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A. JUSTIFICATION
1. Section 349(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1481(a), establishes the statutory basis upon which United States citizens may relinquish their U.S. nationality. Choosing to do so is a right recognized by the Supreme Court in its decisions related to loss of nationality, see Afroyim v. Rusk, 387 U.S. 253, 258 (1967). As described in 7 FAM 1211 regarding loss of nationality, “A U.S. citizen by birth or naturalization (8 U.S.C. 1401, 8 U.S.C. 1421) or a U.S. non-citizen national (8 U.S.C. 1408, 8 U.S.C. 1101(29)) will lose U.S. nationality (“expatriate”) her or himself by committing a statutory act of expatriation (as defined in 8 U.S.C. 1481 (Section 349 INA) if the act is performed (1) voluntarily and (2) with the intention of relinquishing U.S. citizenship”. Expatriation can occur only if the party demonstrated a specific subjective intent to relinquish U.S. citizenship.
DS-4079 questionnaire is utilized to make determinations regarding loss of nationality based upon the voluntary performance of a potentially expatriating act with the intent to relinquish U.S. nationality. Persons seeking to document their relinquishment of U.S. nationality complete the questionnaire. Consular Officers may also request that persons who have performed potentially expatriating acts complete it. The DS-4079 serves as primary evidence of the individual’s intent at the time of relinquishment in connection with subsequent requests to reconsider the determination that an individual lost his or her U.S. nationality. Section 349(b) of the INA, 8 U.S.C. 1481(b) places the burden of establishing that loss occurred on the party that claims it did so. The questionnaire is often the determinative piece of evidence in these reconsiderations.
See Attachment 1 for statute descriptions.
2 U.S. citizens complete the questionnaire when they wish to document a loss of U.S. nationality. Moreover, when there is reason to believe that a person may have relinquished his or her U.S. nationality, U.S. consular officers overseas may also request that such a person complete the questionnaire. The person completes the questionnaire and submits it to a consular officer at an overseas U.S. embassy or consular post. The consular officer reviews the questionnaire and sends it to the Directorate of Overseas Citizens Services in Washington. The questionnaire provides information which assist in determining the basis upon which the person acquired U.S. citizenship, whether an expatriating act occurred, and if so, whether the person voluntarily performed the expatriating act with the intent to relinquish his or her U.S. nationality. The questionnaire is used as documentary evidence for determining whether a loss of U.S. nationality has occurred.
The information provided in the questionnaire is critical in establishing whether three elements of loss of nationality are present. Those three elements as stated above are performance of a potentially expatriating act, the voluntary performance of that act, and the requisite specific subjective intent to relinquish U.S. nationality. If the documentary and any other evidence lead to the conclusion that a loss of nationality has occurred, a finding of loss of nationality is approved by Overseas Citizens Services. The questionnaire becomes part of the file associated with an approved Certificate of Loss of Nationality and is available for review if there is any future request to reconsider the finding of loss.
3. The Department intends to incorporate 2D Barcode technology into the on-line DS 4079 form to allow an applicant a quasi-electronic alternative to a completely paper-based approach. The applicant will complete the form on-line, and all the form’s information will be captured in a 2D barcode (on the form) upon printing. The form is then presented with proper documentation to a consular officer who witnesses the signature and scans the data immediately from the 2D barcode into the Department database. Scanned copies of the questionnaire are maintained as part of the file documenting loss of nationality and are retrievable electronically through the Passport Lookout Tracking System (PLOTS). This minimizes the burden of production when requests are received to review a previous finding of loss of nationality.
4. The information in the DS-4079 is not duplicative of information maintained elsewhere or otherwise available.
5. The information collection does not involve or impact small businesses or other small entities.
6. The DS- 4079 Questionnaire facilitates the determination of whether a loss of nationality occurred under Section 349(a) of the INA, 8 U.S.C. 1481(a). Section 349 (b) of the Immigration and Nationality Act places the burden of proof on the person claiming that the loss has occurred. When findings of loss or non-loss of U.S. nationality are challenged, the questionnaire is primary evidence that the Department can use to defend its decisions.
Guidance to Department of State employees on the subject is published in the Foreign Affairs Manual (FAM), 7 FAM 1200.
The elimination of the questionnaire would be a loss of primary evidence and significantly affect the ability of the Department of State to defend its decisions concerning losses or non-losses of U.S. nationality. Because Federal law mandates the circumstances under which loss occurs the Department would not be able to take measures which would reduce the frequency of collection.
7. Not applicable; no such circumstances exist.
8. The Department of State (Bureau of Consular Affairs, Directorate of Overseas Citizens Services, Office of Policy Review and Inter-Agency Liaison) published a 60-day notice for public comment in the Federal Register at Vol. 72, No.45 (Thursday, March 8, 2007). No public comment was made during the 60-day period.
9. No payment or gift is provided to respondents.
10. The form includes a Privacy Act statement as required by 5 USC 552a(e)(3).
11. Not applicable; no such questions asked.
12. Annually, 2,298 U.S. citizens worldwide submit the questionnaire annually to U.S. Consular Officers in order to document loss of U.S. nationality. It is estimated that it takes 15 minutes to complete the DS-4079. The total annual hour burden to complete the questionnaire for all respondents is an estimated 575 hours.
13. There is no application fee associated with the DS-4079, so the total cost burden to respondents is de minimis.
14. The Federal government will incur an annualized estimated cost of $151,805.88. Reviewer burden hours, estimated average hourly rate per reviewer and the number of reviewers were determined to calculate the annualized estimated cost. The process to reach the annualized estimated cost to the Federal government began with the calculation of the estimated average hourly rate multiplied by the total reviewer burden hours ($33.03 x 2 hours = $66.06). The preceding total was then multiplied by the total number of respondents to the questionnaire ($66.06 x 2,298 respondents = $151,805.88).
15. Not applicable. No program adjustments reported in items 13 or 14 of OMB Form 83-I.
16. General statistical information regarding U.S citizens and Loss of Nationality is maintained in the “Consular Package,” the Consular Workload Statistical System (CWSS) system. This is raw data broken down by the Foreign Service post issuing the report.
17. Not applicable; the expiration date will be displayed.
18. Not applicable, no exceptions are requested.
This collection does not employ statistical methods.
Attachment 1
8 U.S.C. 1104: Powers and duties of Secretary of State
Charges the Secretary of State with the administration and the enforcement of the provisions of the Immigration and Nationality Act and all other immigration and nationality laws relating to (1) the powers, duties, and functions of diplomatic and consular officers of the United States, except those powers, duties, and functions conferred upon the consular officers relating to the granting or refusal of visas; (2) the powers, duties, and functions of the Administrator; and (3) the determination of nationality of a person not in the United States.
8 U.S.C. 1501: Certificate of diplomatic or consular officer of United States as to loss of American nationality
Whenever a diplomatic or consular officer of the United States has reason to believe that a person while in a foreign state has lost his United States nationality he or she shall certify the facts in writing with the Department of State under regulations approved by the Secretary of State. Approval from the Secretary of State will constitute a final administrative determination of loss of United States nationality under this chapter, subject to such procedures for administrative appeal as the Secretary may prescribe by regulation, and also shall constitute a denial of a right or privilege of United States nationality for purposes of section 1503 of this title.
8 USC 1481: Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions.
(a) A person who is a national of the United States whether by birth or naturalization shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality.
(1) obtaining naturalization in a foreign state
upon his own application or upon an application filed by a duly
authorized agent, after having attained the age of eighteen years;
or
(2) taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state or a political
subdivision thereof, after having attained the age of eighteen years;
or
(3) entering, or serving in, the armed forces of a foreign
state if (A) such armed forces are engaged in hostilities against the
United States, or (B) such persons serve as a commissioned or
noncommissioned officer; or
(4) (A) accepting, serving in, or
performing the duties of any office, post, or employment under the
government of a foreign state or a political subdivision thereof,
after attaining the age of eighteen years if he has or acquires the
nationality of such foreign state; or (B) accepting, serving in, or
performing the duties of any office, post, or employment under the
government of a foreign state or a political subdivision thereof,
after attaining the age of eighteen years for which office, post, or
employment an oath, affirmation, or declaration of allegiance is
required; or
(5) making a formal renunciation of nationality
before a diplomatic or consular officer of the United States in a
foreign state, in such form as may be prescribed by the Secretary of
State; or
(6) making in the United States a formal written
renunciation of nationality in such form as may be prescribed by, and
before such officer as may be designated by, the Attorney General,
whenever the United States shall be in a state of war and the
Attorney General shall approve such renunciation as not contrary to
the interests of national defense; or
(7) committing any act of
treason against, or attempting by force to overthrow, or bearing arms
against, the United States, violating or conspiring to violate any of
the provisions of section
2383 of title 18, United States Code, or willfully
performing any act in violation of section
2385 of title 18, United States Code, or violating
section 2384 of said title by engaging in a conspiracy to overthrow,
put down, or to destroy by force the Government of the United States,
or to levy war against them, if and when he is convicted thereof by a
court martial or by a court of competent jurisdiction.
(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other 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.
8 USC 1483: Restrictions on loss of nationality
(a) No national of the United States can lose United States nationality under this chapter while within the United States or any of its outlying possessions, but loss of nationality shall result from the performance within the United States or any of its outlying possessions of any of the acts or the fulfillment of any of the conditions specified in this Part if and when the national thereafter takes up a residence outside the United States and its outlying possessions.
(b) A national who within six months after attaining the age of eighteen years asserts his claim to United States nationality, in such manner as the Secretary of State shall by regulation prescribe, shall not be deemed to have lost United States nationality by the commission, prior to his eighteenth birthday.
8 USC 1488: Nationality lost solely from performance of acts or fulfillment of conditions
The loss of nationality under this part shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this part.
22 CFR 50.40: Certification of loss of U.S. nationality.
U.S. citizens who naturalize in a foreign country; take a routine oath of allegiance; or accept non-policy level employment with a foreign government need not submit evidence of intent to retain U.S. nationality. In these three classes of cases, intent to retain U.S. citizenship will be presumed. A person who affirmatively asserts to a consular officer, after he or she has committed a potentially
expatriating act, that it was his or her intent to relinquish U.S. citizenship will lose his or her U.S. citizenship. In other loss of nationality cases, the consular officer will ascertain whether or not
there is evidence of intent to relinquish U.S. nationality.
22 CFR 50.50: Renunciation of nationality
(a) A person desiring to renounce U.S. nationality under section 349(a)(5) of the Immigration and Nationality Act shall appear before a diplomatic or consular officer of the United States in the manner and form prescribed by the Department. The renunciant must include on the form he signs a statement that he absolutely and entirely renounces his U.S. nationality together with all rights and privileges and all duties of allegiance and fidelity thereunto pertaining.
(b) The diplomatic or consular officer shall forward to the Department for approval the oath of renunciation together with a certificate of loss of nationality as provided by section 358 of the
Immigration and Nationality Act. If the officer's report is approved by the Department, copies of the certificate shall be forwarded to the Immigration and Naturalization Service, Department of Justice, and to the person to whom it relates or his representative.
22 CFR 50.51: Notice of right to appeal
When an approved certificate of loss of nationality or certificate of expatriation is forwarded to the person to whom it relates or his or her representative, such person or representative shall be informed of the right to appeal the Department's determination to the Board of Appellate Review (part 7 of this chapter) within one year after approval of the certificate of loss of nationality or the certificate of expatriation.
22 USC 212: Persons entitled to passport
No passport shall be granted or issued to or verified for any other persons than those owing allegiance, whether citizens or not, to the United States.
| File Type | application/msword |
| File Title | PRA Supp Statement |
| Author | MeszarosM |
| Last Modified By | Jaemie L. Drake |
| File Modified | 2007-07-25 |
| File Created | 2007-01-23 |