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Analyzing the Legislative History of Public Law 19-91’s Rebuttable Presumption of Renunciation of Dual Citizenship

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Legislative History of Public Law 19-91

In the last blog, we discussed Public Law 19-91 in general. Here we take a step back and analyze the legislative history of this law.   “Legislative history is a term that refers to the documents that are produced by Congress as a bill is introduced, studied and debated.   These legislative documents are often used in an attempt to determine Congressional intent.”   (See http://guides.ll.georgetown.edu/legislative_history)

On February 11, 2016, the Standing Committee of the Judiciary and Governmental Operations issued Standing Committee Report No. 19-116.  Report No. 19-116 states, “[e]ssentially, the bill was intended to apply to those FSM passport holders older than 21 who want to renew their passports without having to scramble at the last minute to create evidence of having previously renounced foreign citizenship.”

Committee members, however, questioned witnesses from the Department of Justice, Division of Immigration, and the Office of the President as to “whether they thought this bill would operate as a back door to dual citizenship given that there are numerous individuals over 21 who currently hold two passports.”

“The witnesses explained that at present there is no way for FSM Immigration to obtain information from the U.S. to confirm that an individual is a U.S. citizen.    However, if FSM Immigration does discover this, they will cancel that individual’s FSM passport.”

The representative of the Department of Justice, when asked whether the bill should be amended to make it retroactive stated it would be problematic but further consideration would be given.

Another issue raised at the public hearing “concern[ed] the fact that many foreign born FSM citizens currently living abroad have no idea that they must take any action to retain or ultimately restore their FSM citizenship.”    It was “recommended that the Department of Justice consider undertaking a public information campaign to educate these young FSM citizens to minimize the chance that Division of Immigration may be faced with many more frustrated FSM citizens/or nationals in the future.”

Our Thoughts

What we learn from the legislative history contained in Report No. 19-116 is that FSM Immigration will cancel an individual’s FSM passport if it finds proof that an individual older than 21 is a U.S. citizen or citizen of another foreign country.    That doesn’t seem to be anything new.   But in terms of Public Law 19-91’s rebuttable presumption, the presumption is essentially wiped out if and when FSM Immigration is able to confirm from another country that a FSM citizen who is over the age of 21 is also a citizen of that country.    Therefore, it is fair to ask what if any benefit is there to Public Law 19-91’s rebuttal presumption.    Let’s continue and see.

On a practical level what is likely happening is that immigration officers flag an application when someone that is clearly FSM by blood was born in a foreign country.   The immigration officer probably on a case-by-case basis decides whether to simply renew the FSM passport (those folks should consider themselves lucky…for now) or to question the applicant regarding whether he/she is a citizen of that foreign country and if so has renounced.

The applicant could at that point argue with a big hopeful smile that because he/she has obtained a FSM passport two times in a row since turning 21, he/she is entitled to a renewed passport based on Public Law 19-91.    The immigration officer could renew the FSM passport or seek to overcome the presumption that the applicant renounced.    If the immigration officer is able to obtain evidence to overcome the presumption (e.g. officer in the military), a renewed FSM passport will not be issued and the applicant would likely be labeled a FSM national.

It is certainly important to note that despite the rebuttable presumption that Public law 19-91 attempts to provide, our Constitution makes it clear that dual citizenship is not allowed particularly after the age of 21.    Therefore, the immigration officer in the above scenario should be able to tell an applicant that despite the presumption of Public Law 19-91, the applicant must provide proof of renunciation—effectively destroying the presumption—based on the FSM Constitution.    We all know our Constitution is the highest law of the land.

In the end, amending our Constitution is probably the best route to dealing with the dual citizenship issue considering it would be difficult if not outright impossible to pass any sort of law that attempts to distort the clear mandate of our Constitution.

The only likely option for those over the age of 21 that have missed the train and cannot afford to wait for our Constitution to be amended for whatever reason is to consider naturalization.  We will explore naturalization in future blogs.

Thank you.




 


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