In this article, we will examine the ways in which a person can lose his or her nationality in section 349 of the INA.
Loss of Citizenship under Section 349 of the INA
There are two distinct sections of the INA covering the loss of U.S. nationally and citizenship. First, section 340 of the INA sets forth the rules procedures for the denaturalization of a naturalized U.S. citizen. Section 340 only applies to naturalized citizens, and not to persons who acquired U.S. citizenship without undergoing naturalization. Section 349 lists ways in which a U.S. national may voluntarily lose his or her U.S. nationality. In this article, we will examine the ways in which a person can lose his or her nationality in section 349 of the INA.
Understanding U.S. "Nationality" and U.S. "Citizenship"
Section 349 explicitly applies to the loss of U.S. "nationality" rather than the loss of U.S. "citizenship." Although these are two distinct concepts, for nearly all practical purposes, nationality and citizenship can be thought of as interchangeable. This is because all U.S. citizens are also U.S. nationals. Furthermore, there is no way under current law for a person to procure U.S. nationality through the naturalization process without also becoming a U.S. citizen. There are a very limited number of noncitizen nationals, with the vast majority today being American Samoan. The provisions that we will discuss in this article also cover the loss of U.S. nationality for noncitizen nationals. However, because the distinction between U.S. national and U.S. citizen is not significant in the vast majority of cases, we will use the terms interchangeably in this article.
Overview of Section 349
Section 349(a) of the INA lists various actions that a U.S. citizen may take to lose his or her citizenship. Section 349(a) applies to citizens from birth and naturalized citizens. In order for an action to cause the loss of citizenship under section 349(a), the action must be performed "voluntarily ... with the intention of relinquishing" U.S. citizenship. Accordingly, if it is demonstrated that the action is either non-voluntary and/or not undertaken with the intention of relinquishing U.S. citizenship, the action will not cause the loss of citizenship.
Voluntary Actions that Can Cause Loss of U.S. Citizenship
If undertaken voluntarily and with the intention of relinquishing U.S. citizenship, the following actions in section 349(a) will cause the loss of U.S. citizenship:
- If a person, over the age of eighteen, obtains naturalization in a foreign state based upon his or her own application filed with a duly authorized agent; or
- If a person, over the age of eighteen, takes an oath or makes an affirmation or other formal declaration of allegiance to a foreign state; or
- If a person enters in or serves in the armed forces of a foreign state if: (1) such armed forces are engaged in hostilities against the United States, or (2) if the person is serving as a commissioned or noncommissioned officer; or
- If a person, over the age of eighteen, accepts (or serves in or performs the duties of) any office, post, or employment under foreign state after either acquiring the nationality of the foreign state, or by making an oath, affirmation, or declaration of allegiance because such post requires it; or
- If the person makes a formal renunciation of nationality before a U.S. diplomatic or consular officer in a foreign state; or
- If the person makes a formal written renunciation of nationality in the United States when the United States is in a state of war; or
- If the person commits any act of treason against the United States, attempts to overthrow the U.S. government by force, or bears arms against the United States (by violating or conspiring to violate 18 U.S.C. 2383 or by willfully performing any act in violation of 18 U.S.C. 2385 or 18 U.S.C. 2384).
(Note: All mentions of "foreign state" also include "or a political subdivision thereof").
Burden of Proof
Under section 349(b) of the INA, the burden of proof lies with "the person or party claiming that such loss occurred." Essentially, in adjudication, the burden will lie with whichever party is claiming that U.S. citizenship was lost. The standard for meeting the burden is by the "preponderance (weight) of the evidence." Section 349(b) explains that if a person commits an action found in section 349(a), there is a rebuttable presumption that the action was done voluntarily. This means that although it is presumed that if a U.S. citizen commits any action in 349(a) voluntarily, he or she may present evidence to attempt to rebut the presumption by the weight of the evidence.
However, the Department of State has taken the position in its regulations (22 C.F.R. 50.40(a)) that there is a presumption against expatriation in the following cases:
- If the person procures naturalization in a foreign country;
- If the person takes a routine oath of allegiance; or
- If the person accepts a non-policy level position with a foreign government.
In addition to the three cases in 22 C.F.R. 50.40(a), the Department of State has a presumption against expatriation where a person serves in the armed forces of a foreign state not engaged in hostilities against the United States.
In the four above cases in 22 C.F.R. 50.40(a), the person is not required to submit evidence that he or she intended to retain U.S. citizenship. Accordingly, if the person undertook the act with the intention of relinquishing U.S. citizenship, he or she must affirmatively state that intention to the Department of State.
In all other cases, the Department of State will assess the evidence to determine whether there is evidence that the person potentially undertook an action in section 349(a) with the intent of relinquishing U.S. citizenship.
In general, a person may not lose his or her U.S. citizenship under section 349(a) while present in the United States or in an outlying possession of the United States. The only exceptions to this rule are if the person renounces his or her U.S. citizenship in the United States during a time of war, or if the person is convicted of treason, attempting to overthrow the government, or bearing arms against the United States. In other cases, a person may lose his or her citizenship for taking an action described in section 349(a) while in the United States, and then taking up residence outside of the United States. The Department of State is responsible for making section 349(a) determinations overseas.
Under section 349(b), a person may, within six months of turning eighteen years of age, assert his or her claim to U.S. citizenship and not be deemed to have lost citizenship on due to foreign military service with the intent to relinquish citizenship (section 349(a)(3)(A)-(B)) or for having renounced citizenship before a consular officer (section 349(a)(5)).
If naturalization is found to have been lost, the person will be provided with a Certificate of Loss of Nationality.
A person may seek administrative and judicial review to rebut the claim that he or she committed an expatriating act under section 349(a) of the INA.
If a person believes that he or she did not commit an expatriating act under section 349(a), he or she should consult with an experienced immigration attorney for an assessment of his or her situation and whether there exists a path for successfully rebutting the government's claims. It is important to act expeditiously given the seriousness of losing citizenship.
If a person seeks to relinquish his or her U.S. citizenship, he or she is well advised to consult with an experienced immigration attorney for guidance in going through the proper procedures.
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