It’s Hard for Minors to ExpatriateJanuary 27, 2015 - Phil HodgenExpatriation
This Week’s Expatriation Question
This week’s question is a semi-frequent topic. U.S. citizen parent wants to renounce citizenship and is curious about a child’s ability to do so.
My child is not 18 yet. Can he renounce his U.S. citizenship?
In theory, a minor can renounce U.S. citizenship after age 16 and before age 18.
In practice? I have not seen it happen; we tell people to wait.
Parents Have No Power
First things first. A parent has no legal power to cause a child’s citizenship to be renounced. As the State Department’s Foreign Affairs Manual notes:
Expatriation, like marriage and voting, is a personal elective right that cannot be exercised by another. Parents or legal guardians cannot renounce or relinquish the nationality of their children or wards, including adults who have been declared mentally incompetent. 7 FAM 1290 provides guidance regarding loss of nationality and minors, incompetents, prisoners, plea bargains, and other special circumstances.1
It’s your kid’s decision and your kid’s action to take. Let’s take a look at the situation from point of view the Embassy official who is facing a child who seeks to renounce citizenship. It’s all too easy for this person to say “No.”
“Why Should I Waste My Time on Something Possibly Pointless?”
In my experience, minors do not renounce their U.S. nationality. They wait until they are age 18 to do so.
To understand why, look at it from the point of view of an Embassy official. “I have to make judgment calls and do hard work that might be arbitrarily reversed by the person asking for help? Forget it.”
When an individual turns age 18, he or she has six months to nullify a renunciation prior to his or her 18th birthday:
A national who within six months after attaining the age of eighteen years asserts his claim to United States 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 1481 (a) of this title.2
Renunciation of U.S. citizenship is an act specified in paragraph (5) of section 1481 (a) of Title 8 of the United States Code.
If you are a busy government employee, are you going to work on something that might be pointless in a couple of years? No, I think not. I wouldn’t.
Let’s look at the hoops that a diplomatic or consular official must jump through in order to let a minor renounce U.S. citizenship. Then you will see why your child should wait until age 18.
Right to Renounce
A U.S. national has the right to renounce U.S. nationality:
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–
(5) [by] 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[.]3
Note that this requires two things:
- “voluntary” performance of an act; and
- an intention to relinquish U.S. nationality.
Foreign Affairs Manual
The State Department’s Foreign Affairs Manual contains the guidelines that the Embassy official follows when handling a request for a renunciation. Here is what it says about minors.
i. Renunciation of U.S. citizenship and minors:
(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;
(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;
(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 (nonconsular) 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;
(4) Consular officer’s opinion: You should fully document every interaction with the minor and explain in your consular officer’s opinion the reasons you believe that the minor is, or is not, mature enough and sufficiently knowing to renounce.4
“Voluntary” and “Intent” – Impossible Under 16, Hard Afterwards
Think of it. Why is a kid showing up an Embassy and asking to renounce his U.S. citizenship? It is unlikely that this is a deliberate, knowing, voluntary, intentional choice by the child.
The Foreign Affairs Manual flatly says that it is impossible for a child younger than age 16 to make a renunciation decision with the necessary “voluntary” deliberation and intent. Don’t even bother applying early.
For children between age 16 and 18, the renunciation is a judgment call by the Embassy official. Except in unusual cases, why should the Embassy official risk getting overruled in making a judgment call?
Conclusion – Wait Until Age 18
I am not saying it is impossible for a minor to renounce citizenship. I’m just saying it is difficult. And if you are 16 already, it’s not that hard to wait until age 18, when you can make the decision stick.
There are unusual situations. Maybe that’s your family’s concern, and if so, give this a try. The stories I’ve heard … . But understand that there is a lot of downside for the consular official hearing your request, and precious little upside to allowing your child to renounce before age 18.
I am not your lawyer, and this is not legal advice to you. If you need help, please hire someone who can advise you.
Next week I will answer another question about expatriation. Send me an email!