By Guillermo “Gary” Wiener and John Meyer, Texas Lawyer
As immigration attorneys, most of our clients spend years, thousands of dollars and heartache to become citizens of the United States. Sometimes, though, individuals who are already U.S. citizens affirmatively relinquish their U.S. citizenship; however, there are circumstances in which a U.S. citizen may have done so involuntarily. This article explores the process by which a former U.S. citizen who did not intend to relinquish can request to restore his or her U.S. citizenship.
What is a request for an administrative review of loss of nationality?
Even if a U.S. citizen has received a Certificate of Loss of Nationality (CLN), the U.S. Department of State nevertheless has the power to administratively reverse the finding of loss of nationality. Former U.S. citizens have the right to request an administrative review of their loss of nationality as part of the due process of law guaranteed by the Fourteenth Amendment of the U.S. Constitution. While the former U.S. citizen may also appeal the loss of nationality in a court of law, requesting an administrative review is generally a faster, cheaper and more convenient option.
The process by which a former U.S. citizen can request an administrative review of loss of nationality is outlined in Volume 7, Section 1230 of the Department of State’s Foreign Affairs Manual. In submitting a request for administrative review, the former U.S. citizen needs to present new evidence relating to the involuntariness or intent of the relinquishment. Under the preponderance of the evidence standard, the State Department will consider whether the former U.S. citizen expatriated voluntarily with the intention of relinquishing U.S. citizenship and whether the appropriate procedures were followed by the consular officer in the particular case.
The new evidence that can be presented can include, for example, parental coercion, even in situations where the renunciation occurred after the individual was over the age of 18. The State Department acknowledges that, in many cultures, it is not unusual for young adults to be especially vulnerable to parental pressure even though they are legally emancipated.
Parental coercion may arise when an individual is pressured to give up his or her U.S. citizenship upon turning 18 years old, an age at which dual citizenship may not be allowed in some countries or when other legal consequences may accrue. For example, until the late 1990s, Mexico did not allow its adult citizens to hold dual citizenship, and it was not uncommon for parents to pressure their children to relinquish their U.S. citizenship upon turning 18 years of age in order to retain their Mexican citizenship.
There is no time limitation for requesting an administrative review. In fact, the State Department acknowledges that older cases—particularly those decided before 1990—are sometimes the most deserving of review, since loss of U.S. nationality is an area of the law that has undergone substantial changes over time.
Before filing a request for administrative review, it is important to carefully review all documents relating to the loss of nationality, including the CLN. If the individual does not already have these documents in his or her possession, it would be prudent to try to obtain them prior to filing the request for administrative review by filing a Freedom of Information Act request with the State Department.
The department instructs consular officers to keep “meticulous records” in loss of nationality cases. For this reason, it is important to review the documents relating to the loss of nationality to see if there are any mistakes, typos or inconsistencies. If there are any errors, then the accuracy of the remaining content of the affidavit should also be called into question. In addition, any mistake on the CLN would corroborate the lack of integrity in determining whether the individual’s relinquishment of U.S. citizenship was done voluntarily and with intent.
After citizenship has been restored
If the case is approved, the State Department will send a letter confirming that the CLN has been vacated and that the individual’s U.S. citizenship has been restored. The restoration of citizenship will be retroactive to the time of the expatriating act, and the individual will immediately be able to apply for a U.S. passport.
The department will inform other federal agencies that the finding of loss of nationality has been overturned. Given that the restoration of citizenship will be retroactive to the time of the relinquishment, the U.S. citizen should be advised to talk to a qualified tax professional, because the restoration of citizenship could have serious tax implications.
There may be hope for individuals who have haphazardly relinquished their U.S. citizenship after following the misguided advice of their parents or a consular officer. Requesting an administrative review of loss of nationality may be a viable option for some former U.S. citizens who never intended to lose their citizenship in the first place.
Guillermo “Gary” Wiener is an associate attorney at Foster in Houston. He devotes his practice to a range of U.S. immigration and nationality matters, specializing in temporary work visas and employment-based immigration. John Meyer, a partner at Foster, and Benjamin Schatz, a senior attorney at Foster, provided assistance with this article.