Citizenship is becoming more and more interesting. In my last post I wrote about Canada’s Conservative leader Andrew Scheer’s U.S. citizenship. Theoretically, on October 21, 2019, Canada could have it’s first U.S. citizen Prime Minister. (Think of the extra pressure that the United States could bring to bear on Canada.)
The newsworthiness of U.S. citizenship continues. There has been much discussion of citizenship as a prerequisite to compete for countries in the Olympic games. It is being reported that tennis star Naomi Osaka , a dual Japan/U.S. citizen is complying with a Japanese law that requires her to choose either U.S. or Japanese citizenship. A number of media outlets are reporting that Ms. Osaka is relinquishing U.S. citizenship. Is this really true? Interestingly the Toronto Globe and Mail initially reported that:
Naomi Osaka giving up U.S. citizenship to play for Japan in 2020 Olympics
The Globe later (presumably realizing their error) changed the title of the article to: Naomi Osaka set to represent Japan at Tokyo Olympics
Note that there is no U.S. law that requires her to choose one citizenship over the other. Ms. Osaka is apparently linking her “choosing Japanese citizenship” to a desire to represent Japan in the upcoming Olympics. A number of media sources are reporting that by choosing Japanese Nationality (under Japanese law) that Ms. Osaka is relinquishing/renouncing U.S. citizenship under U.S. law. This is probably incorrect. The act of “choosing Japanese nationality” under Japanese law does NOT automatically mean that Ms. Osaka has relinquished U.S. citizenship under U.S. law. As a matter of U.S. law:
Unless Ms. Osaka’s “choosing Japanese Nationality” meets the the test of voluntarily and intentionally relinquishing U.S. citizenship under Section 349(a) of the U.S. Immigration and Nationality Act, then “choosing Japanese Nationality” will NOT result in the relinquishment of Ms. Osaka’s U.S. citizenship. The act of “choosing Japanese citizenship” under Japanese law does NOT automatically result in the loss of her U.S. citizenship.
Every country is free to decide who it’s citizens are or are not.
A step by step analysis …
Step 1. Introducing Naomi Osaka
According to (and assuming the accuracy of the above referenced wikipedia article):
Naomi was born on October 16, 1997, in Chūō-ku, Osaka in Japan to Tamaki Osaka and Leonard François. Her mother is from Hokkaido, Japan, and her father is from Jacmel, Haiti. She has an older sister named Mari who is also a professional tennis player. The two girls were given their mother’s maiden name for practical reasons when the family lived in Japan. Osaka’s parents met when her father was visiting Hokkaido while he was a college student in New York.
When Osaka was three years old, her family moved from Japan to Valley Stream, New York on Long Island to live with her father’s parents. Osaka’s father was inspired to teach his daughters how to play tennis, by watching the Williams sisters compete at the 1999 French Open. Having little experience as a tennis player himself, he sought to emulate how Richard Williams trained his daughters to become two of the best players in the world, despite having never played the sport. François remarked that, “The blueprint was already there. I just had to follow it”, with regard to the detailed plan Richard had developed for his daughters. He began coaching Naomi and Mari once they settled in the United States. In 2006, Osaka’s family moved to Florida when Naomi was eight or nine years old so that they would have better opportunities to train. Naomi practiced on the Pembroke Pines public courts. When she was 15 years old, she began working with Patrick Tauma at the ISP Academy. In 2014, she moved to the Harold Solomon Tennis Academy. She later trained at the ProWorld Tennis Academy.
Although Osaka was raised in the United States, her parents decided that their daughters would represent Japan. They said, “We made the decision that Naomi would represent Japan at an early age. She was born in Osaka and was brought up in a household of Japanese and Haitian culture. Quite simply, Naomi and her sister Mari have always felt Japanese so that was our only rationale. It was never a financially motivated decision nor were we ever swayed either way by any national federation.” This decision may have also been motivated by a lack of interest from the United States Tennis Association (USTA) when Naomi was still a young player. The USTA later offered Naomi the opportunity to train at their national training center in Boca Raton when she was 16 years old, but she declined.
It appears that because Ms. Osaka was born in Japan that she became a Japanese citizen at birth. Although the article makes reference to a Haitian father, it does not specify whether her father was a U.S. citizen when Ms. Osaka was born. Assuming that her father was a U.S. citizen at her birth, this means that Ms. Saito would also be a U.S. citizen at birth (a fact that would be of enormous consequence should she wish to relinquish U.S. citizenship).
2. Japanese Law – The Requirement of Choosing Citizenship
Japanese law does NOT allow dual citizenship. (See my recent post about what Japan’s prohibition of dual citizenship means in terms of the new U.S. Japan tax treaty.)As a result, Japanese citizens who have dual citizenship FROM BIRTH are required to choose one nationality or the other between the ages of 20 and 22. To quote the Japan Times article:
The nationality law officially obliges those who have multiple citizenships by birthright to choose one by the age of 22.
Part 3 – What does “choosing Japanese citizenship” mean? What is required under Japanese law to do so?
Q. What, under Japanese law does it mean to choose one citizenship or the other? What does “choosing Japanese citizenship” mean?
A. “Choosing Japanese citizenship” appears to be an administrative procedure under Japanese law. It does NOT require renouncing U.S. citizenship under U.S. law.
Therefore, as per the following message from the U.S. State Department:
Therefore, (and this is important) the mere fact of Ms. Osaka “choosing Japanese citizenship” under Japanese law does NOT affect her U.S. citizenship! It seems unlikely to me (given that her residence appears to be the United States) that she would want to relinquish her U.S. citizenship. But, on the other hand …
Part 4 – Could Ms. Osaka choose to treat her “choosing Japanese citizenship” as an act of relinquishing U.S. citizenship under U.S. law?
Section 349(a) of the U.S. Immigration and Nationality Act reads as follows:
(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 non-commissioned officer; or
(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, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 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.
(Methods (1), (2), (3), (4) and (5) are common ways of relinquishing U.S. citizenship. Methods (6) and (7) are less common. Notice that “renunciation” is a form of relinquishment that does require the assistance of a “consular or diplomatic officer” of the United States. Most of other forms of relinquishment may be performed independently.)
Let’s focus on (2) which reads:
(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;
It appears that Ms. Osaka’s “choosing Japanese citizenship” under Japanese law would, IF performed with the INTENTION OF RELINQUISHING U.S. citizenship, result in a relinquishment of her U.S. citizenship. The administrative procedure of “choosing Japanese citizenship” under Japanese law does not necessarily constitute the “intention to relinquish U.S. citizenship under U.S. law. Only Ms. Osaka would know whether she intended to relinquish U.S. citizenship or not.
1. “Choosing Japanese citizenship” under Japanese law does NOT automatically result in a relinquishment of U.S. citizenship; but
2. If Ms. Osaka’s intention was to relinquish U.S. citizenship by “choosing Japanese citizenship” then and only then would does “choosing Japanese citizenship” mean that she has relinquished U.S. citizenship.
Only Ms. Osaka knows for sure!
Part 5 – Relinquishment of U.S. citizenship and the U.S. Expatriation Tax
It is possible that by “choosing Japanese citizenship” that Ms. Osaka will relinquish her U.S. citizenship. In a FATCA, FBAR and citizenship-based taxation world, many Americans are relinquishing U.S. citizenship. Ms. Osaka will (presumably) be a high income individual. I assume that she is receiving competent legal and tax advice. The United States has – pursuant to Internal Revenue Code 877A – the most draconian expatriation taxes in the history of the world. She is young enough so that she can look forward to wealth taxes. Therefore, Ms. Osaka should seriously consider relinquishing U.S. citizenship. The question is when and how.
Assuming that Ms. Osaka is a dual citizen from birth, she can potentially take advantage of the “dual citizen from birth” exception to the Expatriation tax rules.
But,that question is for another day and another post.
Have a question? Contact John Richardson.