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Monday, March 19, 2012

U.S. Citizenship: Discrimination and Accidental Americans

I received a lot of email and comments about last week's post, Citizenship 101 for Americans. I want to thank everyone for reading and taking the time to write.  Based on what I received, I thought I would post a follow-up here concerning two subjects that generated the most mail:  Discrimination in the transmission of U.S. citizenship to children of U.S. citizens abroad and "Accidental Americans."

Let's tackle the discrimination issue first.   In my previous post I wrote:

A child born in China of an American mother who lived in the U.S. at some point prior to the birth and a Chinese father is an American citizen by blood even if that child never sets foot on U.S. soil.

This is true but it's not the whole story. As one commenter and several emails pointed out, there are U.S. residency requirements for that American woman that must be fulfilled if she is to transmit her American citizenship to her child born in China. Oddly enough, these residency requirements are different depending on if she is married or not.

Married: If she is married to her Chinese man and her child is born after November 14, 1986 then to pass U.S. citizenship to her child "she must have been physically present in the United States for a period (or periods totaling) five years prior to the birth of the child, at least two years of which were after the U.S. citizen parent reached the age of fourteen years."

Unmarried:  However if she is not married to him and the child is born out of wedlock then "the U.S. citizen mother must have been physically present in the United States for a continuous period of at least one year before the child's birth. This period of presence may have been at any time before this child's birth."

Yes, you read that correctly. A child born in wedlock to a married couple where one is an American citizen and the other spouse is a foreign national is an American citizen if the U.S. citizen lived in the U.S. for at least five years (two after the age of 14).  However, if the child is born out of wedlock to an American mother abroad the residency requirement is a measly 1 year on U.S. soil.

If discrimination against the married were not enough, I invite you to read the requirements for Americans fathers who have children out of wedlock overseas here (see the section, "Children Born out of Wedlock - Born to a U.S. citizen father and an alien mother")  It seems downright insane but, as one commenter pointed out, these rules were recently upheld by the U.S. Supreme Court in this ruling, Flores-Villar.

So, let me get this straight (and correct me if I'm wrong):  The U.S. seems to favor transmission of U.S. citizenship to children of unmarried American women abroad who have the most tenuous connection possible (1 year residency) to the home country.  I would really appreciate someone explaining the logic behind all this because I, quite frankly, don't get it.

The second issue was that of "Accidental Americans" - those children inadvertently born on U.S. soil who acquire U.S. citizenship via jus soli and keep it (often unknowingly) all their lives unless they renounce.  Some of the people I talked to about this were not at all amused.  The most common reaction I've heard was "They can't do that.  I'm French (or another nationality) and to hell with the U.S. government.  I am not a U.S. citizen and I refuse to be considered one.  They can't enforce this."

I understand their anger completely. This is ridiculous and a democratic nation-state should not be in the business of forcing people to be citizens.  My take on it is that, whatever the circumstances around the acquisition of citizenship, an individual should be able to renounce or relinquish any time he or she wishes.  The U.S. does not make it easy or cheap to opt out and I think that is shameful. Is the U.S. really so desperate for citizens that it would hold people captive?  This makes no sense whatsoever  and is potentially going to cause major diplomatic incidents with other countries because, yes, it appears that the U.S. is trying to impose citizenship on these people.

How?  Well, the most obvious method to catch those "Accidentals" is attempted entry into the U.S. on a foreign passport that lists a U.S. place of birth.   The Isaac Brock Society is reporting that Canadians trying to enter the U.S. on Canadian passports with a U.S. birthplace are being hassled at the border and told to get U.S. passports or produce a certificate of loss of U.S. nationality (CLN). Phil Hodgen's blog is reporting that the Premier of New Brunswick, David Alward (Canadian citizen born in Massachusetts) is now having to comply with U.S. tax laws.  On the Europe side, the Lord Mayor of London, Boris Johnson, was caught in this trap and rather indignantly renounced his U.S. citizenship in 2006.  In France there is Anne Sinclair (DSK's wife) who appears to also be a U.S. citizen and who I assume has or will be required to file 1040's and FBAR's.  Finally, the brother of a personal friend of mine had a ghastly experience trying to go home to Seattle to see his mother.  He was traveling on a German passport (he had renounced U.S. citizenship years before) and was interrogated for over an hour at Sea-Tac before he was allowed entry into the U.S.   So they are paying attention at the U.S. border and anyone with a U.S. place of birth on their passport is likely to be questioned closely.

That was the simplest and most obvious method of flushing out those "Accidental Americans."  In the past, as long as they didn't travel to the U.S. they could live out their lives in blissful ignorance of their citizenship status and the U.S. had no way to detect them.  Enter FATCA.  Since these "Accidentals" have a U.S. place of birth, their local bank in Germany, France, the UK and other countries will know immediately that they are dealing with a potential "U.S. person" and will have to ask for further information to confirm that status.  If that "Accidental" cannot prove that he or she isn't an American citizen then the bank will be required to treat him/her as one and do the necessary reporting to the U.S. government.  I predict that once FATCA comes on-line and European banks start informing their clients of their status as U.S. citizens that there will be a mighty roar of anger directed at the United States.  A roar that may just be too little, too late.

So, my friends, I hate to break this to you but, yes, the U.S. government can indeed claim you as a citizen against your will and now has two methods to enforce it.  As for you Europeans accidentally born in the U.S. who are hoping that your countries will save you, it appears that at least five of them (UK, France, Germany...) seem to be delighted to cooperate with the U.S. government on this matter.  We'll see what happens at the EU level.


Raul said...

I wish to present another way of looking at these issues, one that is perhaps less sinister. The way I see it, the problem is not the ease with which certain circumstances could lead one to acquire US citizenship. Indeed, I'm happy that the barriers to citizenship are not stronger. I believe that people ought to be able to live and work where-ever they please across the world, and making it more difficult to acquire or confer citizenship would be a barrier to that ideal.

The problem lies entirely with the issue of worldwide taxation and FATCA. Therefore, our ire should lie with those policies, rather than the citizenship aspect. It seems logical that the border control issues would disappear were it not for the tax policies. There would no longer be an incentive to "catch" unknowing citizens.

Ovid said...

Here's one way of NOT getting US citizenship: have your children via in vitro fertilization. After all, you can't prove that the sperm or egg came from Americans!

Mind you, it doesn't matter if the sperm or egg came from Americans if you adopt, but bearing that child yourself is a no-no!

Victoria FERAUGE said...

Hi Raul, Good points though I'm not sure I would equate ease of acquiring citizenship with mobility and the right to work and live in other countries. The latter is entirely possible with legal residency. As Peter Spiro points out there is very little difference between a legal resident and a citizen in most democratic nation-states.

The more I think about, in fact, the more I think that the entire citizenship model (jus soli or jus sanguinis) is fatally flawed in this modern era. It's just not compatible with a world where large numbers of people move around. But what other model could we aspire to? Some books I've read recently propose a model based purely on residency and I find their arguments to be very compelling. That would also solve the problem of worldwide taxation - it simply would be moot in a world where you are a citizen of the state in which you live. Period. Check out Kostakopoulou's The Future Governance of Citizenship for a discussion of this model.

Curtis - Thanks for the link. Yes, another fabulous example of how citizenship laws are really outdated in a modern world.