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Suppose a US citizen has the option to get naturalized in a foreign country but would have to take an oath that explicitly states that the US citizen plans to relinquish previous nationalities. The US citizen would rather not lose US citizenship.

Here is the code: https://www.law.cornell.edu/uscode/text/8/1481 (a)1,2 seem on point. But is it actually enforced?

UPDATE Thanks. It seems that the code is applied in such a way that it facilitates voluntarily relinquishment of citizenship rather than acting as some kind of proscription of actions.

In this case the oath I would have to take clearly states that I plan to relinquish my former citizenship. I wonder if that would constitute a "preponderance of evidence." On the other hand, there is evidence that I do not wish to relinquish it, such as that I want to pass it to my child born abroad. Suppose I can say I made the oath knowing that I had no intention of honoring it and since it was made to a foreign state, the US would not have any standing to question it.

Practically speaking, not sure how the US would even be made aware of my second citizenship and the oath taken or why the US would care.

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  • If you took an oath to the country you are naturalizing in that you plan to relinquish your other citizenships, and you don't, isn't that a breach of your oath to that country? Couldn't they invalidate your naturalization because of it?
    – user102008
    Aug 21, 2023 at 18:34
  • @user102008 perhaps the other country is like the US, which requires naturalizing citizens to take such an oath but does not hold them to it.
    – phoog
    Aug 22, 2023 at 5:31
  • @phoog: The US oath doesn't say you did renounce or promise to renounce citizenship. It says you (in the present) renounce "allegiance and fidelity" (which, unlike citizenship, does not require any action to renounce).
    – user102008
    Aug 22, 2023 at 7:12
  • @user102008 yes, technically, but there is no time constraint so I could just say I haven't gotten around to it. But don't think they even enforce/check-up on it. Others in this country hold dual citizenship without problems.
    – LittlePine
    Aug 22, 2023 at 16:16
  • @LittlePine: "Others in this country hold dual citizenship without problems." But they could have gotten dual citizenship in other ways. For example, they might have been born a citizen of that country, and then acquired another citizenship later, so they wouldn't have been subject to rules of naturalization in the first country since they didn't naturalize there. Or, they might have been born with multiple citizenships. Do you specifically know that people who naturalized in that country didn't renounce prior citizenships with no problems?
    – user102008
    Aug 22, 2023 at 17:23

4 Answers 4

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But is it actually enforced?

No. The State Department presumes that anyone naturalizing in a foreign country or swearing an oath does so without the requisite intent to relinquish their US citizenship. Anyone seeking to assert that someone had lost their US citizenship by naturalizing elsewhere or swearing an oath would have to prove by a preponderance of the evidence that the person had such intention.

See https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/Advice-about-Possible-Loss-of-US-Nationality-Dual-Nationality.html

Administrative Presumption of Intent to Retain U.S. Citizenship

As already noted, the actions listed above will result in the loss of U.S. nationality if performed voluntarily and with the intention of relinquishing U.S. nationality. The Department has adopted an administrative presumption that U.S. nationals intend to retain United States nationality when they: obtain naturalization in a foreign state (INA 349 (a)(1)); declare their allegiance to a foreign state (INA 349(a)(2)); serve as an officer in the armed forces of a foreign state not engaged in hostilities with the United States (INA 349(a)(3)); or accept non-policy level employment with a foreign government (INA 349(a)(4)). In accordance with the administrative presumption, when an individual commits one of the foregoing acts, that person will retain U.S. nationality unless he or she affirmatively, explicitly, and unequivocally asserts an intention to relinquish such nationality.

Disposition of Cases when Administrative Presumption is Applicable

When, as the result of an individual's inquiry or an individual's application for a passport it comes to the attention of a U.S. consular officer that a U.S. national has performed an act made potentially expatriating by INA Sections 349(a)(1), 349(a)(2), 349(a)(3) or 349(a)(4) as described above, the consular officer will simply ask the applicant if he/she intended to relinquish U.S. nationality when performing the act. If the answer is no, the consular officer will record that it was not the person's intent to relinquish U.S. nationality and, consequently, find that the person has retained U.S. nationality.

Persons Who Wish to Relinquish U.S. Nationality

If the answer to the question regarding intent to relinquish nationality is yes, the person concerned will be asked to complete a questionnaire (DS-4079) to confirm his or her intent toward U.S. nationality. When the questionnaire is completed and the voluntary relinquishment statement is signed before the consular officer, and the evidence supports the stated intent, the consular officer will proceed to prepare a Certificate of Loss of Nationality of the United States. That is, if the person’s statements and conduct, particularly action contemporaneous with and subsequent to the commission of the expatriating act, are consistent with an intent to relinquish U.S. citizenship at the time of the commission of the act, the certificate will be prepared and forwarded to the Department of State for review and final decision.

In sum, an individual who has performed a potentially expatriating act under INA Section 349(a)(1) through (4) will lose U.S. nationality only by credibly affirming under oath in writing before a U.S. consular officer that the act was performed voluntarily with an intent to relinquish U.S. nationality. The burden of proof rests upon the party claiming loss and by preponderance of the evidence. A U.S. national also has the option to formally renounce U.S. nationality abroad in accordance with INA Section 349 (a) (5).

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As other answers have noted, since 1990, the Department of State has had an administrative presumption that applies to some (but not all) of the potentially expatriating acts. It applies to 8 USC 1481(a)(1), (2), (3), and (4), but not (5), (6), (7). It presumes that someone who performs these acts do not intend to relinquish citizenship unless they affirmatively assert the intention.

You might also wonder what happens without the presumption (e.g. before 1990 when the presumption was established, or for the potentially expatriating acts that the presumption does not apply to). The US Supreme Court decision in Afroyim v. Rusk (1967) ruled that it was unconstitutional for a US citizen who was born or naturalized in the US (within the meaning of the Citizenship Clause of the 14th amendment) to lose US citizenship under any circumstances unless they intended to relinquish it. (Except for fraud in naturalization which is not considered loss of citizenship since the person is considered to have never been a citizen.)

The US Supreme Court decision in Vance v. Terrazas (1980) further reinforced the Afroyim decision, ruling that the intention to relinquish citizenship must be proven separately from the performance of the potentially expatriating act, and the act cannot be taken as conclusive evidence of the intent. At the time of the Terrazas decision, the statute did not require intention to relinquish (this was added in 1986), but it did contain the provision that the claim must be proven by "a preponderance of the evidence". The Supreme Court in the Terrazas decision ruled that this means that the intention to relinquish must be proven by "a preponderance of the evidence". (They also ruled that "a preponderance of the evidence" is an acceptable standard, and that it did not need to be "clear an convincing evidence".)

Held:

  1. In establishing loss of citizenship, the Government must prove an intent to surrender United States citizenship, not just the voluntary commission of an expatriating act such as swearing allegiance to a foreign nation. Congress does not have any general power to take away an American citizen's citizenship without his "assent," which means an intent to relinquish citizenship, whether the intent is expressed in words or is found as a fair inference from his conduct. The expatriating acts specified in § 349(a) cannot be treated as conclusive evidence of the indispensable voluntary assent of the citizen. The trier of fact must, in the end, conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship. Cf. Afroyim v. Rusk, 387 U. S. 253. Pp. 444 U. S. 258-263.

[...]

  1. Nor is the presumption of voluntariness provided in § 349(c) constitutionally infirm. While the statute provides that any of the statutory expatriating acts, if proved, is presumed to have been committed voluntarily, it does not also direct a presumption that the act has been performed with the intent to relinquish United States citizenship, which matter remains the burden of the party claiming expatriation to prove by a preponderance of the evidence. [...]

The case of Terrazas might also have parallels to your question. He had both US and Mexican citizenships at birth, but in order to obtain a certificate of Mexican nationality, he had to sign a statement renouncing US citizenship. He also made conflicting statements to US consular officials regarding his intention to relinquish in the years afterwards. The US decided that he lost US citizenship, and it went to court. After the Supreme Court decision, they remanded the case back to the lower courts to determine whether he had the intention to relinquish by "a preponderance of the evidence", and the lower courts ruled that he had, and that he lost US citizenship. So making a statement to a foreign country to renounce US citizenship (although in Terrazas's case it was to obtain a certificate rather than to obtain citizenship itself) did cause loss of US citizenship under that standard for Terrazas. But it was not based on the fact of the statement alone, but based on "a preponderance of the evidence" in his situation.

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There is no evidence regarding actual legal enforcement. The statutory bar has raised over the years, owing to various Supreme Court rulings, whereby a person must voluntarily and intentionally renounce their US citizenship. The act of becoming a citizen of another country is a possible trigger action, but you can dispute the presumed intention (the argument can be simple: "I was required by that country to be a citizen in order to take the job"). It is much harder to dispute an official sworn renunciation of citizenship carried out in the US consulate of a foreign country, but still one could prove that one was forced to renounce your US citizenship, meaning that it was not voluntary and therefore 8 USC 1481 does not apply.

Tina Turner and Boris Johnson renounced their US citizenships, but the question of enforcement has not arisen because they have not petitioned to undo the act. Since the law is stated in terms of a voluntary act with an intent, proving that the act was involuntary or lacked the requisite intent would simply result in the conclusion that the person had not renounced their citizenship under the law, therefore the question of enforcement is irrelevant. Enforcement would be when a person voluntarily and with the requisite intent performs the act, then later regrets the act but does not dispute the nature of the earlier renunciation. If that is true, we may presume that the government would say that simply "having later regrets" (or, "realizing that it was a mistake") cannot undo a renunciation. We would know that this position is enforced if the party sues to get citizenship restored, and loses in court. There is no relevant court case.

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Yes

Before 1990, the State Department took the adoption of another country’s citizenship as a renunciation of US citizenship.

However, in 1990 the State Department adopted the administrative presumption that "when a U.S. citizen obtains naturalization in a foreign state, subscribes to routine declarations of allegiance to a foreign state, or accepts non-policy level employment with a foreign state", he or she intends to retain U.S. citizenship, overriding the earlier presumption that such acts indicated intent to relinquish U.S. citizenship.

The IRS publishes a quarterly list in the Federal Register of everyone who has chosen to expatriate. This Wikipedia page lists prominent ex-citizens of the USA.

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  • 1
    "Before 1990, the State Department took the adoption of another country’s citizenship as a renunciation of US citizenship." That quote does not say anything about what the State Department did before 1990. Lack of a presumption that the person does not intend to relinquish citizenship, does not imply that there was a presumption for the opposite, i.e. that the person does intend to relinquish citizenship. A presumption that the act implies the person intended to relinquish citizenship would contradict both the statute and Supreme Court rulings.
    – user102008
    Aug 21, 2023 at 16:18
  • @user102008 a presumption of intent to lose US citizenship would not contradict the act but it would put the state department in the position of defending the presumption against citizens who seek to rebut it, which, given the court rulings, might be as simple as making a contrary claim about their state of mind.
    – phoog
    Aug 21, 2023 at 16:37
  • @phoog: The statute says that the claim, including intention, must be proven by "a preponderance of the evidence". A presumption that the act implied intention would not meet that standard.
    – user102008
    Aug 21, 2023 at 16:39

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