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1. Letter, Edward Betancourt, Chief, East Asian and Pacific Division, Office of Citizens Consular Services, regarding expatriating acts (July 1, 1993)


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July 1, 1993

Professor Covey T. Oliver

P.O. Box 473

Inverness, CA 94937

Dear Professor Oliver:

Marian Nash of the Office of the Legal Adviser forwarded your inquiries to this Office for a reply because we administer statutes pertaining to loss of U.S. citizenship and have the responsibility to advise persons regarding dual nationality, the two subjects raised by your letter. Miss Nash sent your inquiry to us in late April. Thus, the delay in replying occurred in this office and we apologize.

As general background, I have enclosed the Department's informational flyer on the loss of U.S. citizenship, renunciation of U.S. citizenship and dual nationality. We wish to address below, however, your specific questions.

At the outset, it should be noted that the various provisions of the Immigration and Nationality Act governing loss of U.S. citizenship apply to all U.S. citizens equally, regardless of whether the individual acquired U.S. citizenship at birth or acquired it subsequently by virtue of naturalization in this country. The Supreme Court has stated that there cannot be two classes of U.S. citizens based upon how that citizenship was attained, Schneider v. Rusk, 377 U.S. 163 (1964).

Section 349(a)(4) of the Immigration and Nationality Act pertains to potential loss of nationality as a consequence of acceptance of high political office in foreign governments. That subsection provides that a person who is a national of the United States risks loss of U.S. citizenship if he/she accepts employment with a foreign government and either (1) has the nationality of that foreign state or (2) the employment requires an oath or declaration of allegiance. However, even assuming that the hypothetical actions you propose are encompassed by Section 349(a)(4), the individual's intent toward retaining U.S. citizenship is still relevant. Thus, in addition to committing one of the acts defined in INA 349(a)(4) as potentially expatriating, loss of U.S. citizenship cannot occur unless and until it is determined that the individual acted voluntarily and intended to relinquish his/her citizenship.

The intent to relinquish citizenship was the focus of Kahane v. Shultz, 653 F.Supp. 1486 (E.D.N.Y. 1987). The Kahane court held that a declaration of intent to retain citizenship, even when made simultaneously with the commission of an act made potentially expatriating by statute, is sufficient to preserve the actor's U.S. citizenship. Id. at 1493. Once acquired, citizenship cannot be diluted or canceled at the will of the Federal Government or any governmental unit. Afroyim v. Rusk, 387 U.S. 253, 262 (1967).
It has not been established that the act of serving as Prime Minister of a foreign country is not necessarily inconsistent with American citizenship and would not automatically deprive the actor of U.S. citizenship. It is worth noting that every citizenship case is judged solely on its merits. However, it is only on a case-by-case basis that the Department could determine whether committing any expatriating act detailed in INA 349(a)(4) would be sufficient to deprive the actor of U.S. citizenship.

Regarding your request for information on dual nationality and diplomatic protection, dual nationals are required to use their U.S. passport when entering or leaving the United States by Section 215 INA. While dual nationals may be required to use their non-U.S. passport when entering or leaving the country of issuance, the Department of State recommends that dual nationals use their U.S. passport for travel to other countries.

For purposes of consular protection, the Department generally does not distinguish between dual nationals and other U.S. citizens. The assistance which can be provided to persons while in the country of their other nationality, however, is necessarily limited.

I hope this information will be of assistance to you and your colleagues. If you have any additional questions regarding citizenship issues, please contact me at (202) 647-3675.

Sincerely,

 

 

Edward A. Betancourt

Chief

East Asian and Pacific Division

Office of Citizens Consular Services

 



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