Dual Citizenship in the United States: The Consequences of Reluctant Acceptance Without Formal Recognition
As more countries relax or remove restrictions on dual citizenship, the United States should formally recognize it.
By: Nataliia Gillespie, STAFF MEMBER
With more countries relaxing, removing, or considering removal of restrictions on dual citizenship, the global trend towards a more tolerant acceptance of such statuses is a long overdue response to the new reality of increased international migration. However, in the United States, where dual citizenship is neither expressly prohibited nor formally recognized, the interpretation and enforcement of related laws and rules reveals some troubling inconsistencies.
First, for purposes of federal diversity jurisdiction, a dual citizen of the United States and a foreign state is likely to only be considered a citizen of the United States. In Sadat v. Mertes, the Seventh Circuit ruled that the district court lacked subject matter jurisdiction over a diversity action where the plaintiff was a dual citizen of the United States and Egypt. The court agreed with the district court in holding that, because the plaintiff was domiciled abroad at the time the suit was commenced, he was not a citizen of any state within the meaning of 28 U.S.C. § 1332(a)(1).
Responding to the plaintiff’s alternative argument for establishing federal jurisdiction pursuant to 28 U.S.C. § 1332(a)(2) based on his status as a citizen of a foreign state, the court held that, for purposes of diversity jurisdiction, his “dominant nationality” was not Egyptian, but American. The court found significant the oath of allegiance the plaintiff would swear to become a naturalized citizen, in which he renounces loyalties to foreign states. Additionally, his actions of registering with the U.S. Embassy while living abroad and voting absentee in presidential elections further confirmed his intent to remain a U.S. citizen.
The language of the Seventh Circuit’s opinion leaves open the possibility of a ruling that the U.S. nationality of an American citizen is not “dominant” for purposes of diversity jurisdiction. Such a conclusion, however, would create a conflict based on the lack of formal recognition of dual citizenship by the United States, or even the official naturalization certificate that a plaintiff would obtain upon becoming a U.S. citizen wherein it refers to their nationality as “former nationality.”
The oath of allegiance and the promise to renounce allegiance to foreign states by those who become naturalized citizens on its face clashes with retention of previous citizenships. Some countries, such as Canada, do not recognize the renunciation effects of the oath of allegiance, allowing its citizens to remain Canadian even after taking the oath. Others, such as Germany, make the voluntary act of obtaining a foreign citizenship result in an automatic loss of the German citizenship. Yet another approach, followed by Ukraine, makes acquisition of a foreign citizenship grounds for revocation of Ukrainian citizenship, although the mechanism for that is neither automatic nor well-established. The United States does not require its naturalized citizens to formally terminate the citizenships they held prior to naturalization, nor does it threaten termination of citizenship or other punishment to those who vote in foreign elections, declare their allegiance to a foreign state, or to even accept non-policy level employment with a foreign government.
Another aspect of the U.S. law that affects dual citizenship creates a potentially awkward distinction between recognition of a foreign citizenship and recognition/honoring of a foreign passport. U.S. citizens are required by law to use a valid U.S. passport when entering the United States. The provision does not contain an exception for dual citizens, and the U.S. Department of State further confirms that U.S. citizens who are dual nationals must use their U.S. passport to enter the country. While this requirement can be easily enforced when the dual citizen’s other passport does not grant him a visa free entry into the United States (he or she would not be able to obtain a U.S. visa because U.S. citizens may not obtain U.S. visas), enforcing the requirement with regard to dual nationals whose other passport grants them a visa free entry in the United States may prove much harder. For example, a dual citizen of the United States and Canada, entering the United States by land need only present his or her Canadian passport, Enhanced Driver’s License, or Trusted Traveler Program card (NEXUS, SENTRI or FAST) to be granted entry. If the border officer does not discover that the person entering the United States on a Canadian passport is also an American citizen and grants the traveller entry, the situation will result in the recognition and honoring of the traveler’s Canadian passport in the absence of the formal recognition of his or her citizenship.
Canada’s conservative leader, Andrew Scheer, who recently confirmed his dual Canadian and United States citizenship, has been questioned but not yet explained how he was able to travel to the United States without a U.S. passport. Scheer stated that the U.S. citizenship passed to him through his American-born father, and that his parents applied for the U.S. passport on his behalf when he was a child, but he has not since renewed his passport as an adult. While multiple explanations may exist as to how Scheer entered the United States without a valid U.S. passport, entering the United States on a Canadian passport appears as an obvious one. The difficulty of enforcing the entrance on the U.S. passport requirement faces not only the technical aspect of finding effective methods to identify U.S. citizens, but also comes against a potential roadblock in that such enforcement may “circumvent[ ] rights that the United States is obliged to grant under international treaties, providing that a person who uses a certain passport to enter the country should be treated as a national of that country for purposes of consular protection during the period of his entry.”
With the very relaxed enforcement of restrictions on dual citizenship through the oath of allegiance, the threat of creating an odd distinction between recognition of a citizenship and a passport, and the judicially recognized concept of “dominant nationality,” a formal recognition of dual citizenship by the United States would bring much-needed clarity to the issue.
Nataliia Gillespie is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law.