April 1998

GUEST ARTICLE: LOSS AND RECOVERY OF U.S. CITIZENSHIP -- SOME OBSERVATIONS

by Richard J. Douglas, Attorney at Law

Do you have such a letter tucked away in your file cabinet? If so, you are not alone. Over the years, hundreds of your US citizen compatriots received them, too. The purpose of this article is to take a brief look at how some of our compatriots ran afoul of our country's nationality law, and to discuss a possible solution.

An Example--The Expatriate Working Woman
The facts: In 1980 Jane Doe, a US citizen, met Inaki Goikoetxea, a Spaniard, while the latter was completing his medical studies at Yale. Jane -- a professional in her own right -- married Inaki and after the wedding moved to Spain. In 1986, anxious to help defray family expenses, and in order to accept an offer of employment as a computer engineer (a post which was reserved for Spanish citizens), Jane applied for Spanish nationality. In August 1986, the Spanish government approved her application. Shortly thereafter, Jane signed an oath of allegiance to Spain, renouncing allegiance to all other states.

A month later, Jane and her children traveled to the US from Spain using US passports. While in New Haven for a lengthy visit, Jane voted in US congressional elections, and applied for social security numbers for her children. She and the children returned to Spain just after the New Year, using US passports to board their flight, and using Spanish passports at the entry checkpoint in Madrid. Upon her return, Jane found a letter from the American Consulate in Bilbao asking her politely to appear "in connection with a citizenship matter." Despite Jane's protestations, the American vice consul informed Jane some months later of the US government's concurrence in her finding that, in August 1986, she expatriated herself.

Hypothetical Cases are Based on Fact
This hypothetical case was in fact based upon the case of a real person for whom I was fortunately able to recover US nationality. So let's do a brief analysis of the case from a typical consular officer's perspective.

• First, in citizenship loss cases, it is always prudent to assume that the American consular officer is convinced that the citizen knows exactly what he or she is doing. In the case above, Jane signed an oath of allegiance with renunciatory language. The likelihood that an American embassy adjudicator would believe that the person making the oath -- in particular, an adult professional -- did not understand the plain meaning of the written text is extremely remote.
• Second, the case illustrates the fact that in many foreign countries, naturalizations are listed in the local version of the US Federal Register. Thereafter, it is a simple matter to match the names with Embassy registration records, confirm naturalization with the responsible local authorities, and voila!, a loss of nationality case is born.

Is it Too Late?
If you are still reading, it may be that you see yourself or someone you know in the hypothetical set out above. You may be wondering whether there is anything that can be done, particularly in cases of loss dating back years. Well, the good news is "maybe."

There have been some successes in revisiting a number of loss of nationality findings which were made by American passport officers many years ago. Such success has been the result not of the much-vaunted "cheapening" of US citizenship, but rather it is the fruit of thorough investigation of the record, an evaluation of the "extrinsic" or objective circumstances of our former compatriot's life which may not have been disclosed previously, careful fact-gathering, organization of the facts, and, at last, a large helping of patience.

Today it is possible to make a respectable showing of facts not previously in the record in a loss of nationality hearing -- even many years after the fact -- and obtain a fair hearing from the State Department. Much patience is warranted, however, as a result of the sometimes time-consuming record retrieval process. Moreover, the absence of resources hamstrings nationality adjudicators. But in the end, for some of our former compatriots, a second chance may be possible.

In general, I see several common patterns in my nationality work. All of my clients believe that the loss decision against them was unjust. Many make a credible case for not understanding at the time how their actions in the foreign state could affect their US citizenship. Likewise, many can provide compelling evidence that a given act was undertaken involuntarily, for a variety of reasons. All reject adamantly the notion that they performed an expatriatory act with the intent to relinquish US citizenship.

Curiously, though, all of these clients also engaged in conduct before and after the expatriatory act in question which patently contradicted the notion of intent to relinquish US citizenship. Yet each failed to disclose this conduct to the American embassy during the nationality loss investigation.

In closing, it is interesting to note that those who recover their nationality after many years usually find themselves face to face with a large set of new concerns: does this mean that children born to me after my citizenship loss may now be documented as US citizens? (sometimes) Shall I return to the US and take my family along as lawful immigrants? (depends) Having recovered US citizenship, have I put my other' nationality in jeopardy? (not likely). What about US taxation? (probably no liability) "En fin", as Inaki would say, there will be many new decisions to make.

Copyright © 1998, Richard J. Douglas. tel: +1 (202) 8870920 fax: +1 (202) 8870352. Reproduction and dissemination crediting the author is gratefully encouraged.