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We have discussed how the USA’s extraterritorial laws are a bad precedent, precisely because one day in the future, other powers may seek to imitate the USA. A new law in China does this. But according to the author, Mary Hui, China’s extraterritorial legal ambitions are unprecedented:
The new law is also expansive in another unprecedented way, even by the standards of China’s opaque legal system: it covers not just Hong Kong residents, but also anyone living abroad. That means foreign nationals, the Hong Kong diaspora, and Hong Kongers studying or working abroad.
The new law is “asserting extraterritorial jurisdiction over every person on the planet,” wrote Donald Clarke, a professor of law at George Washington University. Alarmingly, the law has an even broader reach than mainland Chinese criminal law, which only holds a foreigner liable for a crime committed outside of China if the effect of that crime occurs in China. Hong Kong’s nationals security law has no such limitation, Clarke explained. “If you’ve ever said anything that might offend the [Chinese] or Hong Kong authorities, stay out of Hong Kong.”
Apparently, Ms. Hui hasn’t heard of FATCA.
I had suggested that China would create CHATCA, but I guess they decided to start with a law making it illegal for anyone to criticize the government of China (which I am not doing, if anyone asks).
It’s about “ConFORMity”
Attention those seeking a back-dated CLN based on a relinquishment … Say "Good Bye" to the Old DS-4079. It's been replaced with a new version. pic.twitter.com/z7md6rESbH
— U.S. Citizen Abroad (@USCitizenAbroad) June 28, 2020
As you know, all interactions with the United States Of America are exercises in “ConFORMity”. Americans do love their forms. Hence, when the United States issues a new “form”, it’s important to pay close attention.
To the US Government, the issuance of a new Form is similar to a family experiencing the arrival of a new baby.
Forms, Culture And The Culture Of Forms
A form revision is an important moment in the United States. It’s often an opportunity to create new penalties or to increase old penalties.
Future “Form 4079ers” need to take careful note. What does this mean for future relinquishments?
Past And Future “Form 4079ers”
The DS-4079 has been an important part in the life journeys of those individuals, who were “Born In The USA”, but wanted a CLN (“Certificate Of Loss Of Nationality”), based on a back-dated relinquishment. Some past “Form 4079ers” have been successful and some not. Past “Form 4079ers” have learned that their freedom often depended on the presence or absence of one and only one word. Only “Form 4079ers” understand “The 50 Shades Of Intention”. Is expectation the same as intention? Does an understanding of the consequences equate to an intention? When is uttering the words “I renounce”, as part of a foreign naturalization, the same as the intention to relinquish US citizenship? When not? These are some of the most important questions of our age.
The Previous Form DS-4079
The Brand New Form DS-4079
The Brock Project
Are the old and new Form DS-4079s different in any significant way? If so, how?
CIRCA 1993: This fascinating article appeared in the Financial Post in 1993. Reasonably accurate and notes that some "U.S. exiles" may have thought they relinquished US citizenship by naturalizing as Canadians – but perhaps not. Notice that there was a US tax attache in Ottawa. pic.twitter.com/2KH555dfY5
— U.S. Citizen Abroad (@USCitizenAbroad) June 27, 2020
Somebody recently drew my attention to this 1993 article, that appeared in the 1993 Financial Post. Although it doesn’t provide much, it is surprising that this appeared in the Financial Post. The article appears to be reasonably accurate. Of most interest, is the discussion about people who naturalized as Canadian citizens believing that by doing so they had relinquished their US citizenship. Relinquishment is an issue of the person’s intention when he became a Canadian. Did the individual naturalize as a Canadian citizen, with the intention of relinquishing US citizenship? Notice also that (at that time) the IRS had a phone number in Ottawa that one could (presumably) call. Do you feel safer with the IRS on Canadian soil?
IRS Direct: 613 238 5335 (this is currently the “Emergency” phone number for the US Embassy in Ottawa. Yes, it makes sense that any US tax issues would be an “Emergency”).
The title is quite prescient. In 1993 Americans abroad were not “Exiles”. In 2020 US policy has turned many of them into “Exiles”.
What follows is a pdf of the article (should anybody have any interest in it).
In response to the global COVID-19 pandemic and in line with the Canadian government’s call to increase social distancing, the U.S. Embassy and all Consulates General in Canada are suspending all routine American Citizen Services from March 23 through August 4.
We will resume routine American Citizen Services as soon as possible but are unable to provide a specific date at this time.
The Embassy and Consulates will continue to provide emergency consular services to U.S. citizens.
Once upon a time…
Britain was a great country. Now, Britain has adopted the “Gentiloni Doctrine“. You may recall that the doctrine includes:
1. The United States has the sovereign right to declare who its citizens are; and
2. The United States has the right to impose worldwide taxation on those citizens.
— U.S. Citizen Abroad (@USCitizenAbroad) June 19, 2020
— U.S. Citizen Abroad (@USCitizenAbroad) June 14, 2020
This is Part 8 of my series on US extraditions. In Part 7 I discussed the expansion of the range of crimes for which the United States is seeking extradition. I suggested that extradition for tax and form crimes was (at the very least) possible (although I think at the present time unlikely). But “unlikely” does not mean impossible. The purpose of this post is to describe a case where the United States is seeking extradition of a former US citizen for reasons related to the expatriation process.
The previous posts in the extradition series are:
Part A – The facts as alleged
Who is Mr. Tinkov?
— U.S. Citizen Abroad (@USCitizenAbroad) June 14, 2020
Notably Mr. Tinkov was apparently not living in the United States but was living in London, UK. The evidence suggests that he had not lived in the United States for many years.
Interesting Council Of Foreign Relations article on extradition and various alternatives. Note the difference between "covered offenses" and "dual criminality". https://t.co/glOxu13Fm3 pic.twitter.com/bdiVMW7BJB
— U.S. Citizen Abroad (@USCitizenAbroad) May 29, 2020
Part 6 of this series of posts discussing extradition treaties ended with
“Big picture view: Leaving aside the legal technicalities and the nattering over matters of form/substance, etc … It seems clear that from a US perspective the purpose of an extradition treaty is to export US law to other lands. Since Canada is the United States’ biggest trading partner, doesn’t it seem reasonable that Canada should be the export destination of the largest number of US laws?”
This understates the problem. Extradition treaties are being used to transport individuals to the United States, who may have never set foot in the United States and who may have violated US laws of extraterritorial application. In some cases (the UK), the individual may not have violated the law of country except the law of the United States. Countries that are “partners” to US extradition treaties, have become unpaid bounty hunters in the service of the United States.
After 911 …As per President George W. Bush in 2001:
I’m thrilled to announce I’ll be joining the political science department at @mcgillu. I’ve got some complicated feelings about returning to Canada after a decade in the US.
So I wrote this essay. https://t.co/uioRDrHWfP
— Debra Thompson (@debthompsonphd) June 5, 2020
The article referenced in the above tweet is written by a professor of political science who is Canadian born, has lived in the United States for the last ten years, currently has a Green card and is returning to Canada to teach at McGill. The article is a fascinating exposition of her perception of racism in North America. We are living in very troubled times and I believe her article has an important message for all. This sentiment was captured in the following comment to the article:
This is a disturbing, uncomfortable, thoughtful and very well written article. It made me think a great deal about what the author wrote, and starting to make changes about how I deal with others. Thank you.
Professor Thompson’s article is fascinating and thought provoking on many levels.
How is the article relevant to Brock, Accidental Americans and Americans abroad?
Manifest Destiny – 21st Century Version
It's 21st Century "Manifest Destiny". US extradition treaties export US laws and punishment to countries by treaty. Look at this beautiful woman coming to Canada via the Extradition Treaty (flanked by US prosecutors) to export US sanctions against Iran. https://t.co/ZVGmaYWDkz pic.twitter.com/P86Uc4kKcQ
— U.S. Citizen Abroad (@USCitizenAbroad) May 28, 2020
The United States exports more laws than any other country on earth (with a little help from extradition treaties)
— U.S. Citizen Abroad (@USCitizenAbroad) May 28, 2020
The full text of the Justice Holmes decision is here. The guts of the decision, ruling that the “double criminality” requirement has been satisfied, is found in paragraph 82 which reads as follows:
 Ms. Meng’s approach to the double criminality analysis would seriously limit Canada’s ability to fulfill its international obligations in the extradition context for fraud and other economic crimes. The offence of fraud has a vast potential scope. It may encompass a very wide range of conduct, a large expanse of time, and acts, people, and consequences in multiple places or jurisdictions. Experience shows that many fraudsters benefit in particular from international dealings through which they can obscure their identity and the location of their fraudulent gains. For the double criminality principle to be applied in the manner Ms. Meng suggests would give fraud an artificially narrow scope in the extradition context. It would entirely eliminate, in many cases, consideration of the reason for the alleged false statements, and of how the false statements caused the victim(s) loss or risk of loss. By that approach, Wilson, described above, would, it seems, require a different result.
As one Brock comment suggests:
Imho, the decision is really political whether or not Huawei/G5 is involved. One thing is evident ,no matter who is spinning the yarn, the US started it all and Canada will feel the economic pain whatever the outcome is , either from the US or China,in this case. Always forced to side off with the US in all foreign affairs and internal, it seems more evident by the year that Canada sometime in the future will become another star on the US flag.
A thoughtful series of comments about the Justice Holmes decision begins here.
Big picture view: Leaving aside the legal technicalities and the nattering over matters of form/substance, etc …
It seems clear that from a US perspective the purpose of an extradition treaty is to export US law to other lands. Since Canada is the United States’ biggest trading partner, doesn’t it seem reasonable that Canada should be the export destination of the largest number of US laws?
It’s the 21st Century version of the doctrine of “Manifest Destiny”. Don’t give up your US citizenship just yet. You may, in the future, have (as a US citizen) a “preferred citizenship status” in Canada.