Loss of nationality, also known as expatriation, means the loss of citizenship status properly acquired, whether by birth in the United States, through birth abroad to U.S. citizen parents, or by naturalization. The current Immigration and Nationality Act (“INA”) provides that U.S. nationality is lost only when the U.S. citizen does one of the specified acts described, voluntarily and with the intent to give up that nationality. If any one of these requirements is lacking, nationality is not lost.
Acts not specified in INA §349 do not result in expatriation. However, two expatriating acts contained in INA §349 are relevant to the issue of dual nationality. They are:
- obtaining naturalization in a foreign state upon the citizen’s own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; and
- taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof after having attained the age of eighteen years.
Where such expatriating acts are performed, it is important to consider the issues of voluntariness and intention to relinquish U.S. citizenship.
Closely related to need for voluntary action is the requirement that expatriation cannot be accomplished by a citizen who has not attained a specified age of maturity. This conforms with the common law maxim that an infant lacks legal capacity to undertake contractual obligations.
These special provisions do not apply to acts of expatriation not specifically mentioned, and the age of maturity in relation to such other acts of expatriation generally continues to be the common-law standard of 21 years.
According to INA §349(b), whenever the loss of U.S. nationality is put in issue, the burden falls upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation is presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
Since foreign naturalization, particularly when coupled with an oath renouncing former allegiance, may be in derogation of undivided allegiance to the United States it may in some situations generate an inference of intention. However, the Board of Immigration Appeals has ruled that naturalization in a foreign state, coupled with an oath of allegiance to that state, gives rise only to a highly persuasive inference that U.S. citizenship was abandoned, which may be rebutted with proof that the person did not intend thereby to relinquish citizenship.
In September, 1990, the Department of State (“DOS”) issued a policy statement which dealt with loss of nationality. The policy statement indicated that DOS would presume a person intended to retain U.S. citizenship where:
- the person was naturalized in a foreign country
- took a routine oath of allegiance, or
- accepted non-policy level employment with a foreign government.
Such a person need not submit prior to the commission of a potentially expatriating act a statement or evidence of his or her intent to retain U.S. citizenship since such an intent will be presumed. It is important to note that the two expatriating acts which arise in the context dual nationality are given the benefit of this presumption.
According to the policy statement, the presumption that a person intends to retain U.S. citizenship is not applicable when the individual:
- formally renounces U.S. citizenship before a consular officer;
- takes a policy level position in a foreign state;
- is convicted of treason; or
- performs an act made potentially expatriating by statute accompanied by conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that the individual intended to relinquish U.S. citizenship.
In order to ensure retention of U.S. citizenship, U.S. citizens may wish to assert their citizenship status by actions confirming a continuing intent to retain U.S. citizenship. These could involve a written statement confirming the citizen’s desire to retain U.S. citizenship, submitted to a U.S. consulate or the DOS. The U.S. citizen should also continue paying U.S. income taxes, obtaining U.S. passports, and maintaining retaining property and other ties to the United States after the expatriating act takes place to evidence an intention not to relinquish citizenship. However, as stated in the DOS policy statement, such action is not necessary where the presumption applies.