DUAL CITIZENSHIP by Cliff Rosenthal

Transcription

1 Copyright 2014, American Immigration Lawyers Association. Reprinted, with permission, from AILA s Guide to Citizenship & Naturalization Law (2014 Edition), AILA Publications, agora.aila.org. DUAL CITIZENSHIP by Cliff Rosenthal Dual citizenship is the status of legally holding more than one citizenship from different countries concurrently. 1 Questions regarding dual citizenship arise because there is no international uniformity or consensus regulating the acquisition and loss of citizenship. 2 Dual citizenship scenarios in the United States generally arise from the following situations: 1. Birth in the United States to a parent who is a national of a foreign country that bases its citizenship on descent; 3 2. Birth in a foreign country, which bases it citizenship on place of birth, to a parent who is a U.S. citizen; 4 3. Naturalization of a U.S. citizen in a foreign country; 5 1 Although literally the term dual citizenship refers to holding citizenships from two different countries simultaneously, the established definition of the term includes holding citizenships from multiple countries, since the principles that govern maintaining two citizenships apply equally to multiple citizenships. There is also a difference between the terms citizenship and nationality. Nationality typically refers to the rights and duties that flow between the individual and the state based on membership of the state based on various common factors. This includes regulating the relationship between the individual and the state in relation to other states, including its protection over the individual. See A. M. Boll, Multiple Nationality and International Law (Koninklijke Brill 2007), at 13 n.27; A. Gouws (ed.), (Un)Thinking Citizenship (UCT Press 2005), at 127; E. Isin & B. Turner (eds.), Handbook of Citizenship Studies (Sage 2002), at 278; C. Joppke, Citizenship and Immigration (Wiley Publishers 2010), at 28; A. Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (Oxford University Press 2012), at 40; T. Kostakopoulo, The Future Governance of Citizenship (University of Cambridge Press 2008), at 128; B. Manby, Citizenship in Africa (Open Society Foundations 2010), at 18; and O. Vonk, Dual Nationality in the European Union: A Study on Changing Norms in Public and Private International Law and in the Municipal Laws of Four EU Member States (Koninklijke Brill 2012), at 30. Citizenship has the additional component of regulating the individual s participation in the state s political process, namely the individual s right to vote. See A. Gouws (ed.), (Un)Thinking Citizenship (UCT Press 2005), at 127; E. Isin & B. Turner (eds.), Handbook of Citizenship Studies (Sage 2002), at 278; B. Manby, Citizenship in Africa (Open Society Foundations 2010), at 18; C. Joppke, Citizenship and Immigration (Wiley Publishers 2010), at 1 50; A. Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (Oxford University Press 2012), at 40; T. Kostakopoulo, The Future Governance of Citizenship (University of Cambridge Press 2008), at 14 16; and D. Levy, U.S. Citizenship and Naturalization Handbook (West Group 1999 Ed.), at 3. While all citizens are usually considered nationals of a country, not all nationals are considered citizens. See INA 308. While in many instances, the literature refers to dual nationality, the principles are equally applicable to dual citizenship (unless referring to the right to vote). Most often, these terms are used interchangeably. 2 Most countries base their citizenship laws on one of two models, namely jus soli (citizenship based on place of birth) and jus sanguinis (citizenship based on descent). It is the interplay between countries that share or have opposing models that creates dual citizenship situations. The United States has elements of both systems. 3 M. I. Hirsch, Citizenship in America: The Rights, Privileges, and Responsibilities, 23 Immigration Law Today 24 (Nov./Dec. 2004). See also U.S. Citizenship and Immigration Services (USCIS), Citizenship in the United States, U.S. Immigration Report Series, vol. 1 (May 2004), at Id. 283

2 284 AILA S GUIDE TO CITIZENSHIP & NATURALIZATION LAW 4. Naturalization of a foreign citizen in the United States; 6 or 5. Marriage to a foreign citizen, which, in some countries, automatically grants citizenship to the U.S citizen spouse. 7 The pros and cons of recognizing dual citizenship have been hotly debated for most of the past century. Traditionally, this debate has focused on the effect dual citizenship has on a country s institution of citizenship; i.e., does it strengthen it or dilute it? By not enforcing the abandonment of prior citizenships, those in favor have stressed that dual citizenship promotes increased naturalization rates, inclusiveness, integration of foreigners, as well as continued connection and loyalties to both countries. 8 The detractors, however, argue that dual citizenship represents the quintessential conflict of interest. These include competing loyalties between countries, an exit option in cases of hostilities (fostering less civic responsibility), potential instructed voting based on a foreign citizenship, unwanted changes in the country s traditions and culture, complications in diplomatic protection abroad, complications relating to military service (especially in a time of war between the two countries), and conflict of laws, involving tax, civil status, and inheritance. 9 By the 1930s, the initial success of the detractors position was manifest in that very few countries recognized dual citizenship, except in extremely limited circumstances. The general undesirable nature of dual citizenship on an international scale was further exhibited by the Hague Convention of 1930, which stated in its preamble that it is in the general interest of the international community to secure that all its members should recognise that every person should have a nationality and should have one nationality. 10 Since then, increased liberalism and the globalization of the world economy have significantly changed the paradigm regarding recognition of dual citizenship; although for many countries, it has been a slow and continual process. With these phenomena, no longer is the concept of dual citizenship only predicated on its effect on the institution of citizenship itself, but also on the moral-social acceptability and the economic consequences of not recognizing dual citizenship. Whereas in the past, citizenship has been considered a privilege granted under the authority and grace of a particular state, it is now considered an almost inalienable right that can be only relinquished intentionally and voluntarily under extremely limited circumstances. Furthermore, many see dual cit- 5 Id. Foreign naturalization of a U.S. citizen coupled with an intent to expatriate communicated to a consular officer will result in the loss of U.S. citizenship and not dual citizenship. See below. 6 Id. See below for the effect on dual citizenship of taking the U.S. oath of allegiance, which calls on the applicant to renounce allegiance to any foreign state. 7 Department of State (DOS), Dual Nationality, available at english/legal-considerations/us-citizenship-laws-policies/citizenship-and-dual-nationality/dualnationality.html. 8 USCIS, Citizenship in the United States, U.S. Immigration Report Series, vol. 1, chart 8 (May 2004), at Id. 10 League of Nations, Convention on Certain Questions Relating to the Conflict of Nationality Law, Apr , League of Nations, Treaty Series, vol. 179, p. 89, No. 4137, available at www. refworld.org/docid/3ae6b3b00.html. The United States is not a party to this convention, but it expresses the prevailing view of the United States at this time.

3 DUAL CITIZENSHIP 285 izenship as a right to employment and travel mobility in the global economy. 11 Similarly, facilitating the global economy has also shifted the major focus from the duties of citizenship owed to the state to the benefits derived by the state from developing international investment, business, trade, travel, and communications opportunities based on dual citizenship. A recent study found that, in developing countries, recognition of dual citizenship increased foreign remittance inflows by $1.19 billion, raised the gross domestic product and household consumption, favored international labor mobility, and improved child survival. In developed countries, while remittance inflows decreased by $1.44 billion as a result of recognition of dual citizenship, gross capital formation and foreign direct investment increased by $12 trillion and $828 billion, respectively. 12 It is against this backdrop that the official positions of many governments, whether by enacted legislation or reversal of official policy, have thawed in their traditional opposition against dual citizenship. Many governments have embraced it fully, while others have provided generous exceptions in specific circumstances that do not result in loss of citizenship. U.S. Policy on Dual Citizenship Neither the U.S. Constitution, the Immigration and Nationality Act (INA), nor any other federal legislation explicitly recognizes dual citizenship. However, the U.S. Supreme Court in Kawakita v. United States, 13 stated that dual nationality is a status long recognized in the law. 14 The court then defined the parameters of dual citizenship as follows: The concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not, without more, mean that he renounces the other. 15 As we have said, dual citizenship presupposes rights of citizenship in each country. It could not exist if the assertion of rights or the assumption of liabilities of one were deemed inconsistent with the maintenance of the other. For example, when one has a dual citizenship, it is not necessarily inconsistent with his citizenship in one nation to use a passport proclaiming his citizenship in the other For instance, citizens of the European Union enjoy the freedom to travel and work anywhere in the member countries. 12 D. K. Oolufade and R. Pongou, Dual Citizenship Institution: A Pareto Improvement? Munich Personal RePEc Archive (Apr. 2012), at 1, available at 13 Kawakita v. U.S., 343 U.S. 717 (1952). 14 Id. Despite the Supreme Court s emphatic recognition of dual citizenship in this case, there were still various statutory provisions at the time that involuntarily deprived a U.S. citizen of his or her U.S. citizenship by operation of law. See INA 349(a)(2), 350, 352, and 401(e). Therefore, as a practical matter, recognition of dual citizenship in the United States was superficial. Nevertheless, the statement of the Supreme Court was instrumental in developing the stronger concept of dual citizenship recognized today, and was a catalyst for a number of important Supreme Court decisions that invalidated these statutory provisions subsequently. See Vance v. Terrazas, 444 U.S. 252 (1980); Rogers v. Bellei, 401 U.S. 815 (1971); Afroyim v. Rusk, 387 U.S. 253 (1967); Schneider v. Rusk, 377 U.S. 163 (1964); Nishikawa v. Dulles, 356 U.S. 129 (1958); and Mandoli v. Acheson, 344 U.S. 133 (1952). 15 Kawakita, 343 U.S. at 723 (1952). 16 Id. at 725.

4 286 AILA S GUIDE TO CITIZENSHIP & NATURALIZATION LAW He can, under certain circumstances, be deprived of his American citizenship through the operation of a treaty or an act of Congress; he can also lose it by voluntary action. See Perkins v. Elg, [307 U.S. 325, 329 (1939)]. But American citizenship, until lost, carries obligations of allegiance, as well as privileges and benefits. For one who has a dual status, the obligations of American citizenship may at times be difficult to discharge. An American who has a dual nationality may find himself in a foreign country when it wages war on us. The very fact that he must make a livelihood there may indirectly help the enemy nation. In these days of total war, manpower becomes critical, and everyone who can be placed in a productive position increases the strength of the enemy to wage war. Of course, a person caught in that predicament can resolve the conflict of duty by openly electing one nationality or the other and becoming either an alien enemy of the country where he resides or a national of it alone. Yet, so far as the existing law of this country is concerned, he need not make that choice, but can continue his dual citizenship. 17 Despite the Supreme Court s clear pronouncement in Kawakita, dual citizenship for U.S. citizens was still severely curtailed, mainly on the basis of statutory provisions that permitted the loss of U.S. citizenship by acts performed without the intent to renounce citizenship. 18 For instance, a naturalized citizen could lose U.S. citizenship merely for residence in his country of birth for three years under section 352(a)(1) of the INA of In 1964, this section was held unconstitutional by the Supreme Court in Schneider v. Rusk. 19 Similarly, U.S. citizens could lose their citizenship for voting in a foreign election under INA 401(a). This section was similarly held unconstitutional under the citizenship clause 20 in Afroyim v. Rusk 21 in In 1971, the Supreme Court did uphold in Rogers v. Bellei 22 the constitutionality of section 301 (b) of the INA of 1952, which provided that one who acquires U.S. citizenship by birth abroad to a U.S. parent shall automatically lose his citizenship, unless he resided in the United States continuously for five years between the ages of 14 and Nevertheless, in 1980, the Supreme Court in Vance v. Terrazas 24 confirmed the requirement that U.S. citizenship cannot be lost without the government first proving the intent to relinquish U.S. citizenship. While the Supreme Court has generally ruled in favor of dual citizenship, the Department of State (DOS) has historically opposed it vigorously in many instances. 25 Since 17 Id. at For a concise summary of these provisions, see 7 Foreign Affairs Manual (FAM) 1200 Appendices A and C. Statutory grounds to preclude dual citizenship included engaging in any military/government service for a foreign government; voting in a foreign political election; deserting the armed forces in time of war; treason; and residence for a specified time in foreign countries by naturalized citizens U.S. 163 (1964). 20 It was held that U.S. citizenship under the Fourteenth Amendment could not be lost without an act committed with the intent to relinquish citizenship U.S. 253 (1967), overturning Perez v. Brownell, 356 U.S. 44 (1958) U.S. 815 (1971). 23 The section upheld was repealed in Pub. L , 92 Stat (Oct. 10, 1978) U.S. 252 (1980). 25 See, e.g., Vance v. Terrazas, 444 U.S. 252 (1980); Rogers v. Bellei, 401 U.S. 815 (1971); Afroyim v. Rusk, 387 U.S. 253 (1967); Schneider v. Rusk, 377 U.S. 163 (1964); Nishikawa v. Dulles, 356 U.S. 129 (1958); and Mandoli v. Acheson, 344 U.S. 133 (1952). DOS has authority over the processing of all U.S. passports, as well as over citizenship determinations for those physically present outside the United States.

5 DUAL CITIZENSHIP , however, the agency has tolerated dual citizenship and has not aggressively pursued those claiming dual citizenship, subject to the limited instances described below. 26 The current official DOS policy, as stated in the Foreign Affairs Manual (FAM), is as follows: 1. The United States recognizes the existence of dual nationality, but does not encourage it as a matter of policy because of the problems it may cause; Dual nationality may hamper efforts by the U.S. government to provide diplomatic and consular protection abroad; When a U.S. citizen is in the other country of dual nationality, that country has the predominant claim on the person and that country has the right to assert its claim without interference from the U.S. government; When a U.S. citizen is in the other country of dual nationality, the person owes paramount allegiance to that country; Dual citizens are required to enter and leave the United States using U.S. passports; Consular officers may not issue nonimmigrant visas to U.S. citizens until citizenship claims have been resolved; The United States has signed a limited number of bilateral consular agreements or arrangements that govern certain questions related to dual nationals and consular assistance. 33 Moreover, DOS, according to the spirit of the current statutory provision on the loss of citizenship, 34 presumes by means of an administrative premise that U.S. citizens On the other hand, the Department of Homeland Security administers the naturalization process. It also adjudicates applications for certificates of citizenship for those physically present in the United States. In the course of immigration proceedings and admissions to the United States, it also determines whether a particular individual may be a U.S. citizen. 26 See DOS cable and decision detailing this policy at 67 Interpreter Releases 799 (July 23, 1990) and 67 Interpreter Releases 1092 (Oct. 1, 1990) FAM 081(e). 28 Id. 29 Id FAM 086(b). Cf. Kawakita v. U.S, 343 U.S. 717 (1952). In this case, the Supreme Court found that a Japanese citizen living in Japan still owed a duty of allegiance to the United States as a dual national of both countries and, therefore, could be tried for treason again the United States FAM 085(a). As a practical matter, the question often arises as to which passport travelers with dual citizenship should provide to the airlines. The conventional wisdom has been to provide the passport for the country to be entered, since this is the country whose passport would be provided upon arrival. However, with security precautions now requiring detailed passenger lists from the departing country, especially the United States, this conventional wisdom may need rethinking to avoid confusion at the departure stage. 32 See 7 FAM FAM 086(e) ( These agreements generally provide that all nationals of the United States entering the other country on the basis of U.S. travel documents containing properly executed entry and exit visas will, during the period for which their status has been accorded, and in accordance with the visa s period of validity, be considered nationals of the United States by the appropriate authorities of the foreign country for the purpose of ensuring consular access and protection by the United States ). 34 See 7 FAM 083. INA 349, as amended, states that U.S. citizens are subject to loss of citizenship, if they perform certain specified acts voluntarily and with the intention to relinquish U.S. citizenship. Acts include

6 288 AILA S GUIDE TO CITIZENSHIP & NATURALIZATION LAW intend to retain U.S. citizenship when they naturalize in a foreign state, declare allegiance to a foreign state, serve in the armed forces of a foreign state not engaged in hostilities with the United States, or accept non-policy level employment with a foreign government. 35 DOS applies this premise to a person who: 1. is naturalized in a foreign country; 2. takes a routine oath of allegiance to a foreign state; 3. serves in the armed forces of a foreign state not engaged in hostilities with the United States; or 4. accepts non-policy level employment with a foreign government. 36 Furthermore, a person who commits one of the above acts does not have to provide evidence of his or her intent to retain U.S. citizenship. 37 Similarly, if commission of one of the above acts becomes known, consular officers are instructed to simply ask the applicant if he or she intended to relinquish U.S. citizenship, when performing the act. 38 If the answer is no, then the consular officer must certify that it was not the person s intent to relinquish U.S. citizenship and find that the person has retained U.S. citizenship. 39 In addition, the presumption established by the administrative premise is applicable retroactively, and people who previously lost U.S. citizenship may have their cases reconsidered in light of this more inclusive policy. 40 In the following cases, however, the administrative premise does not create a presumption of the intent to maintain U.S. citizenship. These apply to a person who: 1. formally renounces U.S. citizenship before a consular officer; 2. serves in the armed forces of a foreign state engaged in hostilities with the United States; 3. occupies a policy level position in a foreign state; or 4. is convicted of treason. 41 naturalization in a foreign state after the age of 18; taking an oath, affirmation or other formal declaration of allegiance to a foreign state or its political subdivisions after the age of 18; entering the armed forces of a foreign state engaged in hostilities against the United States or serving as a commissioned or noncommissioned officer in the armed forces of a foreign state; accepting employment with a foreign government after the age of 18, if (a) one has the nationality of that foreign state or (b) an oath or declaration of allegiance is required in accepting the position; formally renouncing U.S. citizenship; and conviction for an act of treason. 35 DOS, Advice about the Possible Loss of U.S. Citizenship and Dual Nationality, available at 36 Id. 37 Id. 38 Id. 39 Id. 40 Id. 41 Id. In Kawakita v. U.S., 343 U.S. 717 (1952), a major consideration for recognizing dual citizenship was to establish a duty of allegiance to the United States as an element of the crime of treason. This ground for loss of U.S. citizenship implies that a duty of allegiance exists to convict the accused of treason, but at the same time, is an indicator of his abandonment of this duty. Whether the act of expatriation envisaged is the passive conviction for treason, rather than the act of treason itself, is debatable.

7 DUAL CITIZENSHIP 289 Although the above presumption does not apply to these acts, consular officers must still determine that even these acts were completed with the intent to relinquish U.S. citizenship. 42 While DOS s current position clearly recognizes dual citizenship, some questions do remain. First, the United States has retained the text of the naturalization oath that requires renunciation of prior allegiances to all foreign states. 43 Does this oath contradict recognition of the concept of dual citizenship for naturalized U.S. citizens? Second, while a routine oath of an allegiance by a U.S. citizen in a foreign naturalization proceeding falls under the administrative premise, what is the effect of a U.S. citizen taking a foreign naturalization oath (similar to the U.S. oath) that expressly requires renunciation of current citizenships? Would this also be considered a routine oath? While the current U.S. oath appears to reject dual citizenship, 44 DOS s current policy of tolerating dual citizenship means that it is not pursuing those dual citizens that take the U.S. oath, but whose foreign countries give no legal effect to the renunciation made in the oath. Similarly, it appears that DOS s current tolerance of dual citizenship treats a U.S. citizen who renounces U.S. citizenship in a foreign naturalization proceeding as merely routine without precipitating a loss of U.S. citizenship, unless this intent is communicated expressly to a consular officer. As a practical matter, DOS is not pursuing proceedings to effectuate the loss of U.S. citizenship in these cases. Foreign States and Dual Citizenship In addition to understanding the United States treatment of dual citizenship, foreign nationals must also be aware of their home countries approaches to dual citizenship to avoid the unintended consequences of losing such citizenships when naturalizing in the United States. It is important to note that some countries will bar dual citizenship under all circumstances, such that naturalizing in the United States will always forfeit citizenship. Other countries will provide very limited circumstances, when dual citizenship will be recognized (e.g., marriage to a U.S. citizen, maintaining significant ties to the foreign country). Some countries will consider the U.S. oath of allegiance as an express renunciation of its citizenship; others will consider this renunciation as having no legal effect upon its 42 DOS, Advice about the Possible Loss of U.S. Citizenship and Dual Nationality, available at 43 The full oath reads: I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God. U.S. Citizenship and Immigration Services, Naturalization Oath of Allegiance to the United States of America, available at 44 It should be noted that the U.S. naturalization oath may also be unconstitutional under the Equal Protection Clause of the U.S. Constitution, since it permits dual citizenship to U.S.-born citizens, but not to U.S.- naturalized citizens that require renunciation of prior citizenships. See Schneider v. Rusk, 377 U.S. 163 (1964), where the Supreme Court held that provisions for loss of citizenship applying only to naturalized citizens were discriminatory and unconstitutional.

8 290 AILA S GUIDE TO CITIZENSHIP & NATURALIZATION LAW citizenship. Finally, some countries will require an application for retention of citizenship prior to naturalizing in the United States. 45 Conclusion We have seen a significant shift in U.S. policy towards the recognition of dual citizenship with foreign countries. Now, subject to the very limited exceptions outlined above, the United States recognizes the acceptability of dual citizenship in almost all circumstances. While many foreign countries have changed their laws to accept dual citizenship in a similar manner as the United States, there are still many others that do not recognize dual citizenship and strip citizenship from their nationals when taking up citizenship of another country or by performing acts of citizenship (such as voting or residence in the foreign country). With increased liberalism and the rights of citizenship favored over an authoritarian privilege/duty approach to citizenship, in conjunction with the major significant advantages of recognizing dual citizenship, it is predicted that more countries will begin recognizing dual citizenship and change their laws accordingly. 45 While a comprehensive review of the dual citizenship laws of the countries of the world is beyond the scope of this chapter, a good starting point (although outdated for some countries) is Citizenship Laws of the World, published by the U.S. Office of Personnel Management, Investigations Service in March It is available here: Foreign embassy websites are a rich source of information on a country s dual citizenship laws.