I have read so much lately in the Peruvian media about dual citizenship of Mr. Pedro Pablo Kuczynski, candidate for Peruvian presidency. He is a Peruvian born and naturalized US citizen.
I have even read that when at the moment of the Pledge of Allegiance in the US Naturalization process, the immediate effect is the loss of Peruvian citizenship because of a mandatory clause contained in the said oath.
About this topic, I will not comment on Peruvian laws since the official agency in charge of deciding if Mr. Kuczynski’s candidacy proceeds already made a decision and issue an official statement about this issue. There is no conflict between his candidacy and the requirements expressed in Peru’s Constitution and there is no evidence of his renunciation for the Peruvian citizenship.
About the US legislation is that I would like to make some comments:
Is that true that the Oath for Pledge of Allegiance at the moment of naturalization formally mandates the renunciation of the previous citizenship?
Back in the XIX century when this oath was first introduced, which its current wording is contained in the section 337(a) INA Immigration and Naturalization Act, estimated it was enough to include this phrase without including any material measures to ensure that the individual had to consequently renounce to his previous citizenship, it was assumed that it corresponded to the other countries to respect that clause. Recently, the Department of State had taken a more pragmatic and realistic approach to this circumstance.
But, how did the Department of State had taken this stand about this topic?
The judicial history of the United States had played a significant role in the changes that had been incorporated in their positive law through their Case Law. The most significant case is Afroyim v. Rusk (1967).
Beys Afroyim, born in Poland and naturalized US Citizen, immigrated to Israel by befitting from the Law of Return and participated in the Knesset or Israeli Parliament Elections. When he requested the renewal of his US passport it was denied on the grounds of loss of citizenship for his participation in foreign elections. Afroyim sued the Department of State and the Supreme Court decided in his favour.
The key point in this decision was that of assigning citizenship to the category of “Constitutional Protected Right” and to determine changes in the section of the INA that regulates the loss of citizenship on the grounds of: “(i) participate in foreign elections, (ii) serve in a foreign army, (iii) pledge allegiance to a foreign country”; by introducing the key element that will determine the loss of citizenship being that the clear and manifest intention of renouncing to thee.
In 1991, in Deltamar v. Rich the Court of Appeals of the Second District, Marc Rich defendant in a multimillion dollar sue tried to evade the jurisdiction of the Court by appealing to his condition of Spanish national by naturalization, affirming that he renounced to his US citizenship when acquiring the Spanish nationality. Nevertheless, he was consistent in his behaviour of acting like a US citizen by using his US passport. The Court decided that the act of renunciation not only has to be of clear and manifest intention but also the consequent acts must comply with this intention.
However, there is a clue point upon which certain level of speculation would be worth making. Is clear that a Peruvian born, who did not renounce to his Peruvian nationality, and then acquires the US citizenship and becomes a dual citizen can run for Peru’s presidency according to the Political Constitution of Peru, what would happen if this same person is effectively elected President?
Pursuant to Section 349 (a) (4), “...accepting, serving in or performing duties in a foreign government is a potentially expatriating act if the person is a national of that country or takes an oath of allegiance in connection with the position.”
The Department of State had taken the stand of assuming the presumption in favour of maintaining the US citizenship when such position does not involve policy making and when such country does not hold hostile relations with USA; nevertheless, this presumption does not necessarily apply when the national is elected for a position where policy making powers are involved.
In this particular case, the Department of State will analyze in a case-by-case basis the intention of the individual, if it is clear and manifest his intention to renounce to his citizenship, since, the simple fact of serving in a foreign country does not configure per se the loss of US citizenship if the individual is acting in a manner that is interpreted otherwise.
Therefore, we should wait until April 10th and most probably until the second round or even more, until July 28th when the next president will be sworn in office. To find out, in case Mr. Kuczynski is elected, to see if the Department of State will expatriate him on grounds of Section 349 (a) (4) or not, if no renunciation request comes straight from him before that. But, I must say, that is customary that the Department of State, when there is insufficient evidence of the intention to renounce that it will decide not to expatriate and not configure such loss of citizenship.
And finally, in terms of democracy and civil liberties, as well as in pursuant of what both legislations say about this topic, is not fair to conclude that this candidate must renounce in advance to his citizenship since there is no law or statute that mandates it so, being that the situation, no other candidate should request this otherwise, doing so would be considered like acting over the power of the law, and that my friends, is something that I am really scared about in a leader.
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