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Gary Endelman on Immigration Policy and Law

Would an American Pope lose his citizenship?

Rating: 3 votes, 5.00 average.
Last March, there was a frenzy of media speculation over the possible selection of an American cardinal as Pope. At one point, the charismatic Timothy Cardinal Dolan was deemed by informed observers to be a leading contender.
Would an American Cardinal lose his citizenship if elected Pope? Sounds crazy but it could happen. Here's how.

Ever since the signing and ratification of the Lateran Pact in 1929, the Vatican City State has enjoyed the status of a sovereign nation; in fact, it is the world's smallest. As of 2012, there were 594 Vatican citizens, 238 of them with dual citizenship. The majority of Vatican citizens are diplomats who do not live in Rome but are stationed around the world. Unlike all other nations, Vatican citizenship derives neither from blood ( jus sanguinis) nor from place of birth (jus solis) but from office or official capacity( jus officii). The current law on Vatican citizenship was promulgated in 2011 by his Holiness Pope Benedict XVI under which there are 3 eligible categories: (1) all Cardinals resident in Vatican City; (2) Vatican diplomats, and; (3) those persons who resided there to do their jobs, such as the Swiss Guard who protect the Pope.

Pope Benedict remained a German citizen and continued to vote in German elections. He did not have to apply for Vatican citizenship nor did he renounce German citizenship. Vatican citizenship was conferred on him by operation of law. No oath of allegiance to the Vatican city state was required. Remember that my friends because this will be a most salient fact!

Loss of citizenship is determined by Section 349 of the Immigration and Nationality Act. To lose one's citizenship, the citizen must voluntarily commit an expatriating act with the intent of giving up American citizenship. Because Vatican citizenship would automatically attach itself to an American Pope, he could not lose citizenship unde Section 349(a)(1) of the INA which requires an application. If an application was required, however, would an American Pope enjoy the presumption afforded by State Department policy ( 22 CFR 50.40) that such a routine oath of allegiance was sworn with the intent of keeping American citizenship? Probably not because such a presumption only applies to a non-policy level job such as a civil servant, teacher, or local administrator. Judging by the criteria set forth in 7 FAM 1285, as the head of state, the Pope would undoubtedly occupy a policy-level position. This does not mean that an American Pope would lose citizenship, only that he could not benefit from any friendly administrative presumption.

It is a statutory prerequisite under INA 349(a)(4) that the person either (a) take an oath of allegiance or (b) already have the foreign citizenship when assuming office. Here is where an American Pope would likely be protected since neither would be the case for an American Cardinal who did not live in the Vatican and who did not take any oath of allegiance to it. Absent either an oath of allegiance or prior foreign citizenship, the question of whether the Pope is a policy-level position is a question that is simply not reached. Moreover, since the man who becomes Pope is chosen by the College of Cardinals, it might be tough to argue that he "applied" for the job. Is there any "act" within contemplation of INA 349? Would an American Cardinal honored by election at Pope accept the office with the intent of relinquishing his citizenship? Judging by Pope Benedict's ability to continue to discharge his obligations as a German citizen after his election, it seems a stretch to contend that the conduct of an American Pope would be inconsistent with retention of US citizenship.

Boy am I relieved!

PS. This blog is dedicated the shining memory of my good friend and teacher Carmen DiPlacido who wrote the Child Citizenship Act. May his name be honored always by those who benefit from his love of country and devotion to justice

The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan, LLP.

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