“The current state dept foreign affairs manual 7 FAM 1292 i) 2) says minors under 16 are not to be regarded as capable of renouncing nationality.”
The FAM is a policy and procedures manual to dictate the current administrations policies. Note the part of FAM you’re quoting was revised after Obama took office.
Furthermore, it is a comment on the revocability of a CLN issued to a minor. Obama could have returned to the U.S. and revoked his CLN anytime before 6 months after his 18th birthday.
Congress and the Courts do not have Constitutional authority to dictate terms on the forfeiture of citizenship. Only the Executive Branch can dictate terms on citizenship forfeiture. However, Congress and the Courts do have Constitutional authority to dictate terms on revocability after a CLN is issued.
FAM 7 1292 is a reference to the fact a minor may revoke their CLN for any unspecified reason. The current administration has issued policy guidance it won’t issue a CLN to a minor because of that reason. Afroyim v. Rusk was ruled on by SCOTUS in 1967. Rusk understood the ruling was to revocability and not a ruling to terminate his ability to issue CLNs without formal renunciation proceedings. Obama was issued a CLN at this time with the understanding he could revoke the CLN for any reason.
Sven, I copied this from FAM 7 1292:
i. Renunciation of U.S. citizenship and minors:
(1) Consult CA/OCS/ACS: Whenever you receive a request to renounce from a minor you immediately must contact CA/OCS/ACS. CA/OCS/ACS will not approve a Certificate of Loss of U.S. Nationality (CLN) for a minor without the concurrence of CA/OCS/L, and appropriate consultation with L/CA;
(2) Voluntariness and intent: Minors who seek to renounce citizenship often do so at the behest of or under pressure from one or more parent. If such pressure is so overwhelming as to negate the free will of the minor, it cannot be said that the statutory act of expatriation was committed voluntarily. The younger the minor is at the time of renunciation, the more influence the parent is assumed to have. Even in the absence of any evidence of parental inducements or pressure, you and CA must make a judgment whether the individual minor manifested the requisite maturity to appreciate the irrevocable nature of expatriation. Absent that maturity, it cannot be said that the individual acted voluntarily. Moreover, it must be determined if the minor lacked intent, because he or she did fully understand what he or she was doing. Children under 16 are presumed not to have the requisite maturity and knowing intent;
(3) Interviewing a minor: When conducting the initial interview with a minor and during the renunciation procedure, you should have at least one other person present. The parents and guardians should not be present. As noted, the interview should take place in the presence of the consular officer and a witness, preferably another consular officer, another Foreign Service officer (nonconsular) or locally employed staff (LE staff). You should also explain that upon reaching the age of 18, the minor has a six- month opportunity to reclaim U.S. nationality. See 7 FAM Exhibit 1292, A Sample Letter to Accompany CLN for Minor Renunciants, which should be provided to minor renunciants together with an approved CLN;
(4) Consular officer’s opinion: You should fully document every interaction with the minor and explain in your consular officer’s opinion the reasons you believe that the minor is, or is not, mature enough and sufficiently knowing to renounce
You also state: “The FAM is a policy and procedures manual to dictate the current administrations policies. Note the part of FAM you’re quoting was revised after Obama took office.”
Show us the other prior manual before it was revised for a comparison in order to validate your claims.