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Dual Citizenship Under U.S. Immigration and Nationality Law

By LaNicoya- (http://www.flickr.com/photos/lanicoya_/1721626888/) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsU.S. immigration law does not provide a specific definition of “citizen.” The Fourteenth Amendment to the U.S. Constitution identifies as a citizen anyone born in the U.S., except for children of foreign diplomats, and anyone naturalized after their birth. Since this is still not a distinct definition, U.S. citizenship is perhaps better described as a set of rights and duties, including the duty of loyalty to this country. Some people who become naturalized U.S. citizens retain citizenship in their country of origin. The U.S. Department of State (DOS) does not encourage dual citizenship, but the Supreme Court has held that it is permissible despite language in federal immigration statutes suggesting otherwise. Immigrants who wish to become naturalized U.S. citizens should consider the effect it might have on their relationship to their country of origin, and their future relationship to this country.

The Immigration and Nationality Act (INA) defines a “national” as “a person owing permanent allegiance to a state.” 8 U.S.C. § 1101(a)(21). It defines a “national of the United States” as someone who meets the previous definition with regard to the U.S., or who is a U.S. citizen. Id. at § 1101(a)(22). Congress has modified the laws regarding citizenship in, or allegiance to, more than one country on numerous occasions. Currently, the INA states that a person seeking to become a naturalized U.S. citizen must take an “oath of renunciation and allegiance,” which includes a statement that they “renounce and abjure absolutely and entirely all allegiance and fidelity” to any other country. Id. at § 1448(a)(3).

While a renunciation of allegiance to any other country is a requirement for naturalization, the INA does not provide a clear means of enforcing this oath. It states that both native-born and naturalized citizens can lose their U.S. nationality by “voluntarily…obtaining naturalization in a foreign state upon his own application,” serving in the military of a country “engaged in hostilities against the United States,” and other voluntary acts. Id. at §§ 1481(a)(1), (3). This does not, however, address most situations in which a naturalized citizen continues to avail themselves of citizenship in another country.

A pair of decisions from 1958 established a general rule that voluntary action is required to lose citizenship. In Nishikawa v. Dulles, 356 U.S. 129 (1958), the court held that a man born in the U.S. to Japanese parents could not be stripped of his citizenship for serving in the Japanese military during World War II because he was conscripted, and therefore he did not serve voluntarily.

On the same day, the court held that a man born in Texas, but who had lived most of his life believing he was born in Mexico, had lost his U.S. citizenship by voting in a Mexican election. Perez v. Brownell, 356 U.S. 44 (1958). While the act of voting was voluntary, nothing the person did evidenced an intent to relinquish his U.S. citizenship. The court reversed Perez nine years later, ruling that a person can only lose their citizenship in the U.S. by voluntarily relinquishing it. Afroyim v. Rusk, 387 U.S. 253 (1967).

Family immigration attorney Samuel C. Berger represents immigrants and family members or employers of prospective immigrants in the New York City and Northern New Jersey areas. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation with a knowledgeable and experienced immigration advocate.

More Blog Posts:

Citizens, Nationals, and Immigrants in the United States, New York & New Jersey Immigration Lawyer Blog, March 24, 2016

United States Citizenship, Part 2: Lawsuit Looks at Meaning of “Citizenship” for People Born in One U.S. Territory, New York & New Jersey Immigration Lawyer Blog, March 25, 2015

United States Citizenship, Part 1: More Complicated than It Appears, New York & New Jersey Immigration Lawyer Blog, March 11, 2015

Photo credit: LaNicoya- [CC BY 2.0], via Wikimedia Commons.