8 FAM 307.2
Defenses of Unawareness, Impossibility of Performance,
Constructive Compliance, and Official Misinformation
(CT:CITZ-7; 08-14-2018)
(Office of Origin: CA/PPT/S/A)
8 FAM 307.2-1 introduction
(CT:CITZ-7; 08-14-2018)
a. Acquisition of U.S. citizenship by birth abroad
under U.S. nationality laws, as explained in 8 FAM 301,
can depend on whether certain actions have been taken on the part of both the
U.S. citizen (parent(s)) with the original claim to citizenship, and the
applicant to acquire and retain citizenship. This subchapter discusses some
historical defenses pertaining to the retention provisions of former INA
301(b). 8
FAM 307.1 explains how you administer cases that were subject to the former
retention provisions today. The purpose of 8 FAM 307.2
is to provide historical context for these issues. These defenses are rarely
employed today and any questions about this subject should be directed to
Passport Services' Office of Adjudication at AskPPTAdjudication@state.gov.
b. While U.S. nationality laws have evolved in the past
100 years, U.S. courts have continued to conclude that the Congress has the
right to impose conditions under which a U.S. citizen born outside of the
United States and its outlying possessions, may acquire, and retain,
citizenship (see 8 FAM 102.3-3
and 8 FAM
102.3-6).
c. The Immigration and Nationality Act (INA) itself
provides no "exemption"; i.e., no authority to waive or modify its
requirements.
d. With respect to the retention requirements of former
section 301(b) INA, however, the Bureau of Consular Affairs (CA) does accept
several affirmative defenses which render those requirements inapplicable and
which individuals may assert to excuse their non-compliance. Those defenses
involve unawareness of a claim to citizenship, impossibility of complying with
the retention requirements, and official misinformation. Prior to 1995, these
defenses were the only available means, other than naturalization, by which
persons whose citizenship ceased under the former section 301(b) INA could have
their citizenship restored. After 1995, the procedures explained in 8 FAM 307.1
apply.
e. The above defenses, however, must be distinguished
from a claim that the individual was not aware of specific retention
requirements (see 8 FAM
102.3-8(B)).
f. The defenses do not apply to physical presence or
residence requirements for transmittal of U.S. citizenship (see 8 FAM 102.5).
8 FAM 307.2-2 Defense of
Unawareness of U.S. Citizenship
(CT:CITZ-7; 08-14-2018)
a. Potentially expatriating acts performed while a
person was unaware of a possible claim to U.S. citizenship do not cause loss of
nationality, has also been applied to cases involving former section 301(b) INA
(see 8 FAM
102.4 and 8
FAM 102.5). Under that doctrine, any person wholly unaware of a possible
claim to U.S. citizenship should not be held to have ceased to be a citizen by
failure to meet the retention requirements.
b. Unless there was direct evidence of an applicant's
awareness of his claim to U.S. citizenship, the Department accepted the
applicant's credible and convincing statements of unawareness. Persons who
learned of their possession of U.S. citizenship after reaching age 26 were held
not to have forfeited their U.S. citizenship by failing to enter the United
States before their 26th birthday to begin compliance with the retention
requirements of former section 301(b) INA. There was no requirement that such
persons later enter the United States in order to keep their citizenship. An
individual who was aware before age 26 that he or she was a U.S. citizen but
assumed that such citizenship had been lost could claim unawareness as a
defense against the operation of former section 301(b) INA.
c. Ignorance of the retention requirements does not
excuse an individual's failure to comply with them if that person was aware of
a claim to U.S. citizenship before the date on which that person would have
been required to begin compliance with the retention provisions (see 8 FAM 102.5-2).
For instance:
d. The following explanation of the pre-1995 Department
adjudication process is provided for historical reference:
(1) Prior to 1995, the consular officer conducted an
interview with the applicant about claims to unawareness, but it was not
necessary to conduct an in-depth investigation into the applicant's background
in order to determine if she/he had a valid unawareness claim. There was no
requirement, for example, for family members to be interviewed. The
applicant's statement under oath was accepted absent direct evidence
contradicting it. Examples of direct evidence could include, but are not
limited to:
(a) The applicant was previously documented as a U.S. citizen;
(b) The applicant previously applied for documentation,
and the application was disapproved; and
(c) The applicant previously inquired regarding
acquisition of U.S. citizenship.
(2) In some cases, knowledge of a claim could be
imputed to the applicant if an applicant's sibling previously inquired or
applied for documentation as a U.S. citizen. The use of such evidence to
counter a claim to unawareness required not only a statement from the sibling,
but a thorough development of the sibling's awareness case as well. There is
no requirement to query each sibling and parent of the applicant. Posts
attempted to develop only that evidence which appeared to refute the
applicant's statements. In most cases, this did not require a personal
appearance by any sibling, but the post inquired whether any siblings were
documented as U.S. citizens; and
(3) Posts may consider evidence which is
circumstantial but nevertheless probative in assessing a claim of unawareness.
For example, there has been a substantial American presence in the Philippines
since late in the 19th century. An unawareness claim from an applicant from
the Philippines with an English surname might raise questions that a similar
claim in the United Kingdom would not raise. Thus, there may be historical or
cultural factors which would be taken into consideration.
e. Developing an unawareness case:
(1) Applicants completed a passport application and
citizenship questionnaire, and documented in further detail as necessary when
and under what circumstances they learned of their claim to U.S. citizenship.
The application was supported by the required evidence of the acquisition of
U.S. citizenship;
(2) Once acquisition of U.S. citizenship was
established, the consular officer would determine whether the applicant was
subject to but failed to comply with applicable retention provisions. If
retention requirements were not applicable or were complied with, then the
issue of unawareness was not relevant and would be disregarded. After 1995, if
applicable retention requirements were not complied with, the consular officer
would confirm that the applicant wishes to develop an unawareness defense
rather than seek citizenship restoration under INA 324(d) (see 8 FAM 307.1);
(3) The consular officer (or passport specialist)
would interview the applicant and conduct any checks deemed necessary, such as
lookout, post and/or Department records which may assist in determining the
validity of the unawareness claim;
(4) The consular officer would resolve any loss of
nationality issue, per 7 FAM 1200;
(5) If the consular officer found unawareness
credible, and all acquisition and loss of nationality issues were
satisfactorily resolved, citizenship could be documented based on the
unawareness doctrine with prior CA/PPT/S/L (AskPPTLegal@state.gov) approval.
Upon determining that the evidence is sufficient to support the holding that
the applicant was unaware of a claim to U.S. citizenship until after the date
on which citizenship would have ceased for failure to meet the retention
requirements, when authorized by CA/PPT/S/L, the consular officer would execute
a certification along the following lines: I have reviewed the case of (name
of applicant) and determined that (he/she) was unaware of (his/her) claim to
U.S. citizenship before (date). I have therefore determined that (he/she)
should be regarded as having constructively complied with the retention
requirements of (applicable section of law) and may be documented as a U.S.
citizen.
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Date of Certification
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Consular Officer's Signature,
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Officer's Typed Name,
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Officer's Title, Name of Post
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(6) The consular officer would attach this
certification to the passport application.
8 FAM 307.2-3 Defense of
Impossibility of Performance
(CT:CITZ-7; 08-14-2018)
a. A second defense to failure to fulfill retention
requirements was impossibility of performance. "Impossibility of
performance" means that a U.S. citizen subject to the retention provisions
was prevented from complying with those provisions by forces over which she/he
had no control. This excuse is most likely to be substantiated in totalitarian
states where government permission was required to depart the country. (This
is not to be confused with an instance in which a person considered the
possibility of her/his relocation to the United States to be merely difficult,
inconvenient, or financially disadvantageous.)
b. In general terms, claims of impossibility of
compliance with retention requirements are supported by evidence that
compliance was attempted prior to the claimant's 26th birthday. Since claims
of inability often require evidence of positive action on the part of the
applicant, they have generally been easier to prove than unawareness claims
(which require proving a negative). However, it is not sufficient to merely
assert that compliance was attempted. While cases may not be adjudicated
solely under a blanket acceptance of inability for periods during which
compliance is known to have been impossible, posts may have knowledge that,
during certain periods, persons were not permitted to leave a country, and that
it was common knowledge during those periods that efforts to leave the country
would entail substantial risk. For example, we know that emigration from most
Eastern European countries was extremely difficult after the Second World War.
Thus, should a former U.S. citizen present an application based on a credible
claim that she/he would have traveled to the United States to comply with
retention requirements but found such travel forbidden, directly or indirectly,
the consular officer would accept that claim as an effective defense to the
retention requirements. Financial impossibility of performance was not an
accepted defense.
c. Cases involving impossibility of performance would
be handled in the same general manner as unawareness cases. Evidence of the
inability to comply with the retention requirements would be attached to the
application submitted to the Department. Such evidence would include a
statement describing the applicant's claims, the post's knowledge of objective
conditions in the applicant's area of residence during the period of time in
question or evidence supporting the applicant's assertions, and the officer's
evaluation of the case. If the claim is accepted by the post, a consular
officer's certification similar to the one shown in 8 FAM 307.2-2
would be made a part of the file. If the claim is found not credible, the
consular officer may proceed with administration of the 324(d) oath.
8 FAM 307.2-4 Defense of Official
Misinformation
(CT:CITZ-7; 08-14-2018)
a. Noncompliance with the retention requirements may
also be excused in cases in which the applicant can affirmatively demonstrate
that she/he was misinformed by an agent of the Federal Government regarding the
retention requirements or, in rare cases, the underlying claim to citizenship.
(In this context, an agent is an employee of the Federal Government who might
reasonably be expected to have knowledge of citizenship matters.) Such cases
arise very infrequently. It is incumbent upon the applicant to provide
convincing evidence of misinformation beyond a simple self-serving statement.
b. Examples of official misinformation:
(1) One example of a possible misinformation defense
is a case where the applicant was issued a full-validity passport when, in
fact, the passport should have been limited to the last day on which the person
could have complied with the retention of citizenship provisions;
(2) Conversely, an incorrect denial of a legitimate
claim to citizenship could lead to a failure to comply with retention
requirements. The denial of passport services, for example, could result in a
citizen's inability to meet retention requirements. That denial would anchor a
strong affirmative defense on retention in the event of a correct adjudication
of the underlying claim at some later date; and
(3) On occasion, applicants may present official
correspondence which appears to have inadvertently misrepresented retention
requirements or other laws, policies, or procedures, resulting in a failure to
comply.
c. Posts do not have to submit to the Department for
advisory opinion cases in which an applicant subject to the retention
provisions of former section 301(b) INA claims that non-compliance was a direct
result of misinformation by an employee of the Federal Government. However, an
applicant claiming official misinformation must provide convincing evidence of
the misinformation, such as official correspondence, previously issued
documentation of U.S. citizenship, and the like. Post may wish to check
Department citizenship files for evidence supporting or disproving the
applicant's claims. Cases involving official misinformation would be handled
in the same manner as unawareness and impossibility of performance cases.