Givin’ it Up: Loss of United States Citizenship

by Matthew Bray


As an immigration lawyer, I am very fortunate to work every day with people from all over the world and from vastly different backgrounds. I do this while representing people in removal proceedings, in deferred action applications, and all manner of work visa petitions. For a clear majority of these people, there is one ultimate goal: US citizenship. For many, acquiring US citizenship is a lifelong and closely-held ambition, emotionally bound up with the process of leaving their home country and establishing a life here in the US. For others, it is a matter of convenience—allowing them the freedom to remain outside the US for extended periods of time without worrying about being found to abandon their permanent resident (Green Card) status, or to petition for family members from abroad to immigrate to the United States.

Denaturalization

A lesser-known aspect of the immigration and nationality laws is the loss of US citizenship. There are two main ways that someone can lose their US citizenship: one is through denaturalization. This procedure is largely reserved for those individuals who have gone through a naturalization (citizenship) process and been accorded citizen status, but from whom the US government wishes to take that status away. This is usually based on a fraud in the underlying naturalization process. A somewhat recent example of this in the news was the case of John Demjanjuk, a former alleged Nazi death camp guard who was deported to Germany following his denaturalization and died in prison there awaiting trial on war crimes charges.

Relinquishment/Renunciation

The other less common way of losing US citizenship is through relinquishment/renunciation. While still a rare occurrence, news sources report and the Federal Register’s quarterly list of expatriated US citizens confirms that the number of Americans relinquishing/renouncing their US citizenship is increasing every year. Under section 349(a) of the Immigration and Nationality Act (INA), a US citizen loses their nationality by “voluntarily performing” specific enumerated acts “with the intention of relinquishing” US nationality.

These acts include: 1) obtaining naturalization in a foreign country upon filing an application, when over eighteen years old; 2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state, when over eighteen years old; 3) entering or serving in the armed forces of a foreign state if the armed forces are engaged in hostilities against the US, or if serving as a commissioned or non-commissioned officer; 4) when over eighteen years old, accepting, serving in, and performing the duties of an office, post, or employment under the government of a foreign state, if having or acquiring the foreign state’s nationality, or accepting, serving in, or performing the duties of an office, post, or employment under the government of a foreign state, if an oath, affirmation, or declaration of allegiance is required; 5) making a formal renunciation of nationality before a diplomatic or consular officer abroad; 6) making written renunciation of nationality during wartime, with the US Attorney General’s approval; and 7) committing any act of treason against the United States or attempting to overthrow the US government, if convicted by a court martial or civil court.

Formal Renunciation

Among these enumerated acts, the formal “renunciation” before a diplomatic or consular officer abroad results in a Certificate of Loss of Nationality (Form DS-4083) issued by the Department of State. In order to obtain the Certificate, a US citizen must submit a Form DS-4080, Oath/Affirmation of Renunciation of US Nationality, and appear before a diplomatic or consular officer so that the officer can determine that the renunciation of nationality is voluntary. For other acts that constitute relinquishment, a US citizen can submit a Form DS-4079, “Questionnaire Information for Determining Possible Loss of US Citizenship.” This was likely how world-famous American entertainer Tina Turner confirmed to the US Embassy in Bern, Switzerland that she had become a naturalized Swiss citizen with the intention to relinquish her US citizenship. 

Why One Might Choose to Relinquish/Renounce US Citizenship

The reasons that US citizens choose to relinquish or renounce their US nationality are as varied as the individuals themselves–Wikipedia has a fun list of several hundred historical and contemporary examples. Many have taken up positions with foreign governments that require an oath of allegiance; others have done so to protest US foreign policy or politics. What appears, however, to be behind the greatest spike in renunciations is the desire to avoid often onerous worldwide federal tax obligations.

Tax Obligations

For individuals looking to avoid US tax obligations, shedding their US nationality may be an absolute imperative; however, these individuals should be warned that relief from US tax obligations under the Internal Revenue Code (IRC) does not cleanly follow from a relinquishing act or formal renunciation. 26 USC § 877A(g)—a consolidation and codification of the general and permanent laws of the United States—provides that additional paperwork must be filed with the State Department, and that the operative date for determining tax obligations is not the date of the act, but the date that such paperwork is filed with the State Department.

Furthermore, any tax obligations owed while still a US citizen (even if working and living abroad) would still be owed, and freedom from US taxes on earnings and assets abroad would only be prospective from the date that the person is no longer a US citizen. In addition to paperwork, there is a fee—last year the State Department dramatically increased its fees from $450 to $2,350 for the processing of the renunciation/relinquishment paperwork.

A few other considerations for individuals contemplating undertaking a renunciation/relinquishment process:

  • Loss of US nationality does not alter tax and military obligations, nor does it make one immune from prosecution committed in the United States;
  • A US citizen who renounces citizenship without having another nationality may find themselves stateless, severely impacting their ability to travel or live in another country absent special permission from the host country;
  • Renunciation is irrevocable, absent a successful appeal where the burden is on the party claiming loss of citizenship to show that the renunciation/relinquishment occurred “by a preponderance of the evidence.” Where minors lost their citizenship with their parents, they may–within six months after their eighteenth birthday–assert a claim to US citizenship;
  • Since most acts under INA § 349(a) must take place outside the United States, the question remains how the former US national may now return to the US, even for a visit. While there have been some examples of former citizens regaining their citizenship and returning to the US, with the recent spike in possibly tax-motivated renunciations, one provision of law added to the INA by the Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRIRA) is INA § 212(a)(10(E). This provision makes permanently inadmissible to the US any foreign national who is a former US citizen “who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States.”

While it is not clear whether and to what extent this inadmissibility provision has been used to bar former citizens from entering the US, or whether and how the purpose of a former citizen’s renunciation would be determined by the Attorney General, it is a clear indicator of what the federal government feels about individuals who renounce to avoid taxation. For anyone considering renouncing citizenship, it is of course very advisable to consult a US tax attorney as well as an immigration attorney.

Although given my position as an attorney who tries to bring and keep people in the United States and (usually) encourages US permanent residents to become citizens, it can be baffling to me why someone would want to give that up, it is clear that there are many circumstances in which and reasons why people choose this route. While this post only touches on the topic, it shows that before making such a monumental decision, any US citizen must carefully consider what exactly needs to be done in order to accomplish the loss of nationality, as well as the lifelong ramifications that such a loss would entail.