Eileen Gu: What’s the Deal with Her Nationality?

Eileen Gu (谷爱凌) is a Chinese-American freestyle skier competing in three events at the Winter Olympics in Beijing: halfpipe, slopestyle, and big air. At the same time, the San Francisco native is the subject of intense controversy for switching from the U.S. to China’s national team. This article addresses the question, what’s the deal with her nationality?

Facts and Ambiguities

Eileen was born in San Francisco, California, on September 3, 2003, according to FIS (the International Ski Federation), GU Ailing Eileen – Athlete Information (last viewed Feb. 6, 2022).

Her mother, Yan Gu (谷燕), was born in Beijing, per The Economist, Cold Warrior: Why Eileen Gu Ditched Team USA to Ski for China (Feb. 3, 2022).

According to her CV on LinkedIn, Yan Gu earned a master’s degree at Auburn University before beginning a research fellowship in molecular genetics at Rockefeller University in New York in 1989. Yan Gu, LinkedIn (last viewed Feb. 7, 2022). I’ve seen no reports of her U.S. immigration status.

The name of Eileen’s father has not been reported on. She never mentions him, and Yan Gu has said only that he is an American-born graduate of Harvard University. WSJ, China’s Star Skier Was Born in the USA—and Still Lives There (Jan. 31, 2022); The Economist, supra.

In 2019, Eileen switched national affiliations with FIS (the International Ski Federation) from the U.S. to China. She announced on Instagram, “I have decided to compete for China in the upcoming 2022 Winter Olympics.” WSJ, supra; FIS, supra; Brian Murphy, All About Eileen Gu, the Chinese-American Olympic Freestyle Skier, NBC Sports (Feb. 7, 2022).

The International Olympic Committee (IOC) Press Office has told a Chinese reporter, Lizzi (李其), that IOC approved her change of sporting nationality after reviewing a copy of her Chinese passport:

Similarly, the IOC told Voice of America that Eileen has “acquired” Chinese nationality. Although she has not addressed this topic publicly, the IOC statements corroborate prior press reports that she naturalized in China in 2019:

It is unclear whether Eileen has renounced her U.S. citizenship. But so far, her name does not appear in the IRS’ Quarterly Publication of Individuals Who Have Chosen to Expatriate in the Federal Register.

Is Eileen an American Citizen?

To start with the obvious, Eileen acquired U.S. citizenship automatically by birth in the U.S. The Fourteenth Amendment to the U.S. Constitution provides that, “All persons born … in the United States and subject to the jurisdiction thereof, are citizens of the United States….” (The phrase “and subject to the jurisdiction thereof” seems to have been intended to exclude from the reach of the language children born of diplomatic representatives of a foreign state and children born of alien enemies in hostile occupation).

However, as discussed below, when she later was granted naturalization as a Chinese citizen, she was required to renounce her U.S. citizenship.

Under federal regulations, merely naturalizing in a foreign country does not result in loss of U.S. citizenship. Instead, a person must demonstrate they voluntarily intend to relinquish citizenship by submitting an affidavit requesting that a U.S. consular officer issue a certificate of loss of nationality. 22 C.F.R. § 50.40. A child under age 16 will be presumed to lack the maturity to form such intent.

Eileen turned 16 around the time of her reported 2019 naturalization in China. But, as mentioned above, it appears she may not have renounced her U.S. citizenship because her name has not been listed in the IRS’ “Quarterly Publication of Individuals Who Have Chosen to Expatriate.”

After expatriation, there is no easy path to get back U.S. citizenship. Eileen would need to first apply for and be granted permanent resident status, then complete the requisite period of continuous residence in the U.S. (usually 5 years) before applying for naturalization.

Is Eileen a Chinese Citizen?

The reports that Eileen naturalized in China confirm that she did not automatically gain Chinese citizenship at birth. Under Article 4 of China’s 1980 Nationality Law, a child born abroad to one Chinese parent will not automatically obtain Chinese citizenship if (a) that parent has settled (定居) abroad; and (b) the child has acquired foreign citizenship at birth.

Under that rule, Eileen wouldn’t gain Chinese citizenship at birth in 2003 if her mother was “settled” in the U.S. Her mother had been in the U.S. from at least 1989, during which time it’s likely she “settled” by becoming a U.S. lawful permanent resident or citizen.

Under sporting rules, it also appears that Eileen must be a PRC citizen in order to compete for Team China in the Beijing Olympics. Rule 41 of the Olympic Charter states that “Any competitor … must be a national of the country of the [national Olympic committee] which is entering such competitor.” At a minimum, an athlete must meet that country’s legal definition of “national.” Court of Arbitration of Sport ad hoc Division OG 2000/001, United States Olympic Committee (USOC) and USA Canoe/Kayak / International Olympic Committee (IOC), Sept. 13, 2000 (holding that Angel Perez, born in Cuba, was not a “national” of the United States for purposes of competing in the Olympics until he met the met the definition of “national” under the U.S. Immigration and Nationality Act). See Peter J. Spiro, Problematizing Olympic Nationality, 114 Am. J. Int’l L. 374 (2020).

The Charter leaves it to FIS to apply the nationality rule, although IOC may review the matter. Bye-law to Rule 40. FIS International Competition Rule 203.3 states the general requirement that a passport is required to establish nationality. But see Rule 203.5.2, giving the FIS Council “absolute discretion” to grant a license “notwithstanding the fulfillment” of that condition where it is in the “best interests” of FIS to do so.

Eileen’s naturalization would have been pursuant to Article 7 of China’s 1980 Nationality Law, which states that

Foreign nationals … who are willing to abide by China’s Constitution and laws and who meet one of the following conditions may be naturalized upon approval of their applications: (1) they are near relatives of Chinese nationals; (2) they have settled in China; or (3) they have other legitimate reasons.

Under the Nationality Law, article 8, upon naturalizing in China, Eileen would have been required to give up her U.S. citizenship. as discussed above:

a person whose application for naturalization as a Chinese national has been approved shall not retain foreign nationality.

被批准加入中国国籍的,不得再保留外国国籍。

Conclusion

In summary, it seems that Eileen is a naturalized Chinese citizen. It is unclear whether she has retained her U.S. citizenship or expatriated.

If she has retained her U.S. citizenship, she is a “dual national,” meaning that she possesses two citizenships. Current U.S. nationality laws do not explicitly address dual nationality, but the U.S. Supreme Court has stated that dual nationality is a “status long recognized in the law” and that “a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both.”  See Kawakita v. United States, 343 U.S. 717 (1952), cited in U.S. State Dep’t, 7 Foreign Affairs Manual 082.

In contrast, as discussed above, China’s Nationality Law provides that upon naturalizing a person “shall not retain foreign nationality.” Even if Eileen were to retain U.S. nationality, Chinese law would not recognize her as a U.S. national. Under article 3 of the Nationality Law:

The People’s Republic of China does not recognize dual nationality for any Chinese national.

Practically speaking, Eileen probably cannot board a direct flight from China to the U.S. During the departure check, she would need to show authorization to enter the U.S., but authorities would not recognize the validity of her U.S. passport.

Further, other Chinese citizens who have illegally retained foreign passports have been subject to sanctions such as canceling their Chinese passports, household registrations (户口), or national ID cards. See Kristin Huang, Entry Denied: The Identity Crisis Facing China’s Covert Dual Passport Holders, SCMP (Feb. 24, 2018).

Failure to enforce the renunciation requirement in Eileen’s case would raise questions about the transparency of the law and equal treatment under the law.

“You’ve got hundreds of thousands of people in China that really want dual citizenship,” says Susan Brownell, an expert on Chinese sports at the University of Missiouri–St. Louis. “If you give it to athletes, the other people immediately are going to start saying, ‘What about me?’”

While avoiding questions about her nationality, Eileen says, “When I’m in the U.S., I’m American. When I’m in China, I’m Chinese.” Wall Street Journal, Meet Eileen Gu, China’s Skiing Phenom—Who Lives in the U.S. (Feb. 4, 2022). According to that article, “Her embrace of both nations could keep her above the political fray. It also keeps her marketing value high in the world’s two largest economies.”

8 comments

  1. The unknown mystery father, the ski instructor mother becoming a scientist, the grandmother doing You Tube videos for China, the yearly trips back to her “homeland”….it all screams Spy vs Spy. PS. Finally, an article with actual facts and critical thinking on this subject. Thank you.

  2. Gary, would you imagine the Chinese government might have waived the necessity for her to relinquish her US citizenship in exchange for her switching to compete for them? I suspect she’s being coy about it because she still has her US citizenship.

    1. The Chinese government does not have the lawful power to waive the requirement of renunciation. It’s in the Nationality Law, and that law, which binds the Chinese government, doesn’t provide for waivers. Only the National People’s Congress or its Standing Committee can change the law here.

      1. There is no way that a bunch of American and Canadian hockey players (who just happened to play for the only Chinese professional hockey team) would have given up their US or Canadian citizenship just to play on a throwaway team at the Olympics. I don’t know exactly how it went down other than someone (possibly at the highest level) made a command decision. The government obviously has prosecutorial discretion and most like told them that they didn’t need to worry about it.

  3. If Gu renounced her US citizenship before she was 18, she has 6 months after turning 18 (i.e., until Mar. 3, 2022) to regain her US citizenship. See INA section 351(b).

  4. Since Eileen Gu likely has retained her US citizenship, she will be taxed on her worldwide income. China will likely tax her too. That is the price of holding dual citizenship.

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