A. Oath of Renunciation of U.S. Nationality Abroad – INA 349(a)(5)

Immigration and Nationality Act (INA) Section 349(a)(5) (provides that a U.S. citizen may “mak[e] 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." The U.S. Department of State is authorized to approve a properly completed request for a Certificate of Loss under (a)(5) if the U.S. citizen establishes that they took the oath voluntarily and with the intention of relinquishing U.S. nationality.  Voluntariness is presumed but may be rebutted based on the facts and circumstances of the individual case.  The Department in general views taking the oath to be an unequivocal statement of intent to relinquish – again, depending on the A person requesting a Certificate of Loss of Nationality under INA 349(a)(5) must:

1) review and acknowledge review of Department provided information on loss of nationality

2) attend two interviews with a U.S. diplomatic or consular officer abroad, at least one of which must be in person;

3) complete the required forms; and

4) take the oath of renunciation of U.S. nationality in person in a manner prescribed by the Department of State.

The Department may have a legal basis to approve only a properly completed request for a Certificate of Loss, which includes taking the oath of renunciation in person (versus by mail, electronically, or through agents).

Questions about taking the oath of renunciation of U.S. citizenship while in the United States pursuant to INA section 349(a)(6) must be directed to United States Citizenship and Immigration Services (USCIS) of the Department of Homeland Security. 

B. REQUESTING A CERTIFICATE OF LOSS OF NATIONALITY OF THE UNITED STATES UNDER INA 349(a)(1)-(4)

A person requesting a Certificate of Loss of Nationality under INA 349(a)((1)(4) based on past performance of a potentially expatriating act must:

1) review and acknowledge review of Department provided information on loss of nationality

2) attend two interviews with a U.S. diplomatic or consular officer abroad, at least one of which must be in person; and

3) complete the required forms and execute them in person before a U.S. diplomatic or consular officer abroad.

C. CONSIDERATIONS APPLICABLE TO A REQUEST FOR A CERTIFICATE OF LOSS UNDER INA 349(a)(1)-(5) -

MUST RENOUNCE ALL RIGHTS AND PRIVILEGES OF U.S. NATIONALITY

A person claiming loss of U.S. nationality must renounce all the rights and privileges associated with that nationality.  In the case of Colon v. U.S. Department of State, 2 F.Supp.2d 43 (1998), the U.S. District Court for the District of Columbia rejected Colon’s petition for a writ of mandamus directing the Secretary of State to approve a Certificate of Loss of Nationality in the case because, despite his oath of renunciation, he wanted to retain the right to live in the United States while claiming he was not a U.S. citizen. 

 MAY BE/BECOME STATELESS

Persons who seek to take the oath of renunciation under INA 349(a)(5) or who are requesting that the Department issue a Certificate of Loss of Nationality based on a potentially expatriating act they may have performed in the past under INA 349(a)(1)-(4), should be aware that, unless they already possess a foreign nationality, they may be rendered stateless and, thus, lack the protections of any government. They may also have difficulty traveling as they may not be entitled to a passport from any country. Statelessness can present severe hardships: the ability to own or rent property, work, marry, receive medical or other benefits, and attend school can be affected.  

WILL NEED A VISA TO LAWFULLY ENTER AND DEPART THE UNITED STATES

Former U.S. citizens are required to obtain a visa to travel to the United States or must show that they are eligible for admission pursuant to the terms of the Visa Waiver Program. If unable to qualify for a visa, the person could be permanently barred from entering the United States.

MAY BE BARRED FROM ENTRY  TO THE UNITED STATES

If the Department of Homeland Security determines that former U.S. citizen’s motivation for requesting a Certificate of Loss of Nationality of the United States is to avoid U.S. taxes, the individual will be found inadmissible to the United States under Section 212(a)(10)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(10)(E)), as amended.

MAY BE DEPORTED TO THE UNITED STATES EVEN AS A FORMER U.S. CITIZEN

A foreign country may still deport a former U.S. citizen who has been issued a Certificate of Loss of U.S. Nationality to the United States in some non-citizen status.

TAX & MILITARY OBLIGATIONS

Persons who wish to take the oath of renunciation under INA 349(a)(5) or who are requesting a Certificate of Loss of Nationality under INA 349(a)(1)-(4) should be aware that if the Department issues of a Certificate of Loss of Nationality in the person’s name (reflecting the official determination of loss of U.S. nationality) the former U.S. citizen’s U.S. tax or military service obligations may remain unchanged (contact the Internal Revenue Service or U.S. Selective Service for more information).

NO ESCAPE FROM PROSECUTION or FINANCIAL OBLIGATIONS

Former U.S. citizens remain subject to possible prosecution for crimes which they may have committed or may commit in the future which violate United States law, or escape the repayment of financial obligations, including child support payments, previously incurred in the United States or incurred as United States citizens abroad.

IRREVOCABILITY OF LOSS OF NATIONALITY

A U.S. citizen who requests and is issued a Certificate of Loss of Nationality of the United States under INA 349(a)(1)-(5) should understand that the Department’s determination of loss of nationality is final and irrevocable, except as provided in section 351 of the INA (8 U.S.C. 1483), and cannot be canceled or set aside absent a successful administrative review or judicial appeal. (However, see Section 50.51 of Title 22 of the Code of Federal Regulations regarding the administrative review of previous determinations of loss of U.S. citizenship.)  

Please consider the effects of taking an oath of renunciation under INA 349(a)(5) or pursuing a loss of nationality claim under INA 349(a)(1)-(4) U.S. citizenship, described above, before taking any of these serious and irrevocable actions. If you are outside the United States and have any further questions regarding requesting a Certificate of Loss of Nationality of the United States, please contact the U.S. embassy or consulate nearest to you for more information. If you are inside the United States and have further questions about taking an oath of renunciation while in the United States, please contact the Department of Homeland Security.

 See also

SPECIAL NOTE REGARDING MINOR CHILDREN/INDIVIDUALS WITH DEVELOPMENTAL OR INTELLECTUAL DISABILITIES

Citizenship is a status that is personal to the U.S. citizen. One person may not perform a potentially expatriating act or request a Certificate of Loss of Nationality on behalf of another person. Parents may not take the oath of renunciation or otherwise seek to relinquish the U.S. citizenship of their minor children. Similarly, parents/legal guardians may not relinquish the citizenship on behalf of an individual who may lack sufficient capacity to do so. Minors seeking to take the oath of renunciation under INA 349(a)(5) must demonstrate to a consular officer that they are acting voluntarily, without undue influence from parent(s), and that they fully understand the implications/consequences attendant on loss of U.S. nationality.  Children under 16 are presumed not to have the requisite maturity and knowing intent to relinquish citizenship; children under 18 are provided additional safeguards during the process, and their cases are afforded very careful consideration by post and the Department to assess their voluntariness and informed intent. Unless there are emergent circumstances, minors may wish to wait until age 18 to renounce citizenship. 

Section 351(b) of the INA provides that an applicant who take the oath of renunciation of U.S. citizenship before the age of eighteen (or who otherwise relinquished U.S. citizenship related to certain foreign military service under the age of 18) can have U.S. citizenship reinstated if they alert the Department of State of their wish within six months after attaining the age of eighteen. See also Title 22, Code of Federal Regulations, section 50.20.