Teenage Expatriation; It’s Difficult

Shameless Promotion

We’re going to do another one of our “expatriation for non-covered expatriates” webinars. December. Two sessions, just like the one we just finished. Again, we will limit the number of people to 10 in order to answer questions completely. In the webinar we just finished we scheduled two 90 minute sessions but probably spent a total of five hours online. My guess is that the December event will be like that again. If you want to be on the list, please email Somath Hasina at somath.hasina@hodgen.com. We will do an “expatriation for covered expatriates” webinar in January. This will be even more limited in the number of people who will attend, because by definition these people are more complicated. Tell Somath if you want to be on the list for that webinar.

This Week

This week’s discussion is not driven by an email but rather by a couple of phone conversations. It’s all about children and expatriation. When I was in law school I drove a ’67 Camaro RS convertible. My license plate said “LOBOTMY”, inspired by the classic Ramones song, Teenage Lobotomy. I was at the DMV for some random reason and the song came into my head. I checked and — shocking, I know — no one had claimed the custom license plate. So I grabbed it. But this is about teenaged (and younger) Americans who are expatriation candidates. Teenage Expatriates. (See what I did there?) The short answer is that it is theoretically possible for a minor to renounce citizenship. But it’s hard work and my suggestion is to wait until the child turns age 18.

The Foreign Affairs Manual

The real impediment to expatriation by minors is the State Department. Not that I fault the State Department. Expatriation by a minor is problematic. The fact that a child’s expatriation is a question raised by the parent gives you a clue to the problem. Your textbook for today’s lesson is the Foreign Affairs Manual. Specifically, look at 7 FAM 1290 – MINORS, INCOMPETENTS, PRISONERS, PLEA BARGAINS, CULTS AND OTHER SPECIAL CIRCUMSTANCES (warning: PDF). The title of this section of the Foreign Affairs Manual tells you we’re in for an interesting ride.

Un-Renouncing and Pointless Work

There is an important paragraph in the Foreign Affairs Manual that gives you a marked clue about why the State Department is so reluctant to allow minors to renounce citizenship:

NOTE: INA 351(b) (8 U.S.C. 1483) provides that a national who within six months after attaining the age of eighteen years asserts his claim to U.S. nationality, in such manner as the Secretary of State shall by regulation prescribe, shall not be deemed to have lost United States nationality by the commission, prior to his eighteenth birthday, of any of the acts specified in paragraphs (3) and (5) of Section 349(a) of this title.”

See 7 FAM 1292(h). In other words, a minor could relinquish citizenship by one of the enumerated actions, and when he turns age 18, immediately assert a right to U.S. citizenship despite having relinquished citizenship before. This means that the State Department might go through a lot of work to allow a minor to renounce, only for the minor to change his mind once he turns age 18. Why bother? It’s easier for the State Department to say “no” at the front end. 🙂

A Minor Can–In Theory–Renounce Citizenship

There is nothing that stops a minor from renouncing citizenship. There are two things that the State Department wants to see from any would-be renunciant:

• Renunciation is voluntary; and
• Renunciation is done with full understanding.

Minors are, in that regard, treated like anyone else who wishes to shed U.S. citizenship. The Foreign Affairs Manual says this, at 7 FAM 1292(i)(2):

Voluntariness and intent: Minors who seek to renounce citizenship often do so at the behest of or under pressure from one or more parent. If such pressure is so overwhelming as to negate the free will of the minor, it cannot be said that the statutory act of expatriation was committed voluntarily. The younger the minor is at the time of renunciation, the more influence the parent is assumed to have. Even in the absence of any evidence of parental inducements or pressure, you and CA must make a judgment whether the individual minor manifested the requisite maturity to appreciate the irrevocable nature of expatriation. Absent that maturity, it cannot be said that the individual acted voluntarily. Moreover, it must be determined if the minor lacked intent, because he or she did fully understand what he or she was doing. Children under 16 are presumed not to have the requisite maturity and knowing intent[.]

Renunciation must be a voluntary act. The person giving up citizenship should not be acting under pressure from anyone. Pressure from parents is an obvious problem. The inference of duress can be counteracted by an assessment by the State Department that the child’s maturity is such that the considered action — expatriation — can indeed be seen as an act of free will, outside of the parents’ pressure. Renunciation must be done knowingly: the individual must understand the fully irrevocable (heh–except for a minor!) consequences of renunciation. Again, this requires a judgment call by the Consular Official. What is the child’s level of cognition and understanding?

Under Age 16? Gravity Works Against You

Note that the State Department says that “[c]hildren under 16 are presumed not to have the requisite maturity and knowing intent[.]” This means that if you go into the Embassy and try to have your young child expatriate, the presumption is against this happening. The State Department will presume that renunciation is not voluntary, and that the child is not sufficiently mature to understand the full consequences of renunciation.

Between 16 and 18? Possible

The presumption falls away at age 16. At that point, presumably the State Department officials will interview the child with an open mind, being willing to be persuaded that the minor’s renunciation is free of duress, and the minor fully understands the consequences of this decision.

Gauntlet

But in order to renounce as a minor, you will have to run a gauntlet of government officials. Ignore what the alphabet soup means. Look at 7 FAM 1292(i)(1):

(1) Consult CA/OCS/ACS: Whenever you receive a request to renounce from a minor you immediately must contact CA/OCS/ACS. CA/OCS/ACS will not approve a Certificate of Loss of U.S. Nationality (CLN) for a minor without the concurrence of CA/OCS/L, and appropriate consultation with L/CA;

Lots of people will be involved. Careers are enhanced by taking the safe path. “Wait until you’re 18, kid” would be safe. The interview process is described as well, at 7 FAM 1292(i)(3):

Interviewing a minor: When conducting the initial interview with a minor and during the renunciation procedure, you should have at least one other person present. The parents and guardians should not be present. As noted, the interview should take place in the presence of the consular officer and a witness, preferably another consular officer, another Foreign Service officer (non consular) or locally employed staff (LE staff). You should also explain that upon reaching the age of 18, the minor has a six month opportunity to reclaim U.S. nationality. See 7 FAM Exhibit 1292, A Sample Letter to Accompany CLN for Minor Renunciants, which should be provided to minor renunciants together with an approved CLN[.]

In Summary

In theory, it can be done. A sufficiently mature minor (ideally between age 16 and 18) may be able to persuade the people at the Embassy or Consulate that the two factors (voluntariness and intent) are present to justify the renunciation. But it’s a hard job. In practice, our advice is to wait until the child turns age 18. The higher burden of proof disappears and the child’s renunciation becomes a garden-variety case.

Disclaimer, Waiver, Warning Shot, Pre-emptive Strike, Etc.

Now of course is a prudent moment to remind you that this is not legal advice. Find someone experienced who can look at your situation and tell you exactly how to do things right. Especially for this immigration and citizenship stuff. Sheesh. What a mess.

Next Week

Next Tuesday there will be another expatriation-related question and answer. Send yours in. Hit “Reply” and start typing. When you’re done, hit “Send”. Phil.