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In accordance with 22 C.F.R. §50.51 and 7 Foreign Affairs Manual (FAM) 1230, the Department may in its discretion review determinations of loss of nationality upon request at any time after issuance or denial of the Certificate of Loss of Nationality (CLN) to ensure consistency with governing law.
The grounds upon which the Department will consider reversing a finding of loss of nationality and vacating a CLN are set forth at 22 C.F.R. §50.51(b). The most common scenario is one in which the person requesting review presents substantial new evidence, not previously considered, of either 1) involuntariness; or 2) lack of intent to relinquish U.S. citizenship, at the time of the potentially expatriating act. 22 C.F.R. §50.51(b) (4). Critically, consistent with 7 FAM 1236(d), “all such evidence must relate to the time when the potentially expatriating act was performed and not to a subsequent ‘change of heart.’”
Involuntariness may be demonstrated by evidence of duress, coercion, or undue influence to commit the potentially expatriating act. Lack of the requisite intent to relinquish U.S. citizenship may be demonstrated by evidence that the individual did not have the resolve or intention to lose U.S. citizenship or did not comprehend the consequences of loss, usually due to diminished mental capacity.
Immigration and Nationality Act (INA) § 349(b) states that any person who commits a potentially expatriating act “shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.” Accordingly, where the person seeking review claims lack of voluntariness, the Department examines whether the person has overcome the voluntariness presumption established by statute and demonstrated that it is more likely than not that the act was involuntary.
The grounds upon which the Department will consider reversing a denial of a CLN include the presentation of substantial new evidence, not previously considered, that a potentially expatriating act was voluntary and performed with the intent to relinquish U.S. nationality.
Notwithstanding the general guidance above, each case is reviewed upon its own particular facts and circumstances, and in view of the totality of the evidence in the case.
When the Department reverses a finding of loss of nationality, the person concerned “shall be considered not to have lost U.S. nationality as of the time the [potentially] expatriating act was committed, and the Certificate of Loss of Nationality shall be vacated.” 22 C.F.R. 50.51 (c); 7 FAM 1238. Put another way, vacating the loss of U.S. nationality dates back to the date of the potentially expatriating act. Similarly, when the Department overturns the denial of a CLN and a CLN is issued, expatriation is as of the date of the potentially expatriating act.
A person may initiate a reconsideration of a loss of nationality determination by submitting a request for Administrative Review, with justification and supporting documentation, to a U.S. embassy or consulate or by writing directly to:
Director, Office of Legal Affairs, Overseas Citizen Services
U.S. Department of State
CA/OCS/L, SA-17, 10th Floor
Washington, D.C. 20522-1707
Questions regarding the tax consequences of a loss of U.S. nationality or of a vacating of a CLN must be directed to the Internal Revenue Service.