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Monday, May 11, 2015

The Making and Unmaking of a Citizen in Japan

A few weeks ago a blogging confrère left a link to his site Becoming Legally Japanese.

I have had a look since and I recommend the site to you if you have an interest in citizenship law.  The site is in English and has good information on how to become a Japanese citizen, and testimonials about why people have taken this step - the latter, of course, being the more interesting question.  You can also read this Flophouse post by an American emigrant and long-term resident here in Japan who is also On the Path to Citizenship in Japan.

Citizenship in a democratic nation-state is an odd beast.  It retains some characteristics of an older status - that of subject - in that it is a personal status between an individual and a state (or a monarch).  But unlike subjecthood, it is (in theory) a status that a person chooses and can be renounced unilaterally.  A citizen (in theory) does not need the permission of his state to sever ties with one country and attach himself to another.

The reality is more complex than that.  Often, there are conditions to be satisfied before a person can change allegiance.  Some sending states require that another citizenship be obtained prior to renouncing.  This is meant to prevent people from becoming stateless persons;  the ideal being that every individual must be attached to some state, somewhere in the world.

On the other side, the receiving country has more power.  There is no absolute right to naturalized citizenship in any nation-state I know of.  Governments and their citizenry can and do place conditions that must be met before they allow an individual to become a full citizen.  In short, nation-states can be very selective about whom they accept for full membership.  In those conditions we find a blueprint of sorts for what that nation-state thinks is the "ideal citizen" and what they believe their citizenship means.

One of the conditions of Japanese citizenship is that the new citizen renounce all other citizenships.  The Land of the Rising Sun is well known for its rejection of dual or multiple citizenships.   To be Japanese is to have allegiance to one state, Japan, and no other.  Since the trend in citizenship law in the world is toward acceptance of multiple citizenship (even Germany has blinked), there is speculation that Japan, too, will change its ways.

Perhaps.  And I say this because I am discovering that the current system is far more flexible than people think.  There is the law and then there are the "facts on the ground."  There are Japanese citizens in France who have become French citizens.  The Japanese embassy in Paris is aware of this.

According to my source, they don't seek them out, but they will investigate if it comes to their attention - a Japanese citizen, for example, who has lived a very long time in France and cannot produce a French residency card when he visits the consulate for some reason or another.  Since France and Japan do not exchange citizenship databases there is no easy way for the Japanese government to know that a Japanese national has become a citizen of the French Republic, or of any other country for that matter.

Where single citizenship can be enforced is when a person applies to become a naturalized Japanese citizen.  The authorities can ask for documentation and proof of renunciation of all other citizenships, but even that isn't a sure thing.   The Japanese authorities do make allowances for subjects of countries that do not allow for unilateral renunciation.  Also, in some cases they have looked the other way unless the dual citizen is "outed" in some way so that it simply cannot be ignored.

So Japanese citizenship law is clear on the matter of dual citizenship, but the application of the principle is, well, a grey zone.

And that makes this post American had to forfeit naturalized citizenship due to hiding his lack of relinquishment up on Becoming Legally Japanese very interesting.  Nation-states make citizens and they can unmake them, too.  (For an excellent read about this I recommend Patrick Weil's  outstanding  The Sovereign Citizen: Denaturalization and the Origins of the American Republic.)

What is fascinating about denaturalization (taking away a person's citizenship) is that nothing shows more clearly the difference between birthright and naturalized citizens.  In democratic nation-states it is generally very difficult to take away the citizenship of someone who was born with that citizenship.  Usually it requires proof of some sort of extreme wrongdoing incompatible with citizenship and even then it's not a simple process. At least, not in our time.

Naturalized citizens, on the other hand, can be unmade more easily and the most common method is to prove that there was some sort of fraud involved.  Even Hirsi Ali who was an elected member of the Dutch Parliament was not immune to charges that she obtained her Dutch citizenship fraudulently.

And that was the charge against this American emigrant to Japan who applied for Japanese citizenship, received it and then had it revoked.  To make matters worse, the authorities did not reinstate his previous status, that of Permanent Resident;  he was downgraded to Long-Term Resident. (See this site for a summary of the difference between the two.)

I will stop here and let you read the story for yourself.  I would appreciate comments or corrections from those who know more than I do about Japanese citizenship law.  It is an interesting case on so many levels, and I have the feeling that there is more to the story.  In particular I was curious about his rationale for not taking the steps to relinquish his US citizenship.  Note that both FATCA and the US Exit tax are mentioned in the article.


Inaka Nezumi said...

I don't know anything about the story other than what is written there, but it sounds like technically, they didn't strip his citizenship away, but rather pressured him into renouncing -- perhaps by threatening jail time or something? A fine point, perhaps.

Regardless, it seems like he got himself into a precarious position legally, which he might have gotten away with under other circumstances but which left him vulnerable when his situation drew attention for whatever reason it did. Something to bear in mind when someone tries to argue (about any legal topic), "Oh, you worry too much, don't be so anal. They've never enforced that before." Well, they can if it to their convenience to do so -- and it probably won't be to yours.

Inaka Nezumi said...

As for not relinquishing US citizenship, I can understand why someone might wish to be a dual citizen if it were allowed either explicitly or (so they thought) tacitly. What I don't understand is why he thought it would be a good idea to retain US citizenship, but stop filing US taxes. Maybe that was also something he thought he could get away with at the time because of a belief that "they never enforce that"?

Victoria FERAUGE said...

@Nezumi-san, For fraud I would imagine that he could have been jailed or deported.

You make an excellent point about precarity. In any situation where a person or an entity more powerful than you appears to be "tolerating" or ignoring deviations from the law, be very very careful. The fact that they choose not to enforce it, does not mean that they won't.

This is even worse in situations where it is impossible to fully comply with the laws. This means that citizens live in fear - fear that a law will be selectively applied or an obscure law brought to light in order to punish.

井上エイド said...

I found this paragraph of yours to be most interesting:

"What is fascinating about denaturalization (taking away a person's citizenship) is that nothing shows more clearly the difference between birthright and naturalized citizens."

There is one protection a naturalized citizen can take to prevent their post-birth acquired citizenship from being taken from them: get rid of all your other citizenships.

Most countries have signed the UN pact on preventing statelessness, meaning they will commit no action that causes somebody to become stateless.

Now, whether they will fine or imprison you for fraud is another matter. But they won't/can't take away your citizenship if it's your only citizenship, even if you somehow obtained it fraudulently.

In fact, Japan's only provision for jus soli (obtaining Japanese nationality by just being born in Japan) exists only because of the statelessness-prevention acts by the United Nations:

If a baby is born in Japan, and for some reason it can't be determined what it's nationality should be (due to a loss of the parents, etc) or it can't receive a nationality from elsewhere, then that baby will become Japanese.

Thanks for the great write-up!

Victoria FERAUGE said...

You are very welcome - you have a good site and I hope my readers will find it as interesting as I did.

You make a very good point about the conventions concerning statelessness. Yes, there is some safety in not having another state to go to provided that the state has signed the convention. But that would not stop a country from revoking citizenship - it would just mean that a former US citizen who lost his naturalized citizenship could not be deported back to the US, right?

Or at least, that's what I thought until I read this in the US Foreign Service Manual FAM 1215 STATELESSNESS RESULTING FROM LOSS OF NATIONALITY:

d. Expatriation will not necessarily prevent a former citizen's deportation from a foreign country to the United States, nor will it necessarily exempt that person from being prosecuted in the United States for any outstanding criminal charges or held liable for any military obligations or any taxes owed to the United States. The fact that a person has been rendered stateless does not serve to nullify the individual’s expatriation if the renunciation is done voluntarily and with the intention to relinquish U.S. nationality.

I interpret this to mean that they will happily agree to receive a former US citizen under certain circumstances. Which would make that individual a stateless person in the US without the protection of the rights normally accorded a citizen.

Does anyone have a different interpretation?

Victoria FERAUGE said...

Oh and I forgot section E of the same document:

e. In making all these points clear to potentially stateless renunciants, the Department of State will, nevertheless, afford them their right to expatriate. We will accept and approve renunciations of persons who do not already possess another nationality. It should be noted, however, that if a foreign state deports such individuals, he or she may find themselves deported to the United States, the country of their former nationality.

井上エイド said...

There's precedent for the cases you mention in the FAM. Joel Slater was an American who renounced his U.S. citizenship for political reasons while in Australia. Apparently, Australia didn't want to have anything to do with him, and much to his chagrin, deported him to the country he hated and tried to forever distance himself from.

He recently passed away, but before he did, an executive order restored his U.S. citizenship (something that's not supposed to normally happen -- they give you a lot of warnings the renunciation is irrevocable, irreversible, and permanent when you do it)

Victoria FERAUGE said...

Very interesting. I will look for more info on Mr. Slater. I would love to know what the reasoning was behind their reinstating his citizenship.

Another example (but not quite the same) are the cases where Americans took on another citizenship at a time when to do so generally meant losing US citizenship. Lynne Swanson in Canada, for example, was told very firmly by the US consulate about 40 years ago that she was losing her US citizenship irrevocably when she took her oath to the queen.

But US citizenship law evolved and by the early 1990's the State Department following a court ruling changed its rules and now taking on a second citizenship does NOT mean revocation of US citizenship unless the intent was to relinquish it.

Which means that Lynne and others like her are in an interesting position. Lynne contends that she is NOT a US citizen and hasn't been for 40 years. The view on the US side is a bit more ambiguous. Looks like those who got CLNs at the time are in good shape. Those who didn't now need to prove a negative - that they are NOT US citizens or persons. I hear that some are successful at getting backdated CLNs.

井上エイド said...

Regarding Lynne Swanson, I believe the most famous case which refers to that example situation is the Supreme Court one, Vance v. Terrazas.

Because of that case, it basically means the only way you can lose your U.S. citizenship is if:

1. Commit an act that qualifies for losing your citizenship (for cases of relinquishment, not renunciation). This usually means voluntarily (not involuntarily or automatically) acquiring another citizenship for 99% of cases.

2. Report that act to a overseas consular officer, while both knowing that this will cause you to lose it and wanting to lose it.

Have a nice day!

Michael Putman said...

Interesting site, especially the point about the conservatives in Japan being more open to a civic nationalism that the left is.

As to the FAM paragraph, I read it to mean that if you are a stateless ex-USC, Uncle Sam can't promise you that a given foreign state won't get tired of looking at you and deport you to the States anyway. And then, what is US immigration/customs supposed to do? Send you back to...where? You'd only get re-deported. Moral of the story: don't be stateless. It didn't finally work out for Che; it probably won't work out for you either.

Victoria FERAUGE said...

@井上エイド, Thanks for the link to the court case. It changed so much. I went down to the US embassy in Paris just prior to their changing the rules and they pyt the fear of God into me - don't take French citizenship, they said, or you will lose the US one. Just a couple of years later they changed their tune (they still don't recommend being a dual though :-)

@Michael, I just finished reading a book by Glen Roberts. He renounced in 2009 I think it was in Paraguay and became stateless. He wanted to live in the world with no attachments to any state, he said. That he could be deported back to the US does not seem to bother him. He's been commenting on the rise in renunciations of US citizenship. Let me see if I can get that video up in the next day or so.

井上エイド said...

You might also want to take a look at Rogers v. Bellei which codified, in U.S. law, that jus sanguinis < jus soli citizen for the United States.

Note that while Congress changed the law in 1978 so that what happened to Mario Bellei couldn't happen to someone in 2015, the U.S. Supreme Court viewed that (still the latest ruling on the matter) the previous law was not unconstitutional, thus in theory such a law could be re-instated by Congress.