“Less talk, less mistake; No talk, no mistake,” Genaro Magsaysay reportedly said when asked to talk about the issues while he was running for a Philippine Senate seat. He won.
The Commission on Appointments on March 8, rejected the ad interim appointment of Attorney Perfecto R. Yasay, Jr as Philippine Secretary of Foreign Affairs after he refused to answer a Commission member’s question to “categorically answer 'yes or no,' whether at one point in time in your life, were you ever an American citizen? Just a yes or no.” Yasay had replied: "I wish I could answer that question with a yes or no, but as directly as I could in answering that question, I have always admitted that I was granted US citizenship. That is my answer." "I was granted US citizenship on November 26, 1986, but it is my position that that grant of US citizenship at that time was void ab initio on the basis of the explanation I have stated in my affidavit.”
Yasay reportedly said in a prior interview: “But at that time I was granted US citizenship, I had a “preconceived intent” of returning back to the Philippines.” He reportedly said that taking the oath of citizenship “does not make me a US citizen if precisely the basis upon which the grant of American citizenship is flawed and is defective." "I would not have and I did not acquire legally American citizenship. It is precisely for that reason that three months after, in January 1987, I returned back to the Philippines." "And this consolidated the position that I did not legally acquire US citizenship and I returned all of my papers, executed an affidavit, telling the American authorities that I did not qualify." He said that under American law, one is "disqualified for being an American citizenship" if at the time of application or granting, one had the "preconceived intent of abandoning your US residency and in fact you abandon your US residency within two years after obtaining that U.S. citizenship."
On November 24, 1986, Yasay took his oath as a United States citizen. On January 8, 1987, Yasay returned to the Philippines and “abandoned” his U.S. residency. On February 23, 1993, Yasay signed an affidavit that he had abandoned his residency in the United States in 1987, thereby becoming "ineligible" for U.S. citizenship. In March 1993, Yasay was appointed as an associate commissioner of the Philippine Securities and Exchange Commission (SEC). On June 28, 2016, Yasay renounced his American citizenship before an American consular official in Manila. On February 22, 2017, Yasay told the Commission on Appointments that his 1993 affidavit stating that he had abandoned his U.S. residency "nullified" his oath of allegiance to the U.S., thus he "did not acquire legal status as a U.S. citizen."
The question has arisen: why did Mr. Yasay have to formally renounce his U.S. citizenship before a U.S. consular official in Manila on June 28, 2016 if the grant of U.S. citizenship to him on November 24, 1986 was “void ab initio” because he had a “preconceived intent” of returning back to the Philippines?
CONCEDING U.S. CITIZENSHIP BUT ADMITTING ITS SUBSEQUENT LOSS
Would Mr. Yasay’s appointment have been confirmed if he had simply said “yes” - that he became an American citizen in 1986 when he took the oath as a naturalized American citizen, but lost his American citizenship (or nationality) in March 1993 when he was appointed as a Commissioner of the Securities and Exchange Commission and took an oath of allegiance to the Philippines, citing Sec. 349(a)(4) of the U.S. Immigration and Nationality Act [8 U.S.C. 1481(a)(4)] which provides in relevant part:
(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-
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(4) (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”
Mr. Yasay, by “accepting, serving in, or performing the duties of” a Commissioner, either (a) acquired Philippine nationality or citizenship, or (b) took “an oath, affirmation, or declaration of allegiance” to the Philippines. Therefore, he lost his American citizenship at that time.
OBSERVATION: According to some observers, Mr. Yasay took the position that his naturalization as an American citizen was void ab initio (from the beginning) to prevent any charge that he was occupying a government position (SEC commissioner) and running for office (senator and vice president), even though he was a U.S. citizen. But such a charge could not successfully be made because he automatically lost his U.S. citizenship when he was appointed as SEC Commissioner and took the oath of allegiance to the Philippines.
Mr. Yasay posted this on Facebook: “I faithfully did my duties and responsibilities in the service of our country the best way I could, the best way I know how, with honor, dedication, fairness, competence, dignity, and respect.”
Many wish Mr. Yasay had consulted an honest and competent counsel who knows U.S. Immigration and Nationality Law, especially Sec. 349(a)(4).
MORAL LESSON: People facing a legal issue should hearken to Abraham Lincoln’s comment about a person representing himself. See https://www.avvo.com/legal-guides/ugc/abraham-lincoln-had-it-right---he-who-represents-himself-has-a-fool-for-a-client
OTHER GROUNDS FOR LOSING AMERICAN NATIONALITY
Other grounds for losing American nationality under Sec. 349 are:
(1) obtaining naturalization in a foreign state; or
(2) taking an oath or making an affirmation of allegiance to a foreign state; or
(3) entering, or serving in, the armed forces of a foreign state; or
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(5) making a formal renunciation of nationality before a diplomatic officer of the United States in a foreign state; or
(6) making a formal written renunciation of nationality whenever the United States is in a state of war; or
(7) committing treason against, or attempting by force to overthrow, or bearing arms against, the United States.
(b) The burden is upon the party claiming that loss of nationality occurred to establish such claim by a preponderance of the evidence. Any person who performs any act of expatriation shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act was not done voluntarily.