Only U.S. Citizens The right to enter the United States
Considering renouncing US citizenship? If you commit #citizide, how does that affect your right to enter/visit the USA? How/why does your citizenship matter? About #ESTA @ExpatriationLaw addresses this issue in the @TaxLinked US S. 877A Exit Tax Webinar https://t.co/abmvxl4iq1
— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) December 13, 2018
Considering renouncing US citizenship? #citizide – US citizens have the right to enter the USA on demand: "Canadian cannabis investor gets lifetime U.S. entry ban as conference goers face scrutiny at border" https://t.co/VpLouY6ok3 via @nationalpost
— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) December 6, 2018
U.S. citizenship has its privileges and its obligations
As the message in the above tweet indicates, ONLY U.S. citizens have the right to enter the United States.
Because U.S. citizens have the right to enter the United States, U.S. citizens are required to enter the United States on a U.S. passport. (The U.S. passport tells the border guard that the individual has the right to enter the United States.) The Immigration and Nationality Act states:
Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.
The border guard does not have the authority to deny entry to a U.S. citizen.
Non-citizens and admission to the United States – Tell me who you are and I will tell you whether you can enter
Non-citizens do NOT have the right to enter the United States. For non-citizens, entry into the United States is governed by the Immigration and Nationality Act and an apparatus of rules and regulations. Different rules and regulations apply to citizens of different countries. When you cease to be a U.S. citizen, you will be treated according to your citizenship/nationality.
Let’s consider four categories of individuals.
1. Non-citizens who are inadmissible – Sec. 212 Immigration and Nationality Act
Section 212 of the Immigration and Nationality Act describe classes of persons who are inadmissible for entry into the United States. Those with a criminal record (including a criminal record for crimes committed outside the United States) should exercise caution. In most cases a waiver is possible. In Appendix A of this post I have listed some of the most interesting grounds of inadmissibility.
2. Canadian citizens and permission to enter the United States – It’s great to be Canadian!
Canadians have relatively easy access to the United States. In most circumstances, Canadian citizens do not require visitor, business, transit or other visas to enter the United States, either from Canada or from other countries.
Canadians – The NEXUS card – holding oneself out as a U.S. citizen – and renunciation
Considering renouncing US citizenship? #citizide – What is the effect on your NEXUS card? "Global Entry, NEXUS and the effect of renouncing US citizenship" https://t.co/9oK103HfV5 via @ExpatriationLaw
— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) December 12, 2018
3. Citizens of countries other than Canada – Possible visa Waiver – The role of ESTA
ESTA = “Electronic System for Travel Authorization”
Citizens of “visa waiver” countries do not require visas to enter the United States (but they do need an ESTA travel authorisation). The form required to secure the ESTA authorisation will ask questions to determine whether there are general grounds for inadmissibility including whether you have a criminal record.
ESTA and the question about criminal records
The question you will be asked in your ESTA application may be equivalent to:
“Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?”
An answer of yes will likely result in the denial of your ESTA. This means that you would not be able to enter the United States under the Visa Waiver Program.
You would then be required to apply for a visa along with a waiver of the ground of inadmissibility.
4. Citizens of certain other countries will require a visa to enter the United States.
Remember that a non-citizen does not have the right to enter the United States. A visa will be required. There are many different kinds of visas available. Immigration law is very complex. You will almost certainly need a consultation with an experienced U.S. immigration lawyer.
Entry into the United States After As A Non-Citizen After Renunciation
Therefore, those considering renouncing U.S. citizenship (if they wish to be able to enter the United States) should ask:
What country will I be a citizen of? How easy is it for citizens of that country to enter the United States? Will a visa be required, etc.?
Those considering renouncing U.S. citizenship, who wish to enter the United States after renunciation and who have a criminal record should exercise extreme caution.
Appendix A – Some of the grounds for being admissible to the United States
Sec. 212 – Immigration and Nationality Act – Inadmissible to the United States – A statutory bar to entering the United States
Those who are NOT U.S. citizens (regardless of what citizenship they have) may be barred by statute from entering the United States. Those who meet the requirements of one or more sections of Sec. 212 of the Immigration and Nationality Act (Sec. 1482 of title 8) are “inadmissible” to the United States.
Notable exclusions mandated by Sec. 212 of the Immigration and Nationality Act
INA: ACT 212 – GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND
INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILITY
Sec. 212. [8 U.S.C. 1182]
(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise
provided in this Act, aliens who are inadmissible under the following paragraphs
are ineligible to receive visas and ineligible to be admitted to the United
(2) Criminal and related grounds.-
(A) Conviction of certain crimes.-
(i) In general.-Except as provided in clause (ii), any alien convicted of, or
who admits having committed, or who admits committing acts which constitute the
essential elements of-
(I) a crime involving moral turpitude (other than a purely political offense)
or an attempt or conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any law or
regulation of a State, the United States, or a foreign country relating to a
controlled substance (as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)), is inadmissible.
(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only
one crime if-
(I) the crime was committed when the alien was under 18 years of age, and the
crime was committed (and the alien released from any confinement to a prison or
correctional institution imposed for the crime) more than 5 years before the
date of application for a visa or other documentation and the date of
application for admission to the United States, or
(II) the maximum penalty possible for the crime of which the alien was
convicted (or which the alien admits having committed or of which the acts that
the alien admits having committed constituted the essential elements) did not
exceed imprisonment for one year and, if the alien was convicted of such crime,
the alien was not sentenced to a term of imprisonment in excess of 6 months
(regardless of the extent to which the sentence was ultimately executed).
(B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses
(other than purely political offenses), regardless of whether the conviction was
in a single trial or whether the offenses arose from a single scheme of
misconduct and regardless of whether the offenses involved moral turpitude, for
which the aggregate sentences to confinement 2 were 5 years or more is
(C) CONTROLLED SUBSTANCE TRAFFICKERS- Any alien who the consular officer
or the Attorney General knows or has reason to believe–
(i) is or has been an illicit trafficker in any controlled substance or in
any listed chemical (as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister,
conspirator, or colluder with others in the illicit trafficking in any such
controlled or listed substance or chemical, or endeavored to do so; or
(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i),
has, within the previous 5 years, obtained any financial or other benefit from
the illicit activity of that alien, and knew or reasonably should have known
that the financial or other benefit was the product of such illicit activity, is
(E) Former citizens who renounced citizenship to avoid
taxation.-Any alien who is a former citizen of the United States who officially
renounces United States citizenship and who is determined by the Attorney
General to have renounced United States citizenship for the purpose of avoiding
taxation by the United States is excludable.
Note that waivers are possible as per …
(b) Notices of Denials.- (1) Subject to paragraphs (2) and (3) if an alien’s application for a visa, for admission to the United States, or for adjustment of status is denied by an immigration or consular officer because the officer determines the alien to be inadmissible under subsection (a), the officer shall provide the alien with a timely written notice that-
(A) states the determination, and
(B) lists the specific provision or provisions of law under which the alien is inadmissible 19/ or adjustment of status.
(2) The Secretary of State may waive the requirements of paragraph (1) with respect to a particular alien or any class or classes of inadmissible aliens.
(3) Paragraph (1) does not apply to any alien inadmissible under paragraph (2) or (3) of subsection (a).
The President can determine that an individual or group of aliens is inadmissible
Sec. 212 (f)
The government’s statutory case hinges primarily on Sec. 212 (f), which provides:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
John Richardson – Follow me on Twitter @ExpatriationLaw