updated 10:35 AM CET, Jan 26, 2022

Assn' of Accident'l Americans responds to State Dept in renunciation fee legal challenge

Assn' of Accident'l Americans responds to State Dept in renunciation fee legal challenge Wikimedia Commons No. 7000640

The Paris-based Association of Accidental Americans – along with the 20 "accidental Americans" of 13 different nationalities with which it is jointly challenging the U.S. government in court over the US$2,350 fee that the U.S. currently charges those wishing to renounce their American citizenship – today issued a formal, 45-page response to the government's April 26 motion for summary judgment in the matter. 

The accidental American plaintiffs also filed a cross-motion for summary judgment, in which they asked the court to rule that the right to voluntarily renounce U.S. citizenship is a fundamental right.

The AAA's filing today comes less than two months after the State Department filed its initial response (in the form of the request for summary judgment)  to the AAA's legal challenge, which it filed in a U.S. District Court in Washington, DC last December, and in which they alleged that the US$2,000-plus renunciation fee violates the U.S. Constitution as well as international law.

In their complaint, as reported, the plaintiffs argued that the right of an individual to renounce their U.S. citizenship was "a fundamental, constitutional, natural and inherent right under the U.S. Constitution."

The State Department’s excessively high renunciation fee, the claim summary filed in December added, is “essentially forcing U.S. citizens to remain U.S. citizens against their will."

"Accidental Americans" is a term widely given to individuals who may have been born in the U.S. to non-American parents who left soon afterwards, or who were born abroad to one or more American parents, and who may therefore never set foot on American soil at all.

In L’ Association des Américains Accidentels, et al. v. U.S. Department of State, et al. (Case No. 20-cv-3573), the plaintiffs have asked the U.S. District Court for the District of Columbia to rule for the first time in history that Americans have a fundamental right, under the U.S. Constitution, to expatriate.

In a statement announcing today's filing, the AAA noted that the U.S. renunciation fee "is the highest by far charged by any nation for the renunciation of citizenship."

It added: "Many countries charge nothing for the right to expatriate, which was the case in the United States for some 239 years.

"A US$450 renunciation charge was imposed for the first time in 2010, at the same time the U.S. enacted the controversial Foreign Account Tax Compliance Act (FATCA), which has caused thousands of accidental and other Americans living abroad tremendous hardship in conducting their daily financial affairs.

"Because of FATCA, many foreign banks have expelled their American citizen customers, and refuse to provide banking services to Americans.

"Other financial institutions have imposed burdensome administrative procedures, and are transferring sensitive personal financial data to the American tax authorities.

"The data transfer provisions of FATCA have been criticized as violating European and other data protection rules, particularly in light of recent mass hacking attacks in the U.S., resulting in the disclosure of millions of private data files."

The AAA noted that since FATCA was signed, there had been a "dramatic increase in the number of Americans living overseas seeking to renounce their U.S. citizenship," but that many found the renunciation fee prohibitively high, "forcing them to delay or forego expatriation – in violation of the U.S. Constitution’s protection for due process, free speech and the prohibition against excessive fines."

In their latest filing, the plaintiffs’ counsel – L. Marc Zell and Noam Schreiber, of the international law firm, Zell & Associates International Advocates, LLC – explain how the right to expatriate is a fundamental constitutional liberty with what they say are "deep roots in American history and political tradition."

They also point out that although the U.S. government says the $US2,350 fee is needed to cover processing costs of a very “time-consuming” process," in actual fact, it had been shown that, when weighed against the fundamental right to renounce, "the State Department’s cost recovery rationale fails to pass the strict constitutional test."

Also, they say, when the U.S. government’s own renunciation statistics are analyzed, alongside acknowledgement of the timing of FATCA, the renunciation fee could be seen by some to have a sinister purpose: to stigmatize and deter Americans abroad from exercising their fundamental, natural right to expatriate.

'Little choice but to renounce'

Echoing the comments of growing numbers of American expats– not just "accidentals" – Association of Accidental Americans president Fabien Lehagre said in a statement that  "FATCA and other related laws targeting and placing heavy burdens on U.S. citizens abroad have left accidental Americans with little choice but to renounce U.S. citizenship."

He added; "The time has come for the Biden administration to allow us to cut off our ties with the United States, and to freely exercise our fundamental right to renounce our citizenship. "

The AAA's legal action against the State Department over the renunciation fee was the AAA's first legal action in the U.S., but the latest in a series of similar cases it's brought in Europe since the organization was founded in 2017 by Fabien Lehagre, pictured left, a California-born accidental whose French father brought him back to France at the age of 18 months. The AAA currently has around 1,200 members.

As reported,  the AAA filed a complaint in 2019 against France with the European Commission, alleging that the country was infringing European data protection and privacy law, after having filed lawsuits earlier in the year against a number of online banks in France for discriminating against Franco-American dual nationals by refusing to open bank accounts for them because of their U.S. citizenship status.

The AAA also challenged the French government's implementation of FATCA, on behalf of the U.S., violated the privacy of dual French/American citizens, but lost the case in July 2019, after France's Conseil d'Etat ruled that the law could stand and didn't need changing or to be scrapped.

Lehagre announced the AAA's plans to launch a crowd-funded legal challenge to the renunciation fee in August, and within less than a month, said the crowd-funding target of €20,000 had been met.

To see edited excerpts from the accidental American plantiff's  "Memorandum of Points and Authorities in Opposition to Defendants’ Motion for Partial Dismissal and Summary Judgment in Support of Plaintiffs’ Cross-Motion for Partial Summary Judgment", click on "next", below right: 

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