# "Transmission" of US citizenship



## iota2014 (Jul 30, 2015)

A US Supreme Court ruling has just moved the "transmitted citizenship" goalposts for those born outside the US to an unwed USC mother.

The court has ruled that US citizenship cannot be "transmitted" from mother to child unless the mother lived in the US "for a total of 10 years, five of them after age 14" - same as for unwed USC fathers.

So for the time being - before another lawsuit springs up and changes the rules again - might there be an opportunity, for some persons born outside the US to an unwed USC mother, to establish non-USness without having to buy a CLN? 

Who knows - not I.

https://www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf


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## iota2014 (Jul 30, 2015)

CNN says (SCOTUS strikes down citizenship law - CNNPolitics.com



> Under the Immigration and Nationality act of 1952 as originally written, a child born outside of the United States to an unwed citizen father and a non-citizen mother has citizenship at birth only if the father was present in the United States for a period totaling at least 10 years, with at least five of those years occurring after the age of 14. But the statute has since been amended to decrease the time requirement for those born since November 14, 1986, to 5 years in the United States, at least two of which were after age of 14. A child born abroad to an unwed citizen mother has citizenship if the mother lived in the United States for at least one year at some point prior to the child's birth.


That sounds as if a person who was born outside the US to an unwed USC father with less than 10 years' US residence, can safely tick "No" to the question _Are you now or have you ever been a US citizen?_

But under the law as amended (i.e. before this SCOTUS decision), a person who was born outside the US to an unwed USC mother would have to be able to prove that their mother spent no more than 364 sleeps in the USA, because (according to DoJ as quoted by CNN) "mothers and fathers are not typically similarly situated with respect to their legal status concerning the child at the moment of birth."

That seems to me to suggest that US citizenship resides in the egg of a female and the sperm of a male, therefore a Y-DNA test would be required in order to establish paternity. But it does not in the least explain why a baby does not catch US citizenship from an unwed USC father who has lived in the US for 9 years 364 days, but does catch US citizenship from an unwed mother who has lived in the US for 365 days. And of course it doesn't explain what a wedding has got to do with citizenship.

I really think it's time the US stopped trying to impose these mystical witchy ideas on the innocent newborn children of US citizen parents.


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## celticweb (Mar 26, 2016)

I think the reason mothers need less time could very well be so babies won't be stateless. I think not everywhere in the world automatically grants you citizenship if you were born there. 

So I would imagine if the rules were tight for both mother and father, a baby born abroad to an unwed US mother that did not meet the requirements for the 10 years in the USA and 5 year thing after age 14 or whatever it is, what would happen to that baby in that case if that baby could not automatically get the citizenship of the country that they were born in? Wouldn't that be leaving the child stateless in that case? If the mother was dual, this probably won't happen.

if it's one year for a unwed mother that is only a US citizen, most babies in this situation would then be US citizens.

Maybe I am missing something somewhere.


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## iota2014 (Jul 30, 2015)

celticweb said:


> I think the reason mothers need less time could very well be so babies won't be stateless. I think not everywhere in the world automatically grants you citizenship if you were born there.
> 
> So I would imagine if the rules were tight for both mother and father, a baby born abroad to an unwed US mother that did not meet the requirements for the 10 years in the USA and 5 year thing after age 14 or whatever it is, what would happen to that baby in that case if that baby could not automatically get the citizenship of the country that they were born in? Wouldn't that be leaving the child stateless in that case?


If they were concerned about babies being left stateless, why would they not be concerned about the child of a USC mother married to a USC father, where neither parent lived in America for the requisite number of years since 14?

In any event, it appears that a child born abroad to a USC parent is _assumed_ to be subject to US tax and reporting requirements (don't forget to file that FBAR for your Junior ISA, baby!), regardless of parental time spent in America, until the child is old enough to renounce. And it appears that a child born abroad to a USC parent will not find it easy to accompany its USC parent to America if its passport doesn't match the parent's.

The obvious way to avoid stateless babies would be to allow a USC parent to apply to register the child as a USC on the grounds that the child would otherwise be stateless. IMO.


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## Bevdeforges (Nov 16, 2007)

I have seen a couple of reports of this latest SC ruling and it appears iota2014 is right. There was a discrepancy between the requirements for transmission of US citizenship for an unmarried parent - 5 years for an unmarried mother, and 10 years for an unmarried father (with the other details about # of years after the age of 14, etc.).

Evidently, for some legalistic reason, the court had to default to the harsher of the two requirements in order to address the inequity between the sexes.

But honestly, the US has no particular concerns about "stateless babies" - that's a UN or EU concern as I understand it. And still, there are countries where it's a genuine possibility. I know of a case here in France just 8 or 10 years ago. But then again, being born in France is no guarantee of having French nationality. It's only the US where a US birthplace is "assumed" to indicate US nationality. 

Think, however, of anyone born in the US to diplomatic parents. They specifically do NOT get US nationality. I have no idea how they indicate this when entering the US on their foreign passport. OTOH, I see no indication that the US (IRS or anyone else) is doing anything to track down "accidental Americans" born overseas to one American parent. Even on entering the US on a foreign passport, I think the explanation would fly with little or no further discussion.
Cheers,
Bev


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## iota2014 (Jul 30, 2015)

Bevdeforges said:


> ...the US has no particular concerns about "stateless babies" - that's a UN or EU concern as I understand it.


 Yes, there's a UN Convention for the Reduction of Statelessness. Not all countries have signed though. The US hasn't. I suppose they would say they don't need to, because a baby born in the US is a USC. Not that everyone's happy about _that_ policy either.



> It's only the US where a US birthplace is "assumed" to indicate US nationality.


 Bank managers everywhere are learning fast, thanks to FATCA. 



> I see no indication that the US (IRS or anyone else) is doing anything to track down "accidental Americans" born overseas to one American parent. Even on entering the US on a foreign passport, I think the explanation would fly with little or no further discussion.


We weren't given any opportunity for discussion when we wanted to take our children to America. We were simply told to register them and get them a US passport or they wouldn't be allowed entry. Not that discussion would have helped, since I'd lived in the US till age 25; but I'm a bit dubious that any baby of a USC would have been given a visa. I'll bet the parents would give in and get the passport long before the Consulate would accept the baby was not a USC.

I agree though that the IRS doesn't appear to try to track down non-filing babies. A Canadian infant got FATCA'ed a couple of years ago (https://www.forbes.com/sites/robert...obama-im-a-baby-not-a-tax-cheat/#156c0dcc23b2), but that would be the bank's PR slip-up, not the IRS.


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## celticweb (Mar 26, 2016)

iota2014 said:


> We weren't given any opportunity for discussion when we wanted to take our children to America. We were simply told to register them and get them a US passport or they wouldn't be allowed entry. Not that discussion would have helped, since I'd lived in the US till age 25;


Back in the old days, very few parents would have argued about getting a US passport for their kids for travel to the US. Maybe argued because of inconvenience of having to go to the trouble of getting one but not because of the reasons we have today. How were we supposed to know what was going to happen? I would not even have believed it could come to this point.

Back in the old days it was considered more opportunities for their children being dual citizens, today it's considered a ball and chain if the dual citizenship involves the USA.

I remember when I had my house warming party for my new house, a colleague at the time was a dual like me, left the USA very young and returned to the UK with UK parents. They hadn't been back to the US since that time and she did not have a US passport. and she told me she fought to get herself a US passport. She did a work study program, and got the passport. and she was telling me with such glee how she fought for it. This was back in the 90s. No one was going out of their way back in the old days not to be US citizens. I doubt she will be fighting for it today. 

Now of course people will fight not to be one.


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## iota2014 (Jul 30, 2015)

True I didn't argue - because I've known from age 12 there is no point arguing with the US Government. But I was mildly dismayed to learn that my children couldn't enter the US as citizens of the country of their birth. 

On the other hand, as you say, once I learned that the children were entitled to US citizenship I did think there might be opportunities for them, and in any case, not knowing of the tax obligations, I wouldn't have felt justified in making the decision for them.

Fortunately, being born here, they have no US indicia so they shouldn't have a problem with their banks. But it does cause other problems. Hey ho, never mind.

It still puzzles me why the US makes no effort to explain to non-US-resident US citizens that they're forever subject to US taxation wherever they go. They added a couple of sentences about it to the US passport info pages, in the mid-80s, but I never noticed it. Beyond that mention in the passport - nothing.


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## Bevdeforges (Nov 16, 2007)

It was only in the 1970s that the laws on transmission of citizenship changed - "thanks" to a couple of expat groups here in France. (I happen to have known one of the key fighters/lobbyists for the ability to pass on US citizenship.) See https://aaro.org/advocacy/citizenship to get some idea of how these things changed over time.

I always thought it was a little bit sad how hard those folks fought for the right to pass on citizenship when it now seems all they did was open up a rather nasty can of worms. 
Cheers,
Bev


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## iota2014 (Jul 30, 2015)

It's not really their fault though. A lot of US citizens still do want their children to have the right to US citizenship. It's the way the US tries to control the decision that causes the problem, it seems to me. 

Many countries let those entitled to citizenship decide for themselves whether to claim it, keep it or renounce it, and let them put their choice into effect for a reasonable administration charge. The US assumes from the get-go that the person who wants to claim citizenship or renounce it is probably up to no good. Just as they assume that a US citizen with a "foreign" bank account is probably committing tax crime.

Rebuttable presumptions are what it's all about, for the USA. They presume you're guilty of wrongdoing, and it's up to you to rebut that if you can. If you do succeed, they'll do their best to punish you anyway.


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