Thoughts on: Major updates to Foreign Affairs Manual on U.S. citizenship renunciation procedures

In a well researched post, “Eric” at the Isaac Brock Society writes about updates to the U.S. FAM “Foreign Affairs Manual” on RENUNCIATION (not relinquishment) procedures. The revised procedures are here:
It appears that  “two interviews” will be required, but that only the second interview (actual renunciation”) must be in person.
On balance, it’s clear that the State Department is directing it’s attention to the question of whether the would be “renunciant” really does intend to relinquish U.S. citizenship (after going through all the work of tax compliance, paying the fees, etc.).
The following changes are notable:
1. In the view of the State Department the “intention” to relinquish U.S. citizenship requires an “understanding of the consequences” of no longer being a U.S. citizen.

: When faced with a potential renunciant, a consular officer must make a judgment whether the individual fully understands what he or she is seeking to do, including the consequences such as losing the right to reside in the United States without documentation as an alien. Absent such an understanding, it cannot be said that the individual intended to relinquish his or her U.S. nationality when he or she executed the oath of renunciation. You must also assess whether the person is acting of duress, coercion, or undue influence from others and without reservation. (See 7 FAM 1290 for guidance about minors,persons with mental incompetenceor mental or developmental disability, prisoners, criminal defendants or convicts in pleabargain cases, members of cults, and other …

2. There is NO “intent to renounce” if you intend to continue to live in the United States

Potential renunciants may also express the intention to continue to reside in the United States or its territories and possessions without documentation as aliens. Since this right of residency is a fundamental right that U.S. citizens and nationals possess, potential renunciants who wish to retain this right do not possess the intent necessary for an effective renunciation. Consular officers must not take renunciations from any individual who seeks to retain the right to reside in the United States or one of its territories or possessions.

3. No lawyers – “whether the person is acting of duress, coercion, or undue influence from others and without reservation”

In order for the consular officer to ascertain whether the renunciant’s action in relinquishing his or her U.S. citizenship is a product of his or her own free will, a parent, guardian, attorney, legal representative, or other representative should not participate in any interview, including a telephonic one, conducted by the consular mission member or attend the administration of the oath of renunciation.

4. Interesting – The State Department views U.S. citizenship as ALLEGIANCE to the United States

If possible, the renunciant should stand and raise his or her right hand while taking the Oath of Renunciation. This formality and the symbols of the United States underscore that the renunciant is severing all ties of allegiance to the United States and in doing so loses the protections that the U.S. Government provides to citizens and noncitizen nationals

5. It’s possible that a RENUNCIATION might not be approved by the State Departement

If a renunciation is undertaken but not approved by the Department, the fee is not refundable.

6. U.S. citizenship continues to be primarily about taxation and renunciants should be warned about the Reed Amendment

a.If a would – be renunciant indicates a desire to renounce U.S. citizenship for the purpose of tax avoidance, (see INA 212(a)(10)(e) and any pertinent guidance adopted by the Department), you should consult 7 FAM 1262.4(i) regarding recordation in the consular officer opinion of the purpose stated by the renunciant, and should inform the person that:
(1) Renunciation may not exempt him or her from U.S. income taxation; and
(2) If the Department of Homeland Security determines that the renunciation is motivated by tax avoidance purposes, the individual will be found inadmissible to the United States under Section 212(a)(10)(E) of the Immigration and Nationality Act (INA 212(a)(10)(E), 8 U.S.C
1182(a)(10)(E)), as amended.

7. The Consular officer has the right to postpone the “renunciation interview” (those who are renouncing prior to age 18 1/2 should take particular note of this provision)

Consular Officer Discretion
Prior to administering the Oath of Renunciation and recommending loss, the consular officer must exercise his or her judgment that the renunciant is acting voluntarily and with the intent to lose U.S. citizenship. The consular officer has discretion to request a further period of reflection should this not appear to be the case.

8. Form 4079 is NOT required for “renunciation cases” – but may be useful for the DOS…

While Form DS – 4079, Request for Determination of Possible Loss of United States Citizenship, is not standard or typically necessary for renunciation cases, where there is a question about intent it may prove useful.
Further, the DS -4079 may serve as a helpful tool for information gathering in appropriate cases regarding, for example, ties to the United States and the host country, or possible earlier commission of an expatriating act. In short, consular officers should not seek completion and signature of the DS – 4079 in renunciation cases as a matter of routine but only if pertinent as described above.

Hmmm…. It strikes me that renunciants should NOT seek to complete the form either. Clearly, nothing good can come from it. On the other hand, Form 4079 will continue to be vital for those claiming “relinquishments”. Clearly, the Department of State is beginning to separate “renunciations” from “relinquishments”.

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