JAJ

As I understand it, prior to 1973 the Canadian citizenship oath included language renouncing all foreign citizenships (similar to the U.S. oath today). Whether such renunciation was legally effective depended on laws of prior country of citizenship, but it would not be surprising if new Canadian citizens had been asked to hand in their foreign passports at the time. The Canadian government should have returned these passports to the relevant foreign authority. Whether of course this actually happened, or was recorded, at the time is another question.

MarylandNed

As I'm sure you know, the US Naturalization Oath of Allegiance means absolutely nothing by itself. I naturalized as a USC but kept my Irish, UK and Canadian citizenships because none of those countries considers the US oath to be a renunciation of their citizenship. They each have their own procedures for renunciation. So, as you said, only the country of prior citizenship determines who is and who isn't citizens of that country - it's got nothing to do with the US.

Regardless of whether the US passport was actually returned to the US government, dual nationality was a concept that was recognized in the US at that time. Having a Canadian official tell her that she must give up prior citizenships and taking her US passport away doesn't really mean a whole lot by itself. Only US law applies as far as determining US citizenship is concerned. Unless she renounced her US citizenship in front of a US official, she can claim that she did not intend to give up her US citizenship when she became Canadian and is therefore still a USC. On the other hand, she can claim that she did intend to give up US citizenship and that naturalizing as a Canadian citizen and handing in her US passport was proof of her intention.

Either way, I think it would be interesting to know if the US currently considers her to be a USC. If she is still considered a USC, then her children are likely also considered to be USCs.

Everyone can keep quiet, carry on with their lives and hope for the best. However, if there is a scenario that everyone wants to be true, then perhaps they should work towards clarifying the situation.

JAJ

Except that dual nationality generally wasn't recognized in the U.S. at the time (1950s, 1960s). It's noted that unlike in Canada, Australia or the U.K. (for example) there isn't a specific cut-off date which determines whether a foreign naturalization causes loss of U.S. citizenship. U.S. policy evolved over time, starting with Supreme Court rulings in 1967 and 1980, amendments to the Immigration & Nationality Act in 1986, and the current State Department administrative policy established in 1990.

A U.S. citizen who naturalized in Canada in the 1960s would generally have been regarded at the time by the United States as having given up United States citizenship. However, these cases can be re-evaluated in the light of the subsequent interpretations of the U.S. Constitution and the current policy.

WEBlue

This is what she's always said, that she had to choose only one, and since she was married to a Canadian, pregnant and settled in Canada, she chose the Canadian passport over the American. It was a different era--married women these days might not choose that way, but she did. She had family in the USA, and visited them on her Canadian passport.

MarylandNed

I was talking about the concept of dual nationality existing at the time and the recognition that there were people who held US citizenship and one or more other citizenships at the same time. This was most certainly the case in the 1950s and 1960s - and well before then as well. For example, there were people who became naturalized USC's and retained their prior citizenship (e.g. Albert Einstein in 1940). There were people who were US citizens at birth and who also had other citizenships. In Kawakita v. U.S. (1952), the US Supreme Court ruled that Kawakita was a dual citizen at birth. So it CANNOT be claimed that dual citizenship was an unknown concept or that dual citizenship was taboo in the 1950s and 1960s.

In fact, in Afroyim v Rusk (1967), the US Supreme Court ruled that US citizenship is a CONSTITUTIONAL RIGHT protected by the citizenship clause of the 14th Amendment (which was adopted in 1868). Basically this meant that the US government cannot legislate away someone's US citizenship - and any existing laws/rules/regulations doing so are completely without foundation and contrary to the US Constitution. So any USC simply naturalizing as a Canadian citizen before this can claim they they did not lose US citizenship, did not intend to give up US citizenship and are, in fact, still USCs.

MarylandNed

Yes, but the US govt's attempts to legislate away someone's US citizenship (without them formally renouncing it themselves) were ruled unconstitutional by the US Supreme Court in Afroyim v Rusk (1967). The court ruled that US citizenship is a constitutional right protected by the citizenship clause of the 14th Amendment. Remember that the 14th Amendment was adopted in 1868 so it can't be claimed that the Afroyim v Rusk ruling only takes effect in 1967.

The issue now is one of intent. Did your relative intend to give up US citizenship when she became a Canadian citizen? Also, even if she intended to give it up (given the information she was given at the time), would she have felt the same way if she had known that the regulations imposed upon her were unconstitutional? Simply naturalizing as a Canadian citizen is not enough to lose US citizenship. It's certainly not enough today and, even if people thought it was enough back then, subsequent rulings and law changes (in addition to Afroyim v Rusk) have disproved that belief.

As I said before, unless she formally renounced US citizenship, this is a grey area. The fact is that the US could still consider her to be a USC. She can continue her life and ignore that if she wants to. She can claim that she's not a USC - or she could claim that she is. If this ever issue arises in the future, I think she can claim either scenario. However, it potentially places a question mark over the status of her children. I would suggest that they get something in writing from her that would stand up to legal scrutiny and which clearly communicates her position on her being or not being a USC.

WEBlue

This jibes with what my relative says about those days in the 1950s and 1960s when she married her Canadian and moved to Canada to live with him. She says she knew another of American wife who also "gave up" her US citizenship--I think they had a conversation about it years later.

The idea that wives would move to the country of their new husbands and take up THAT citizenship seemed common in those days. I know an American woman who moved to the UK and did the same, "giving up" her USC for a British passport.

Are you sure dual citizenship was really common and well understood in the 1950s & 60s though? That's a long time ago, and lots of things were different. Wives didn't have the rights that they have now, and maybe it was (as my relative says) just what happened to many wives in the post WWII era...until later when--through the court cases you mention--things really DID change and the principle of dual citizenship became more common and well understood...

dbd33

I suggested, some good number of posts ago, that since she can't know want her successors might want her to have thought, she prepare and have notarised, two letters, one claiming intent, one lack of intent. I've since reconsidered, if no one ever wants to be American based on her status then nothing need be done. It's only if someone, one day, wants to be American that her intent matters; accordingly, she needs only one letter "I never intended to relinquish citizenship...". Create it, tell the kids, file it, forget the matter for the time being.

MarylandNed

We all know what people thought and were told back then i.e. that US citizenship was lost if a USC naturalized in a foreign country. No-one is arguing that point.

The issue is that the Supreme Court ruled in Afroyim v Rusk (1967) that US citizenship was a constitutional right protected by the citizenship clause of the 14th Amendment (which was adopted in 1868). The Supreme Court basically said in 1967 that the US govt CANNOT simply legislate away something that is protected by the constitution. Subsequently, US restrictions on dual (or multiple) citizenships completely fell apart.

Your relative's US citizenship was therefore protected by the 14th Amendment and no-one had any right to legislate it away from her regardless of what she thought or was told at the time. What she and others understood to be true before 1967, was clearly without any legal foundation. So unless she formally renounced her US citizenship back then, the US could still consider her to be a USC.

She can claim to be or not to be a USC. She can claim to be one for the reasons I stated above. She can claim not to be one by saying that it was her intent to give up US citizenship when she became Canadian and that handing over her US passport was proof of that intent (and that she maintains this position regardless of whether the regulations in place at the time were later ruled to be unconstitutional).

MarylandNed

The problem is that one of the kids could claim US citizenship through her at any time by simply applying for a US passport. The letter you mentioned might not be needed. The mother's US birth cert and evidence of her residency in the US etc could be enough.

I would suggest that she write one letter in which she declares the situation as she sees it i.e. she intended to relinquish her US citizenship. Trying to have it both ways at the same time can be messy. Any of the kids who want to claim US citizenship could go ahead and take their chances. Any who don't and are later accused of being USCs, can simply deny it and produce the mother's "I intended to relinquish..." letter as proof.

dbd33

Is there really a danger of being accused, out of the blue, of being a US citizen? Maybe if they try to play football and have two left feet, maybe if they willingly attend an Alan Jackson concert, otherwise I think it quite improbable. All she can do here is to make the most options possible open, that's best done by saying she didn't intend to relinquish.

MarylandNed

Yeah I think we're really splitting hairs here. Whether a letter is even necessary at all is open to debate. What it should contain is also open to debate. As you mentioned before, a case could be made for writing 2 letters so that both scenarios are covered (although that could get messy).

I think the letter should state that she did intend to relinquish US citizenship because it sounds like that is the scenario she strongly believes to be true and it is also the scenario that all of the kids seem to want to be true. So it would seem prudent to have something in writing to further strengthen that position should it ever be needed.

The chances of any of the kids being accused of being US citizens may or may not be low. We can guess low but who really knows how the US and Canada might go about trying to identify USCs for FATCA? The mother is carrying a Canadian passport and it indicates that she was born in the US. Presumably the kids also have Canadian passport records that include details of the mother. It wouldn't take much effort to write a database query to come up with a list of names that includes all of them.

dbd33

This is a legal matter, truth has no place here.

WEBlue

I thought it was a matter of "intent". Intent pre-supposes some kind of truth for the intender....

I have no idea what to recommend to my relative, and I think she's not interested any more in anyone's recommendations on this matter. She's very much done with thinking about her citizenship; she's Canadian and that's all.

The last real conversation I had about this was with her and one of her daughters around 20 years ago. I think the daughter had talked to someone with immigration knowledge who had thrown doubt on whether the mother HAD actually 'given up' her US citizenship in the late 1950s or early 1960s.

The mother was frankly annoyed by the whole conversation. She didn't want to change her (Canadian only) reality at that point, & I'm fairly sure she hasn't changed her mind. Right now she's not well (multiple health issues), & I doubt anyone in the family wants to broach the subject of her writing a letter stating her original intent over 50 years ago....

MarylandNed

Ok - but you're the one who raised the issue in this forum. If you think she has no interest in this then why even raise it? From the information you have given, no-one here can tell you for certain that she and her children are (or are not) USCs. If she passes away without making her intention crystal clear and documenting it, there's a chance (probability unknown) that she did not lose her US citizenship and that her children are therefore also USCs. They can all chose to bury their heads in the sand and ignore that if they want to. No-one can know for certain whether there will be any consequences in the future or what those consequences might possibly be. If they chose to ignore the issue, in all likelihood they can continue to live in ignorant bliss.