State Dept seeks dismissal of 'accidentals' legal case relating to suspension of voluntary expatriation services

Since the legal action was filed, embassies and consulates in many countries but not, apparently, all of them have re-started expatriation and other citizenship services, according to John Richardson, a Toronto-based lawyer who helps Americans to expatriate in Canada as well as elsewhere. France is among the countries where they are open again, he said, as is Canada, but they're believed to still be closed in Australia.

As of today, a statement on the website of the U.S. Embassy in London says that it is "currently unable to accept appointments for Loss of Nationality applications" nor is it able to "provide a timeframe for when" the service will resume.

The U.S. consulates in Edinburgh and Belfast are also unable to schedule such appointments, the statement adds. 

In a 40-page Memorandum in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, filed on Monday, the State Department argued that the arguments put forward by the AAA and its fellow plaintiffs lacked standing, and that it (the State Department) had "not unlawfully withheld or unreasonably delayed loss of nationality services." 

Complaint filed in November

As reported, the AAA and its co-plaintiffs filed their complaint last November, a little more than two months after the organization announced that it and a number of individuals were planning to crowd-fund such a complaint against the State Department over the difficulties dual citizens around the world have been having in their efforts to renounce or relinquish their U.S. citizenships, owing to the continued closure of U.S. embassies and consulates in response to the Covid pandemic.

At the time it and its fellow plaintiffs filed their complaint, the AAA, along with some 20 individual accidental Americans of 10 different nationalities, already had an earlier action against the State Department underway since the previous December, which alleged that the US$2,350 fee that the U.S. currently charges those wishing to renounce their American citizenship "violate[s] the U.S. Constitution and international law".

Since that complaint was filed, the State Department has twice asked the judge in that matter to dismiss it, on grounds that the AAA had failed to sufficiently make their case.

In a statement issued yesterday, the AAA and its fellow plaintiffs said that because the right to renounce U.S. nationality is "a fundamental, natural and inherent right protected by the U.S. Constitution," the suspension by U.S. officials of renunciation-related services "is forcing plaintiffs to remain U.S. citizens against their will," while also violating the Administrative Procedure Act, a U.S. law that governs the way the U.S. goes about writing new laws.

Responding to the State Department arguments that the U.S. has no “clear duty” to arrange for renunciation interviews; that any delays in providing renunciation services are “reasonable” and that they (the plaintiffs) don't have a fundamental right to “obtain an appointment […] within days or weeks of requesting one,” the accidental American plaintiffs add, in their " where a number of courts have held that delays due to Covid-19 and related matters were reasonable.

The AAA and other campaigners for accidental Americans' rights have argued that in an era when online interviews have become routine in business, medicine and other areas, those individuals seeking to expatriate or renounce their citizenships should no longer be required to appear in person at a U.S. embassy or consulate, particularly if such institutions are having to restrict such in-person meetings for health reasons.

Why accidental Americans
are expatriating   

As this publication and others have been reporting, accidental Americans have been expatriating and renouncing their U.S. citizenships in large numbers in recent years because of the difficulties many have started to encounter as they attempt to go about their lives as citizens of other countries, as a result of a 2010 U.S. law known as FATCA, which, beginning around 2014, has forced banks and other financial institutions to collect data on the financial accounts of all of their "U.S. Person" account-holders. Many such institutions have just decided not to accept American citizen account-holders at all, and have told those that they already had to take their accounts elsewhere.

This has made life especially difficult overnight for those citizens of other countries who didn't have any idea, often until their bank told them within the last two years, that the fact that they had been born many decades ago in the U.S., or abroad to an American expat parent, meant that they were considered to be U.S. citizens in addition to citizens of the countries in which they were living. 

And as U.S. citizens, they were told, they would be required to enter the U.S. tax system, obtain a U.S. Tax Identification Number, file tax returns every year, and potentially even pay U.S. taxes on such things as income realized on the sale of their home. 

The Accidental Americans Association, (or l’Association des Américains Accidentels, as it's known to its 1,400 members) has been actively campaigning on behalf of such "accidentals" since it was founded in 2017 by Fabien Lehagre, who was born in the U.S. but came to France at the age of 18 months. 

Altogether the AAA estimates there are more than 40,000 accidentals in France, and as many as 300,000 across Europe.

Lehagre didn't immediately respond to a request for comment, nor did the lawyer who is representing the AAA and the other plaintiffs in the State Department matter,  L. Marc Zell, of Zell & Associates International Advocates LLC. 

Plaintiffs: 'plan to file opposition motion'

The AAA and its fellow plaintiffs say they "plan to file a comprehensive opposition" motion to that of the State Department imminently. Meanwhile, they added, in their statement issued yesterday, a decision in the matter of their separate challenge, to the US$2,350 renunciation fee, "is expected shortly."