Migration, Faith, and Hope

I learned this morning at Mass that today is the Journée Mondiale du Migrant et du Réfugié 2013 (Worldwide Migrant and Refugee Day).

And to my shock I discovered for the first time that the Catholic Church has something called La Pastorale des Migrants which is there  "pour aider les chrétiens migrants a prendre leur place en Eglise dans les pays ou ils vivent." (To aid Christian migrants find their place in the Church in the country where they live.)

This is a worldwide service (the Church is international in scope).  In France there is a bishop, Mgr. Laurent Dognin of Bordeaux,  who is responsible for the Service National de la Pastorale des Migrants.  Their website is here and I like very much their logo which has this quotation from Pope John Paul II:







As an American Catholic who had some trouble in the beginning finding her way in the French Church, I wish I had known that this organization existed.  But at least now I know where to orient people who are in the same situation.

Bon Dimanche!

The US, the UK and the EU

At first I thought the headline was a joke:  Obama administration warns Britain to stay in the European Union.   I double-checked and The Guardian is running the same story so there is basic agreement here on what was said and by whom.

In response to news that the UK may hold a referendum on membership in the EU, Philip H. Gordon of the U.S. State Department who was in London recently made it very clear what the United States thinks of that idea.

“We have a growing relationship with the EU as an institution, which has an increasing voice in the world, and we want to see a strong British voice in that EU. That is in America’s interests. We welcome an outward-looking EU with Britain in it.” 

“The EU in particular is such a critical partner for the United States on all of these global issues and therefore we also value a strong UK voice in that European Union. Britain has been such a special partner of the United States - that shares our values, shares our interests, and has significant resources to bring to the table. More than most others, its voice within the European Union is essential and critical to the United States."

Frankly I have never given a moment's thought to what the U.S. thinks of the EU.  Sure, I am vaguely aware that some right-wingers in the U.S. are pretty contemptuous of it but since I know many Europeans who have equal contempt for the American Right, I figured it was a draw and safe to ignore.  I've noticed however that when it really matters the U.S. and the EU seem to work pretty closely on security issues and migration.  

But the above statements by Mr. Gordon are practically a declaration of love.  The EU is not only a fine institution with a "growing relationship" with the US but it's at the level of "critical partner."  All Europeans should go out tomorrow and buy themselves bigger hats.  

All except for the Brits of course who only get one if they agree to stay on the team.

Citizenship Policy and Nation-State Security

Patrick Weil talks about three dimensions most commonly invoked when people talk about citizenship:  the affective, that sense of belonging and attachment;  the political/civic which means participation in the community;  and the legal, the "formal linkage" that is each individual's direct relationship with a nation-state.  The last two are tangible, manifested by concrete acts, formal processes, and papers like passports and voting registration cards.  But the first, the affective, isn't tangible at all.  No one can ever really know what's going on inside someone's head.  It is certainly possible to have a formal tie to a state with absolutely no particular affection behind it.  The reverse is also true - a person can have a deep and abiding love for a country without ever formalizing the relationship.

Individuals have strategies for making decisions about either the citizenship they already have or the ones they would like to obtain.  This is, of course, of deep interest to them personally but it is also of great interest to nation-states.  Does it matter that Americans abroad are taking on other citizenships (or renouncing) or that naturalizations in the U.S. are very low?  Of course it does.  Just as it matters very much when a high-profile figure like Monsieur Depardieu publicly accepts a passport from another state and says, "I am a citizen of the world."  It's not something that people are neutral about and it is quite naturally of deep concern to governments.  It changes how people view a citizenship in particular (or the idea of citizenship overall) and it impacts how states behave at home and abroad.  Dual citizenship can be complicated for an individual with all those intersecting rights and responsibilities - it is even more complex for states that must then make policy in response to it.

Why?  Because for one thing it has an important impact on the raison d'être of the state:  national security.

I came across this Master's thesis the other day when I was researching something else.  It's called Denationalized Citizenship Theory:  What is the role of citizenship theory in Homeland Security? by
Cherie A. Lombardi (Naval Postgraduate School in Monterrey, California, December 2011).  I don't have a link for it but it is available on-line as a PDF and you can Google it.  It's an interesting read not only for its synopsis of various formal theories of citizenship (and good links and books) but because the author gives some practical examples of how states struggle domestically and internationally with dual citizenship in a globalized world.  The author also had some recommendations for the U.S. security community based on her research one of which was a pleasant surprise for me as an American abroad.

Ho does citizenship theory and policy play out domestically?  One scenario Lombardi explores is the case of a dual Pakistani-American citizen who wants to work for the FBI (Federal Bureau of Investigation - you could call them the national police force in the U.S.) "But, before he is told what day he will start his new job, he is presented with one last form to complete and sign, a loyalty oath for dual citizens attesting that the United States of America will receive his primary loyalty while he works for the U.S. government."  So the FBI's policy here (formulated in response to de facto acceptance in the US of dual citizenship) is that duals may serve but they must declare themselves as being loyal to (and only to) the United States of America. If Americans weren't allowed to be duals then such a thing would be superfluous. Right?

Even more interesting is that, while the FBI has made such a policy, other U.S. government agencies don't necessarily have the same requirement.  Her research revealed:

Open source information shows that the same secondary loyalty oath (this is the FBI) (“secondary” due to the fact that it is an oath to be signed in addition to the required oath of any U.S. civil servant when starting the job) is required by the Department of Justice (DOJ) and the Drug Enforcement Agency (DEA) whenever a dual citizen wants to join the organizations but, a call to the human resources section of the National Security Agency (NSA) revealed no such loyalty oath is required of dual citizens seeking employment in that organization. 

What this says is that the U.S. government doesn't have one particular policy that applies to dual citizens in the U.S.who wish to work for the Federal government.  Instead this appears to be managed agency by agency and apparently some choose to not have any formal policy (though you cannot tell me that they are indifferent to the citizenship(s) of their employees.) 

"This situation symbolizes the lack of any formal consensus regarding dual citizenship, even among federal agencies, let alone the entire homeland security community."

Moving from the domestic to the international Lombardi talks about the changing context which is in part about the growing acceptance by so many countries in the world of dual citizenship.  Latin America, for example, changed its citizenship laws to allow it and that had a huge impact on the ability of immigrants to the U.S. to retain their prior nationality even after becoming naturalized U.S. citizens.  

But the other part which is equally significant is the ability of those duals, thanks to advanced communication technologies, to maintain a strong link with their other country of citizenship.  As an migrant myself from the U.S. I have been personally rather grateful for  these things because they have enabled me to maintain some contact with my home country and even, if I choose to do so, to be occasionally active in political life there.  I am willing to admit, however, that there are some situations where this could be problematic.   

Let's imagine, for example, a situation where one country was undergoing some sort of internal strife and duals used the host country as a base to support one side or another - even to the extent of trying to get  the host country or other country of citizenship to do something about it.  Lombardi points out that such a situation has in fact existed for years in the U.S.  Cuban-Americans have been very active in U.S. politics and have tried to influence how the U.S. manages its relationship with Cuba.  In France during the recent election some French politicians tried to win votes with the French-Armenian population by supporting some of their claims.

What is legitimate here and what isn't can be a tough call.  Duals are still citizens of both countries and have a voice and the right to use that voice in both.  Where is the line?  

The question is more than just academic for all parties.  Immigrants and duals can get into real trouble here with one or the other government.  For immigrants and duals in the U.S. Lombardi cautions them because:  

Currently, under the PATRIOT Act and the Immigration and Nationality Act,  many of the activities that many immigrants would consider only to be assisting the political opposition, or freedom fighters, back home fall into the legal category of providing material support to terrorists, which renders them ineligible for most immigration benefits and status in the United States.

That's a policy that effectively limits what a dual can do in support of the home country (or elements within it).  Aside from the law I think there is a kind of moral contract operating here as well.  When it comes to the political activities, there are lines most of us do not cross and things that we do not do as a dual (or as a legal resident in another country far from home) because one suspects trouble - either potential legal problems (even if you are unsure of the exact policy of the state in question) or the moral outrage of the citizens of one or the other country. 

I would argue that states do have a legitimate interest in those activities but Lombardi is right - it is not always so clear for the individual.  Another example (just for fun):  Let's say someone is a French-American dual citizen and sends money and offers open public support to organizations in the U.S. to maintain the death penalty?  What if this person had some contacts in the French government and tried to lobby politicians and bureaucrats to either support the U.S. internationally or turn a blind to its activities?  I'm sure that death penalty supporters in the U.S. would be thrilled.  But would the French nation have a legitimate problem with that kind of behaviour?  I am not sure what the French government (or the EU) would say but I'm pretty sure the French people I know would be furious.

Lombardi completes her analysis with some recommendations.  I won't go over all of them here (gives you an incentive to read the paper) but I was surprised by this paragraph buried in the final pages of the thesis:

"The other lesson to be learned from all the discussion about how sending nations are trying to use their immigrant populations to affect U.S. policy is that the United States also has its own migrant population living in other nations around the world, and they too may serve as America’s voice in foreign lands. While it is beyond the scope of this thesis to recommend the use of Americans overseas to influence the policies of other nations, this is a call for the homeland security community to recognize and consider U.S. citizens living abroad as a resource for information collection and dissemination as well as contacts within other nations. Though the international aspect of homeland security is mentioned in both the National Security Strategy and the National Strategy for Homeland Security the role of U.S. citizens living abroad appears under-recognized and under-utilized by the homeland security community." 

May I humbly suggest that propositions of this nature must await the resolution of the American Diaspora Tax War of 2012/2013?  Frankly, I don't think we are in the mood right now.  :-)

Still, it might be a basis for negotiation and it sure was nice to get a nod.

Three Cheers for the Taxpayer Advocate Service

And the American Taxpayer Advocate Service, our voice at the U.S. IRS, has done it again - come out swinging on behalf of Americans abroad.

In their 2012 Report to Congress (and many thanks to ACA for the link on Facebook) they once again take issue with how the IRS is conducting its business with respect to U.S. citizens living outside the U.S.  One section concerns folks who were unaware of a little known filing obligation called the FBAR (Form TD F 90–22.1, Report of Foreign Bank and Financial Accounts).  Failure to file can lead to fines of up to 10,000 USD per account.

As the word has spread of this requirement many Americans abroad are living in a state of panic and fear.  Confusion reigns. There is no clear path to compliance even for those who would be more than happy to provide the information.  It's a real mess.

 The IRS’s Offshore Voluntary Disclosure Programs Discourage 
Voluntary Compliance by Those Who Inadvertently Failed to Report Foreign Accounts

TAS says that the IRS has turned this situation into a real nightmare by treating people who made an innocent mistake (many of them lower or middle-income people aka "The Minnows") the same way they treat those who willfully and criminally evade U.S. tax and reporting requirements (the rich tax evaders aka "The Whales").

"As discussed in prior reports, these programs applied a resource-intensive, burdensome, punitive, one-size-fits-all approach designed for “bad actors” to “benign actors” who inadvertently violated the rules."

TAS says that IRS actually discouraged people from fixing the problem themselves (by just filing the damn missing 1040's and FBARs which is called a "quiet disclosure") once they became aware of the requirement by insisting that the non-compliant needed instead to go into one of the special programs for tax evaders (OVD) which meant hiring lawyers and going through a very complicated, bureaucratic (and dare we say it) punitive process.  Talking to some of the people who did I can only say that I am surprised that any of them are still sane.  

I agree with TAS 100%.  I remember reading that IRS FAQ which had these encouraging words,  "Those taxpayers making “quiet” disclosures should be aware of the risk of being examined and potentially criminally prosecuted for all applicable years."  So if you made an innocent mistake and try to make it right, we will still consider sending you to jail?  How comforting.

That and the horror stories coming out from all around the world of people's experiences in the OVD program had a chilling effect on everyone else who were still trying to determine what to do.  People became too afraid to do anything lest they run the risk of losing their houses, pensions plans, life savings and so on.  TAS is right again.  If the goal of the IRS was to get people to voluntary comply, they blew it.

And TAS is once again right on the money when they talk about the new IRS compliance program for non-resident non-filers.  Again the language is very unclear.  Apparently one can qualify if one is "low risk" but they don't define what that is.  That's not much help and given what went on before, no one trusts them anymore.  I would be very surprised if they get many takers.

And for the cerise sur le gateau (cherry on the cake) TAS announces in the report that IRS initiatives to communicate and educate people about their filing/reporting obligations are being abandoned.  They are giving up.  The FBAR Compliance Initiative Project has been shut down.  The FBAR Stop Filer Program never got off the ground and they aren't working on it anymore. 

"In addition, the IRS has not conducted in-person presentations about the FBAR filing requirements in foreign countries, even in countries where it has a tax attaché and a significant number of residents are required to file."

Excuse me?  I'm not sure I read that correctly.   I'm still meeting people here in France who have no clue about FBARs.  Welcome to a globalized world.  Americans citizens and Green Card holders move in and out of the U.S. all the time.  Immigrants are still coming to the U.S. and they had lives before they crossed that border which included bank accounts.  Are they really saying that no effort is going to be made so that these folks don't end up in the same pile of merde as those of us who came before? 

"This approach sends the message that the IRS will spend resources to punish, but not to educate, U.S. citizens abroad."

Perhaps homelanders will accuse me of being too negative  (when they aren't calling me a cowardly, traitorous, guilty until proven innocent, potential evil tax-evading Benedict Arnold) but that is exactly the message I am getting from the homeland government.

And the only bright spot I can point to today is that there is one lonely voice in that government that sees the situation clearly and is trying to get it fixed.  From the bottom of my heart, TAS, thank you.

Pickpockets

I was under the Eiffel Tower last week with a friend who clearly was far more observant and aware of his surroundings than I was.  As I was strolling along oblivious to anything but Eiffel's majestic structure, he was paying attention and saw the team of pickpockets working the crowd and told me to watch my purse.

Some days I really wonder if I should be allowed to walk outside my home without an escort.

Then yesterday evening I came across an article and a video on-line at the New Yorker featuring the work of the pickpocket Apollo Robbins of Las Vegas, USA.  The article by Adam Green (a very good read) can be found here.

And here is the video in which Mr. Robbins gives us all a practical demonstration of his skill.

Citizenship - Who Decides?

A few months ago I was walking down the street to the train station when a French woman came up to me and struck up a conversation.  At that time it was clear that I was going through chemo and, as it turned out, so was she.  Nice lady and we exchanged phone numbers. In the course of our conversation she told me something I found rather fascinating:  Through she spoke no English (or Spanish) she claimed to have been born in the United States in one of the southern states (Texas, I think).  However, her family left the U.S. when she was very young and she had never been back, not even once,  in her entire life.

Owing to the oddness of American citizenship law - that very radical form of jus soli (citizenship via place of birth) that the U.S. practices - that woman is legally just as much an American citizen as I am.  If she chose to do so, she could ask for and receive a U.S. passport, live and work in the U.S., and vote in U.S. elections.  A simple matter really since all she would need to prove this would be a copy of her birth certificate - something that can be ordered on-line from many jurisdictions in the U.S.for a mere pittance.

She was not unaware of this fact.  Her words were, "Je peux" (I could) be an American citizen if I wanted to be one, though she really didn't see any interest in pursuing it.  For her this was a possibility, a potential future, an avenue that she had the right to walk down if she chose to do so.  She was both right and wrong.  Right in knowing her rights.  Wrong in thinking that it was entirely up to her.  By American law she is an American citizen just as she is a French one.  One by just soli (right of soil) and the other by jus sanguinis (right of blood).  This is a fact, not a choice.

But in all her years the U.S. never reached out to embrace her and if you stopped any American on the street in homeland America and asked him or her whether this charming Frenchwoman was a full member of the political community called The United States of America I suspect the answer would be a resounding, "of course not." And she would agree with him.  For both sides something more would be needed - an act, for example, that would demonstrate a desire, a willingness, to be a part of that community.  A desire that clearly she did not have.

So here we have a rather interesting situation:  An American in the homeland would say that she is not an American.  She herself would concur since she sees herself only as someone with the potential to become one, not a full-fledged citizen.  But from the point of view of the U.S. government (and one has to wonder if the French government would agree) she is both American and French.  This means that both have rights over her person.  End of story.  But in all her years, no effort was ever made by the U.S. government to exert sovereignty over her.  In fact, I doubt they know she exists though clearly a time is coming soon when her French bank will know and will, if I understand the law correctly, inform the French government of this fact.  I have to wonder what all this revealing of America's "Accidentals" living in the 190+ countries of the world will mean.  Surely for some it will be a pleasant surprise.  For others not so much.

But it did raise the question in my mind of what would happen if a sufficient number of people outside the U.S. upon being informed of their status as U.S. citizens simply stood up and said, "This is rubbish" and rejected any attempt by the U.S. government to exert sovereignty over their persons?

Does the individual have the right of refusal when it comes to citizenship?  A person can renounce but in renouncing (and going to interviews, filling out the paperwork and paying the applicable exit taxes) is that person not admitting that this other state has sovereignty over him or her?   In the end, in this conflict of dueling citizenships who would decide and is there any recourse for those who don't wish to be considered the citizen of a foreign state to which they have the most tenuous of connections? Is there a higher law or custom that would apply?  Are there any limits to the ability of a state to ascribe nationality/citizenship to an individual?

All good questions.  Just for fun and because I'm feeling perky and curious I tried to answer them.  Here is what I came up with.  As always feel free to correct me if you find errors or disagree.

Does the individual have the right of refusal when it comes to citizenship?

The citizenship laws of nation-states are for the most part a purely domestic matter.  The Hague Convention on Certain Questions Relating to the Conflict of Nationality Law says very clearly:

Article 1.
It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.

Article 2.
Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.

Article 3.
Subject to the provisions of the present Convention, person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses.

So the short answer to the question, "Does the individual have the right of refusal when it comes to citizenship?" is a clear "no."  If the French decide you are French under the French citizenship laws then that's the way it is.  A person can, of course, renounce but citizenship/nationality is clearly a status that the individual has no control over (unless of course he or she obtains it through naturalization).

Are there any limits to the ability of a state to ascribe nationality/citizenship to an individual?

Now this is where it gets interesting.  As a practical matter it is clear that there are limits.  The United States of America cannot simply decide to turn the entire French nation into American citizens with the stroke of a pen.  I'm not sure what principle this would defy but it seems that it might fall under one of the exceptions in Article 1 above that calls for consistency with international conventions and customs.

One very interesting article I found on-line talks about (and criticizes) something called the "genuine link" doctrine that was used (and perhaps still is) to limit the right of a state to ascribe nationality/citizenship to an individual.  It says that there must be some sort of legitimate attachment in existence before a state can claim someone as "theirs."  And this link is?    “A legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.”  In my mind this raised more questions than it answered.  Going back to the Frenchwoman I talked about above, the legal bond exists but there is no real attachment behind it.  Or is there?  Is the mere fact that she was born on U.S. soil sufficient in the eyes of the United States to create a permanent and abiding attachment?  Given that she was aware of her rights, is it unreasonable to say that she should also be aware of her duties even if the connection is inactive?  To put it another way, should she be held to the obligations of that yet to be actualized citizenship and pay, for example, U.S. taxes?  Or, for another example, could she called upon to defend the U.S. and her Constitution if these things were under attack?  Could she be considered a traitor if she didn't?

What I gathered as I read is that international law around citizenship is practically non-existent.  Nothing is explicit. The only thing that states seem to be able to agree upon is that jus soli and jus sanguinis are the two customary methods by which citizenship is transmitted and that's about it.   If you have information to the contrary I would be most interested in knowing it.

Can states enforce their sovereignty over its nationals wherever they may be?

Final question and the answer is 'yes" and they do it all the time if they are sufficiently motivated and an opportunity presents itself.  States may not be able to immediately force compliance in some cases if the individual is living in another country but they can and do (if they are so motivated) go after that person or detain him at the border if he or she tries to enter the other country to visit family or just to visit. 

The excellent Dual Nationality FAQ has these cautions to offer naturalized and "Accidental" citizens who enter another country of nationality.  The example here uses the example of U.S. birthright or naturalized citizens but what he says is equally true of other countries as well.

"So, even after becoming a naturalized US citizen, you should still check carefully with diplomatic officials both of the US and of the "old country" before going back for a visit. If you get arrested there for draft evasion, for voicing opinions about their government while you were in the US which are considered taboo in the old country, or for whatever other reason -- or if you find yourself forced into their armed forces -- you may very well find that the US can't help you too much, because the other country will insist you're one of their own citizens and that the matter is therefore none of the US's $@&%# business.

This same word of caution may also apply to people who were born in the US, but whose parents (or even grandparents) came from somewhere else. Many countries have laws conferring citizenship on the basis of the citizenship of one's parents or grandparents (even the US has a limited law of this kind). I personally knew someone, some years ago, who got into trouble in South Korea because his father was born in Korea. Even though my friend was born in the US and had never claimed or believed himself to be a Korean citizen, he had to cut short his visit to his ancestral homeland in order to avoid being drafted into the South Korean army."

So there you have it.  Rather chilling isn't it?  I will stop there and get ready to take my train into Paris.

As always your comments would be most welcome.

The FATCA Forum

It is a very serious matter when a foreign country in this case the United States tries to usurp certain powers over other countries and its citizens, or the people and permanent residents of those countries. 

The Honourable Sinclair Stevens
Progressive Canadian Party/Parti Progressiste Canadian
  

This man certainly knows how to get to the crux of the matter because fundamentally this is what the United States of America is trying to accomplish with FATCA, the Foreign Account Tax Compliance Act. The question, of course, is whether or not the other countries of the world are going to let them get away with it. (Oddly enough the French I've talked to seem to think the Americans are on to something with this law. Go figure.)

A few weeks ago a forum on FATCA was organized in Toronto, Canada and hosted by the Canadian Progressive Party.  There were many great speakers including Peter Dunn of the Isaac Brock Society and James Jatras of Repeal FATCA. 

Nine videos of the event can be found here:  FATCA Forum.

All of them are excellent and I encourage you to have a listen and to pass them along.

What a pleasure to see a gathering where the subject of FATCA is taken very VERY seriously indeed.  And where the issues, the really important ones like sovereignty, civil liberties, human rights and international law, are so eloquently discussed.

I thought Allison Christians' of the McGill Law School (blog here) talk was particularly fine and so I am re-posting it here.  I learned a great deal (tax treaty override? I had no idea) and I loved her passion.   She does a fine job of explaining why something that sounds so reasonable to many (catch those "rich tax cheats") is pure poison, a legal nightmare, which will have an impact well beyond the few people the law was ostensibly designed to catch.  I wonder if Americans back in the homeland understand that this American law (FATCA) is basically telling other countries (like Canada) to break their own laws or else.  She also raises the question of whether or not FATCA could be considered an impediment to American citizens' freedom of movement (their ability to move out of the U.S. and around the world) and suggests that a U.S. constitutional scholar have a look at this.  And finally she discusses FATCA and international law.  Fascinating stuff.