U.S. Government, any other
government, or even your own family can make the decision for you. Please keep
this in mind as you consider whether you may want to make a claim of
citizenship once you become 18.
The U.S. Government and the Department of State do not
wish to influence your decision. We just want to make sure that you know that
you have the right to reconsider and take back this decision upon reaching
the age of 18. Because this is a very important right that you retain, we ask
that you keep this letter with your Certificate of Loss of Nationality should
you wish to take advantage of this right when you reach the age of 18. The
Department of State will also keep a complete record of your renunciation as
well as this letter. Please remember that the period to automatically reclaim
citizenship expires on [date].
If you have any questions, do not hesitate to contact
(NAME) at (phone number). You may also contact the U.S. Department of State,
Office of American Citizens Services and Crisis Management at any time. That
office can be reached at 202-647-5225.
Sincerely,
SIGNATURE OF CONSULAR OFFICER
TYPED NAME OF CONSULAR OFFICER
TITLE OF CONSULAR OFFICER