Renunciation of US Citizenship by Persons Claiming a Right of Residence in the US 

Section 349(a) of the Immigration and Nationality Act [8 U.S.C. 1481] governs how a U.S. citizen shall lose U.S. nationality. Section 349(a) states:

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:

(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or

(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.

 

In accordance with Section 358 of the Immigration and Nationality Act, while persons seeking to renounce U.S. citizenship submit the necessary documentation to a U.S. consular officer at a U.S. Foreign Service post abroad, the decision whether to approve the renunciation is made by the Department of State in Washington, D.C. Accordingly, unles and until a certificate of loss of nationality is approved by the U.S. Department of State, the oath of renunciation, even though signed by the individual is not/not legally effective in terminating the person's U.S. citizenship.

In order for a renunciation under Section 349(a)(5) to be effective, all of the conditions of the statute must be met. In other words, a person wishing to renounce American citizenship must appear in person and sign an oath of renunciation before a U.S. consular or diplomatic officer abroad, generally at an American Embassy or Consulate. Moreover, Section 349(b) of the Act provides that:

Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this of any other Act shall be presumed to have done so voluntrily, 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.

 

The U.S. Department of State has concluded that the intention to relinquish U.S. nationality required for purposes of finding loss of nationality for the purposes of Section 349(a) of the INA does not exist where a renunciant plans or claims a right to continue to reside in the United States, unless the renunciant demonstrates that residence will be as an alien documented properly under U.S. law.

Renunciations which are not in the form prescribed by the Secretary of State have no legal effect. Because of the way in which Section 349(a)(5) is written and interpreted, Americans cannot effectively renounce their citizenship by mail, through an agent, or while in the United States. Section 349(a)(6) provides for renunciation of United States citizenship under certain circumstances in the United States when the United States is in a state of war. Such a state does not currently exist. Questions concerning renunciation of American citizenship under Section 349(a)(6) should be addressed to the Attorney General.

Persons who contemplate renunciation of U.S. nationality should be aware that, unless they already possess a foreign nationality or are assured of acquiring another nationality shortly after completing their renunciation, severe hardship to them could result. In the absence of a second nationality, those individuals would become stateless. As stateless persons, they would not be entitled to the protection of any government. They might also find it difficult or impossible to travel as they would probably not be entitled to a passport from any country. Further, a person who has renounced U.S. nationality will be required to apply for a visa to travel to the United States, just as other aliens do. If found ineligible for a visa, a renunciant could be permanently barred from the United States. Renunciation of American citizenship does not necessarily prevent a former citizen's deportation from a foreign country to the United States.

Persons considering renunciation should also be aware that the fact that they have renounced U.S. nationality may have no effect whatsoever on their U.S. tax or military service obligations. Nor will it allow them to escape possible prosecution for crimes which they may have committed in the United States, or repayment of financial obligations previously incurred in the United States. Questions about these matters should be directed to the government agency concerned.

Those persons who, after careful consideration of the contents of this letter and its enclosures, desire to renounce U.S. citizenship may contact the U.S. embassy to make an appointment, bearing in mind that they will be asked to demonstrate poof of foreign residence, or failing that, evidence that they intend to enter the United States as an alien with documentation t that effect. Moreover, a person in possession of a U.S. passport will be asked to submit that passport to the U.S. consular officer for cancellation. If the certificate of loss of nationality is approved by the U.S. Department of State, the individual's name will be entered in the Department's name check system and they will be ineligible for U.S. passports in the future.

As previously stated, persons contemplating renunciation of U.S. citizenship are reminded that renunciation is irrevocable, except as provided in Section 351 of the Immigration and Nationality Act, and cannot be cancelled or set aside absent successful administrative or judicial appeal.

If you have any questions, contact a U.S. consular officer at the U.S. embassy or the Department of State (CA/OCS/PRI) at 202-647-3666.

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