Renouncing US Citizenship 101

Rejected Foreign Affairs Secretary-nominee Perfecto Yasay. INQUIRER FILE

Lawyer Perfecto Yasay’s nomination as Secretary of Department of Foreign Affairs was recently rejected by the Commission on Appointments on the issue of his U.S. citizenship. Why was his citizenship not revoked contrary to his testimony?

There are basically two methods of losing U.S. citizenship. The first is through voluntary act through a process called expatriation or renunciation. The other is through involuntary act of the naturalized citizen through “denaturalization.”

Voluntary Loss of Citizenship: Expatriation

A U.S.-born citizen or a naturalized U.S. citizen may voluntarily relinquish citizenship by performing certain acts. The following are indication of voluntary relinquishment if made with the intention of relinquishing citizenship: (1) obtaining naturalization in or taking an oath of allegiance to a foreign state after age 18; (2) entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S.; (3) accepting, serving in or performing duties of any office, post or employment of a foreign government; (4) making a formal renunciation of U.S. citizenship before a diplomatic or consular officer on a Department of State form; (5) making a formal written renunciation in the United States but only when the U.S is in a state of war.

A certificate approved by the Secretary of State shall constitute a final administrative determination of loss of nationality or citizenship.

Involuntary Loss of Citizenship

Denaturalization is the process of losing citizenship involuntarily through a judicial proceedings and it applies only to those who received citizenship through naturalization. The proceedings may only be initiated by a U.S. Attorney in an action in a state or federal court competent to hear naturalization matters under INA Section 310. The basis for revocation may be the illegal procurement of citizenship or concealment of a material fact or willful misrepresentation.

The naturalized citizen may not file his own denaturalization but may provide information that will justify the revocation of his naturalization.

Presumptive Fraud

One of the grounds for revocation through denaturalization is fraud. Historically, prior to 1994, there were rules on presumptive fraud that may be imputed to the naturalized U.S. citizen as grounds for revocation.

A naturalized U.S. citizen who resumed a residence in a the country of previous citizenship within 5 years of naturalization was presumed to have obtained his U.S. citizenship through fraud. The period was reduced to one year in 1986 and eventually this presumptive fraud was eliminated in 1994 through the enactment of the Immigration and Nationality Technical Corrections Act of 1994 (INTCA Public Law 103-416).

The Yasay Case

As a naturalized U.S. citizen, lawyer Yasay went through the voluntary relinquishment of his U.S. citizenship in June 2016. The Certificate of Loss of Nationality issued by the U.S. Department of State is the document that indicates the official loss of U.S. citizenship.

In 1993, prior to the immigration law being amended, he attempted to submit information through his Affidavit that he resumed residence to the Philippines within one year of becoming a naturalized U.S. citizen.

This is presumptive fraud that may result in revocation based on the law existing at that time. Unfortunately, no proof was submitted that the process of denaturalization was ever initiated by the U.S. Attorney General and, therefore, there was no loss of U.S. citizenship.

Yasay could have followed through the process with the U.S. Attorney General and not simply submit his affidavit. Given that he was not denaturalized in 1993, his official loss of U.S. citizenship only occurred in June 2016 when the U.S. Department of State approved his Certificate of Loss of Nationality.

For future politicians who want to serve in the Philippine government and but are U.S. citizens, knowing the exact procedure for giving up U.S. citizenship will preclude any legal barriers to entering the public office. Taking the stand that one never had U.S. citizenship because of one’s unilateral statement of “disqualification” shows either ignorance of the process, or is simply a convenient lie.

((Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at [email protected], facebook.com/tancincolaw, www.tancinco.com or 1 888 930 0808)