I was born in Canada by an American mother, so am I an American citizen?


Cross-posted from Quora

I was born in Canada by an American mother, so am I an American citizen?

Answer by John Richardson , Lawyer (1982-present)

Anybody concerned with the answer to this question should (1) do the appropriate research and (2) get the appropriate advice.

Unless you live in the United States or want to live PERMANENTLY in the United States, you would NOT want U.S. citizenship. U.S. citizens are subject to U.S. taxation on ALL OF THEIR WORLDWIDE INCOME, even if they do NOT live in the United States. In fact U.S. citizens living outside the United States who are “tax residents” of other countries are always “subject(s)” (pun intended) to two tax systems.

The question is: “I was BORN IN CANADA to an AMERICAN mother, so am I an American citizen?” Note that if you were born in Canada you are born in another country where U.S. laws (as much as they would like them to) do NOT presumptively apply. The U.S. Immigration and Nationality Act is the statute that defines who is an American citizen and who is NOT an American citizen.

Here is my answer which is written in a way to encourage caution and to NOT just listen to the first “accountant” (what would an accountant know about this anyway?) or lawyer or immigration consultant.

The answer is “maybe”. It depends. Your approach to this question depends on whether you want to be a U.S. citizen or do not want to be a U.S. citizen.

For those born in Canada and who WANT to be U.S. citizens:

The U.S. Immigration and Nationality Act has specific rules that say under what circumstances a person born to an American mother outside the USA “shall” be a U.S. citizen. The answer is dependent on the mother having a certain number of years of actual physical presence in the United States. (The one year “continuous presence” test was struck down by the U.S. Supreme Court in the 2017 decision of Morales-Santanya).

Therefore, if you want to be an American citizen you would have to establish the existence of specific facts and present those facts to the U.S. State Department and ask them to issue you a U.S. passport. Note that you are NOT entitled to a U.S. passport until those specific facts are proven to the satisfaction of the State Department.

For those born in Canada who do NOT want to be U.S. citizens:

There are some in the tax compliance industry (what do they know about citizenship law anyway?) who have marketed the idea that U.S. citizenship can be imposed on people born in Canada (and other countries) even if they have never considered themselves to be U.S. citizens.

Can the USA forcibly impose U.S. citizenship on people who were NOT “Born In The USA”? What if one was born to an American mother in China (a country that does NOT allow “dual citizenship”). Can the USA forcibly impose U.S. citizenship on that citizen of China?

If you have accepted that you are a U.S. citizen and have traveled on a U.S. passport (and that kind of stuff) then you would NOT be able to defend the accusation of U.S. citizenship. But, if you have done NONE of those things and just happened to have been born outside the United States to an American mother, then your situation is probably different. You are arguably in a position where you would have the “right” to U.S. citizenship (under U.S. law if you want) but NOT the obligation to accept U.S. citizenship (because you were born in a country where the USA does not have jurisdiction).

I am not aware of a single instance where a U.S. court has ruled that people born outside the United States are required to be U.S. citizens.

In any case, if you were NOT born in the USA, you do not have the objective characteristics that would raise the question of “U.S. citizenship” anyway.

This issue has been discussed at the Isaac Brock Society and other sites. The following post provides some of the “analytical tools” to consider the question.

Help: Can the United States IMPOSE US citizenship on those born outside the US?

If you have read this far you might find the following video of interest:

U.S. citizenship and the Government of Australia

The question of “dual citizenship” and whether somebody IS a “dual citizen” was of practical relevance in Australia in 2017. Basically, seven (at least) Australian politicians were accused of being “dual citizens” (making them ineligible to serve in Australia’s legislative body). This “farce” provides a real world example of why it would matter if somebody born outside the USA to an American other would be an American citizen. See the following:

Australian Greens Senator @LarissaWaters resigns because of her CANADIAN place of birth. Too bad she was born in Canada (with images, tweets) · expatriationlaw

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