January 25, 2025

Keeping this short, sweet and to the point:

I recommend NOT applying for Certificates Of Loss Of Nationality (“CLNs”) based on a past relinquishing act. Past relinquishing acts include ANY form of relinquishment that is not a present day “renunciation” of U.S. citizenship. (See the appendix to this post.)

If you need help with this problem feel free to reach out to me.

This recommendation is based on experiences in Canada:

– knowing several cases where the Consular appointments documenting the past relinquishing act took place almost two years ago. The individuals have still, despite repeated inquiries, NOT had a response from the State Department! To be clear, two of these were based on naturalizations as Canadian citizens after June 16, 2008 (meaning they were clearly subject to U.S. taxation up to the date of the appointment and were in fact tax compliant!)

– the new rules (using a new DS-4079) which took effect on November 1, 2024 make it VERY clear that the State Department is reviewing the evidence of voluntariness and intent to relinquish U.S. citizenship. The voluntariness and intent must be proven at the moment of the expatriating act!

– I know people who submitted applications to renounce U.S. citizenship (in Canada) prior to November 1, 2024 (and therefore prior to the beginning of the new DS-4079), who are awaiting appointments to renounce. They have subsequently received messages asking them (in anticipation of their renunciation appointments) to complete the new DS-4079. The message to them also included the statement that:

The Department of State will only have a legal basis to approve a CLN in your name if the preponderance of evidence shows that you voluntarily performed a potentially expatriating act with the intent to relinquish U.S. nationality.

Notice that the burden of proof is on the person seeking the CLN. The State Department decides what it takes to satisfy the “preponderance of the evidence” standard. This is a difficult burden to meet when the relinquishing act was many years ago. It appears that the facts of “NOT exercising any rights of U.S. citizenship” (after the relinquishing act) are insufficient to meet the evidentiary standard.

For many years I was able to assist (many) people in getting CLNs based on “relinquishing acts in the past”. The law has not changed. What appears to have changed is what the State Department will accept as evidence of meeting the “burden of proof” of voluntariness and intent. The shift in the State Department attitude appears to have started about two years ago. It is clearly expressed in the new DS-4079. I have been warning people about this for the last year or so. I strongly suggest that people exercise extreme caution in applying for CLNs based on relinquishing acts in the past. This is particularly true for those who need a CLN relatively quickly.

Bottom line: You should renounce!

At this point my suggestion is (assuming you qualify):

Renounce and use the 2019 “IRS Relief Procedures For Former Citizens“. Current information on the “Relief Procedures For Former Citizens” program is here.

If you need help, feel free to contact me.

John Richardson – Follow me on X.com @ExpatriationLaw

Appendix – 349(a) of the Immigration and Nationality Act.

What follows is the statute governing relinquishment of U.S. citizenship. I have added “JR Commentary in italics“.

Notice that paragraph (b) describes the “burden of proof”.

I suggest using (5) renunciation as your method of relinquishment. The other options are now presenting hurdles that are difficult to meett.

§1481. Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions

(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality–

JR Commentary: The general test is that the expatriating act must be or have been performed voluntarily and with the intention of relinquishing U.S. citizenship.

(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or

JR Commentary: This is a past relinquishing act. I know of people who have relied on this and are having difficulty getting CLNs.

(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or

JR Commentary: This is a past relinquishing act. I know of people who have relied on this and are having difficulty getting CLNs.

(3) entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer; or

JR Commentary: Again, only in the most extraordinary circumstances will this succeed.

(4)(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or (B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or

JR Commentary: This depends on the nature of the work for the foreign government. Only specific kinds of employment have a chance of success (and even then there is the problem of proof).

(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or

JR Commentary: So far I have never had a renunciation, at the Consulate rejected. If you want a CLN quickly this is the way to go.

(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or

(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

___________________________________________________________

(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.

JR Commentary: It appears that the focus of the State Department is now squarely on whether the individual seeking the CLN has met this burden of proof.

(June 27, 1952, ch. 477, title III, ch. 3, §349, 66 Stat. 267 ; Sept. 3, 1954, ch. 1256, §2, 68 Stat. 1146 ; Pub. L. 87–301, §19, Sept. 26, 1961, 75 Stat. 656 ; Pub. L. 94–412, title V, §501(a), Sept. 14, 1976, 90 Stat. 1258 ; Pub. L. 95–432, §§2, 4, Oct. 10, 1978, 92 Stat. 1046 ; Pub. L. 97–116, §18(k)(2), (q), Dec. 29, 1981, 95 Stat. 1620 , 1621; Pub. L. 99–653, §§18, 19, Nov. 14, 1986, 100 Stat. 3658 ; Pub. L. 100–525, §§8(m), (n), 9(hh), Oct. 24, 1988, 102 Stat. 2618 , 2622.)

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1481&num=0&edition=prelim