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Can someone who does not consider himself a US citizen be extradited and punished for a US felony crime due to a US citizenship?

I was fascinated by the above linked question. Most of the material in response seemed to be about the idea that a person committed a crime in fact rather than by intention, and so their belief that they were not a US citizen was not legally important.

But, I wondered, since it was also stated that whether you are a citizen of a country is not a matter of your own opinion but of the laws of the country - could the US make a person a US citizen specifically to be able to charge them with a crime and possibly extradite them.

I think I am asking: is it really entirely up to the country to proclaim someone a citizen? When can you renounce citizenship? Einstein famously renounced German citizenship in 1896 when he was still a minor.

One of the comments had an example that is spot on --The Lord Haw-Haw case after the 2nd WW. An American who became a Naturalized German, was tried for and convicted of treason as a British citizen because the British declared that he was one. The moral justification for this does not concern me here. Just, that that was the legal ruling. He got the death penalty. So that pretty much covers the spectrum here.

Bruce
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    "When can you renounce citizenship?": When the country's laws allow it. But keep in mind: it is possible, and not particularly uncommon, for two countries to disagree about an individual's nationality. – phoog Jan 13 '22 at 11:06
  • You don't get to "consider yourself" a citizen, least of all of the US. If you are a US citizen in fact, the only way to terminate that citizenship is complex, starting with establishing bona fide citizenship in another country. – Harper - Reinstate Monica Jan 14 '22 at 21:45
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    @Harper-ReinstateMonica there is no requirement to establish another citizenship before renouncing US citizenship. – phoog Jan 15 '22 at 07:18
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    Related (the same legal move for a different end): Could a foreign power remove an Australian member of federal parliament by declaring them a citizen? – phoog Jan 15 '22 at 07:24
  • @phoog LOL sure... and there's no requirement to build a house in the US using conventional framing. Nor to hook an urban house to the electric grid. But those (and yours) are not accurate statements because they do not reflect the level of grief they'll give you if you try. Anything is possible if time and legal budget are no object... – Harper - Reinstate Monica Jan 15 '22 at 19:18
  • @Harper-ReinstateMonica on the contrary, there is at least one stateless person in the world who is so because he renounced US citizenship without having another one. So "starting with establishing bona fide citizenship in another country" is incorrect both in theory and in practice. https://en.wikipedia.org/wiki/Mike_Gogulski – phoog Jan 15 '22 at 20:14
  • Who thinks Joyce wasn't a true British citizen might look, eg, at https://www.iwm.org.uk/history/the-rise-and-fall-of-lord-haw-haw-during-the-second-world-war – Robbie Goodwin Jan 15 '22 at 23:13
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    @Harper-ReinstateMonica you misconstrue my motivation, but no matter. Furthermore, the statement I was correcting wasn't that terminating US citizenship is "complex," which is a matter of opinion, but that having another citizenship is a necessary condition, which is objectively wrong. Many countries do have such a condition; the US does not. – phoog Jan 16 '22 at 01:12
  • In principle, there are situations when the USA could charge a US citizen and not a non-citizen (treason, bribery in foreign country and probably others). I can't think of any country that would extradite a citizen but not a non-citizen in the exact same circumstances. If there is a difference, citizens would be more likely to be protected. – gnasher729 Jan 17 '22 at 22:48

5 Answers5

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You can be extradited from Country A to Country B even if you are a citizen of neither. What matters is whether B can convince A to do it, which is typically on the basis of a treaty between them as well as provisions of both country's domestic criminal law.

If you committed a crime in B, then fled to A, your nationality is relevant to the extent that:

  • A might not extradite its own citizens, if you are a citizen of A
  • A might have an agreement with C, if you are a citizen of C, that C should have the chance to proscute you instead of B. (This is the Petruhhin doctrine in the case where A and C are EU countries and B is not.)

But you do not have to be a national of B in order for it to have jurisdiction over you in B's domestic criminal law - just as if you were still in B, they could arrest you in the normal way. They are thus entitled to request A's authorities to arrest you in A, and transfer you to B.

If your alleged crime was not in B, then their claim over you has to be on the basis that their domestic criminal law allows prosecution extraterritorially. This was the case when B was Spain, A was the United Kingdom, and the criminal was former Chilean leader Augusto Pinochet; while his status as a former head of state was relevant, as was whether the crimes were extraterritorial offences in the UK as well, his lack of Spanish nationality was not. A more topical example is B being the United States, A the United Kingdom, and the arrestee being Julian Assange, an Australian who is alleged to have committed various crimes under U.S. law (while not necessarily having been present in the U.S. at the time).

While all extradition relationships are different, a common thread of the criminal law in general is that what matters is the circumstances at the time of the alleged acts. Retroactively making you a citizen of B may not be satisfactory to A, to the extent that A's criminal law disallows making anything illegal retroactively. The supposed nationality grant by B might trigger provision's of A's domestic extradition law concerning requirements of due process, lack of political interference, and so on, and block the action.

But equally, renouncing your citizenship of B does not extinguish B's claim over you for acts you did while you were a citizen of B. This is again a feature of typical criminal law.

Brandon Rubeck
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    This is a good answer (+1), but it would be better if it more clearly spoke to the circumstances hypothesized in the OP's linked question, wherein holding U.S. citizenship is a necessary element of the offense. – John Bollinger Jan 13 '22 at 19:14
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    Great answer (+1). I think you partly covered the objection of @JohnBollinger in the comment about retroactively making things illegal. The case where they make you a citizen and then wait for you to do something illegal still stands. But, I feel that your discussion about citizenship not actually being required anyway more or less fills in that gap. In effect, if a country did declare someone a citizen so they could prosecute they are doing the equivalent of declaring them a person of interest. They are putting a target on their back. If other countries go along with it - then it has force. – Bruce Jan 13 '22 at 22:38
  • I think this answer is off topic. There are many cases where laws apply only to the citizens of that country, like treason or the sanctions against Cuba. So a case where the citizenship is relevant does exist. The case of Julian Assange is not relevant because he is accused of committing crimes across the border (inciting people in the US to reveal secret information). – FluidCode Jun 17 '22 at 15:33
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Made a citizen?

Probably not. Citizenship that is not acquired at birth normally requires some active step on the part of the person.

Not know you are a citizen?

Sure. Plenty of people, particularly the children of immigrants, may have a citizenship they don’t know about or think they hold a citizenship they don’t.

This can lead to tragic consequences. For example, there are many cases of people who immigrated at a young age, say to Australia, and grow up believing they are Australian (or not even thinking about it). They commit an offence and, at the end of their sentence, are met by immigration officials and are deported because they aren’t Australian. If they are New Zealanders this is tough but at least New Zealand speaks English. It’s really bad if they are Hungarian and don’t speak a word of Hungarian.

Extradition

You don’t need to be a citizen of a country to be extradited to it; you just need to have committed a crime in that country and be in another country.

Some countries will not extradite their own citizens as a matter of law. For example, if you are a Russian in Russia, you cannot be extradited to any country.

Ryan M
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Dale M
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Extradition

could the US make a person a US citizen specifically to be able to charge them with a crime and possibly extradite them.

This part of the question is based upon a false premise.

Extradition has little or nothing to do with citizenship.

If someone who is currently in the hypothetical country of Albia commits a crime under the laws of the hypothetical country Elbonia, and Elbonia requests that the person suspected of committing an Elbonian crime be extradited by Albia to Elbonia to face those criminal charges, Albia can and not infrequently will agree to extradite the suspect to Elbonia without regard to the suspect's citizenship.

Very few countries prohibit the extradition of their own citizens for crimes committed abroad which would be comparably serious crimes not subject to the death penalty in a foreign state. Likewise, one does not have to be a citizen of the state in which the suspect allegedly committed a crime in order to be extradited to that state to face criminal charges.

Generally speaking, Elbonia cannot deport Elbonian citizens in Elbonia for committing Elbonia crimes. But that doesn't prohibit Elbonia from extraditing an Elbonian citizen to Albia for committing an Albian crime.

Involuntary Citizenship

Each country determines its own rules for determining who is a citizen of that country and who is not.

These rules are frequently inconsistent with each other. On one hand, that means that it is frequently possible to be simultaneously a citizen of more than one country. On the other hand, that means that there are circumstances under which a person can become "stateless" and have citizenship in no country.

Most of the time, your citizenship is not a matter of personal choice. The vast majority of the time, your citizenship is initially automatically established in one or more countries at birth, either by the place where you are born, the citizenship of your parents, or both. Neither you nor your parents have any say in determining your citizenship at the time of your birth in most cases.

Once your citizenship is established at birth, a new citizenship may established by naturalization, and an existing citizenship may be renounced. Naturalization opportunities are frequently heavily regulated and limited, and there are significant barriers to renouncing one's citizenship, in part, to avoid the problem of people becoming stateless.

I think I am asking - is it really entirely up to the country to proclaim someone a citizen?

Yes.

A country could decide under its own laws that you are have become its citizen without your input, and indeed, this actually isn't all that uncommon.

The U.S. retroactively made lots of people citizens of the United States when the 14th Amendment to the U.S. Constitution was adopted.

Many countries retroactively declare that people with ancestors who were citizens of that country are citizens of that country.

When can you renounce citizenship? Einstein famously renounced German citizenship.

Each country can decide when and under what circumstances its citizens can renounce their citizenship for purposes of its own laws. Einstein's renunciation of German citizenship probably wasn't legally valid under the laws of the Third Reich in Germany.

But other countries can treat someone who renounces a foreign citizenship as no longer a citizen of that country even if the country whose citizenship is renounced doesn't allow its citizens to do so. Einstein's renunciation of citizenship was treated as valid under U.S. law without regard to the position that the Third Reich in Germany would have taken on the question.

ohwilleke
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    This comes up quite often with compulsory military service. You can go to visit a country and they can decide that you're a citizen and must perform military service, even if you were born overseas and don't speak the language. Here's an article about Thailand. – Stuart F Jan 13 '22 at 18:13
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    Agreed that extradition has little or nothing to do with citizenship, but the OP is asking about a circumstance in which citizenship is an essential element of the offense, so it comes in from that direction. If the person in question is not and never has been a U.S. citizen then they cannot have committed the offense in question. – John Bollinger Jan 13 '22 at 19:19
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    No answers yet touching on high treason. Consider the Lord Haw-Haw case. – mckenzm Jan 13 '22 at 20:27
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    There is no good reason why the U.S. government (by a general law, rather than a bill of attainder) couldn't declare someone to be a U.S. citizen and then punish them for treason committed while that person was a U.S. citizen, without their consent to becoming a U.S. citizen, so long as the country where the suspect was located agreed to extradite them, a decision which wouldn't depend upon citizenship but might be influenced the availability of a death penalty sanction in treason cases. – ohwilleke Jan 13 '22 at 22:32
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    @JohnBollinger and chwileke thanks. I get now that the essential answer is "yes" - but that there are many details around the matter that definitely flavor the legal soup. – Bruce Jan 14 '22 at 02:25
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    I was actually referring to 5th Feb 1896 when Einstein renounced his German citizenship for the first time. Not to 1933, when he effectively fled Germany after having picked up the citizenship so he could get a position. The first time did not involve any international support. – Bruce Jan 14 '22 at 02:27
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    "Once your citizenship is established at birth, a new citizenship may established by naturalization, and an existing citizenship may be renounced." These often happen simultaneously - for instance, the process of becoming a naturalized U.S. citizen automatically extinguishes any preexisting citizenship. – Vikki Jan 14 '22 at 02:29
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    @mckenzm Excellent - thanks. IMHO, Lord Haw-Haw is spot on. American and Naturalized German, tried for treason as a British citizen because the British declared that is what he was. – Bruce Jan 14 '22 at 02:33
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    @Vikki. I think it's pretty well established that taking US citizenship it does not do so. Swearing to the US that one renounces other citizenships carries no weight to most other countries, except those who disallow dual citizenship and will revoke theirs when they find out you've taken the US's. Thus many naturalized US citizens retain their prior statuses, and this page from the US Dept of State pretty clearly acknowledges that: https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/Advice-about-Possible-Loss-of-US-Nationality-Dual-Nationality/Dual-Nationality.html – CCTO Jan 14 '22 at 03:03
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    @Vikki CCTO is right. US courts have found that the citizenship oath does not actually require the new citizen to give up existing citizenships, and only some countries automatically deprive their citizens of citizenship when naturalizing elsewhere. In those cases, the naturalization has this effect regardless of the text of the naturalization oath. Many US citizens retain citizenship of other countries after naturalization, in the full knowledge of both countries. – phoog Jan 14 '22 at 11:58
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    So essentially, in theory, any country could pass a law that dictates that every person ever born anywhere in the world is a citizen of that country? If the country allows prosecution for crimes committed abroad (as many do), it would be in a position where it could demand extradition of and prosecute anyone who has ever done anything which is against the law in that country (whether or not it’s illegal anywhere else) – and the only barrier would be whether other countries went along with the extradition. That’s rather a scary thought. – Janus Bahs Jacquet Jan 15 '22 at 10:18
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    @JanusBahsJacquet it doesn't matter if you are their citizen or not wrt demanding extradition and prosecuting you or not. Suppose country A has a law that punishes adultery with stoning. Moreover, it doesn't recognize divorces (or only in some very narrow cases under their laws). That makes most divorced people that married again bigamous according to their law. However, if you are in country B, where your first marriage is considered to have come to an end, you would not be extradited to country A (and actually A wouldn't even request it). – Ángel Jan 16 '22 at 00:48
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    However, it could be extremely unwise for you to visit country A with your new wife to e.g. visit your ex-wife. Nonetheless, there's sometimes some leniency with foreigners regarding these "cultural" crimes, so instead of killing you they may consider enough to kick you from the country. So yes, they would treat more harshly their own citizens, but I would define the difference as that punishing a citizen of a different country -with something they don't agree- would "upset" that other country. A country making a B citizen a citizen of A before trial wouldn't help them there. – Ángel Jan 16 '22 at 00:53
  • @Ángel If the person in question is a citizen of country A, lives in country A, has done nothing that’s illegal in country A and has never visited country B, then country A would be *extremely* unlikely to agree to extradite that person to country B. Given the same circumstances, country A would perhaps still not be very likely to extradite the person even if they are a citizen of country B, but the likelihood goes up significantly. So yes, it does matter. – Janus Bahs Jacquet Jan 16 '22 at 01:10
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    @JanusBahsJacquet do you mean the person is a citizen of country B, lives in country A, has done nothing that’s illegal in country A (nor is country B claiming that) and has never visited country B? I'm hard-pressed to think on a circumstance for that. I think it would be more important if it is a citizen of country A or not. Although if their only citizenship is that of B, then perhaps the odds are higher than if they were a citizen of C. – Ángel Jan 16 '22 at 01:21
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    @Ángel No, I mean, as an example, a completely English man who has no family outside the UK, never even been outside the UK, and has no other ties of any kind to any other country. He chews gum, which is perfectly legal in the UK. Now, say Singapore enacts a law that everyone on the planet is a Singaporean citizen, including this man. Since chewing gum is (largely) illegal in Singapore, they request an extradition to prosecute the man from the UK, based on the fact that he is a Singaporean citizen. The UK would probably not agree to that, but some countries might respond differently. – Janus Bahs Jacquet Jan 16 '22 at 01:30
  • @JanusBahsJacquet The step of having Singapore enact a law that everyone on the planet is a Singaporean citizen isn't necessary. Singapore could just as easily and with no different effect, declare that it is illegal for anyone to chew gum anywhere in the world. Indeed, countries like Spain with "universal jurisdiction" are basically saying that certain crimes like genocide are illegal for anyone to commit anywhere in the world without regard to citizenship. – ohwilleke Jun 17 '22 at 01:54
  • @ohwilleke That wouldn’t be the same at all. Any actual extradition in your scenario would depend on a nation being willing to give up one of their own citizens to stand trial in a foreign country. In my scenario, it depends on that same nation being willing to give up one of the asking country’s citizens for extradition. Of course, the question would then be whether the asking country’s claim of citizenship over the person in question would be recognised or not, but that’s a different matter. – Janus Bahs Jacquet Jun 17 '22 at 09:49
  • @JanusBahsJacquet Citizenship is generally irrelevant to whether someone will be extradited or not. – ohwilleke Jun 17 '22 at 18:41
  • @ohwilleke Not necessarily true. Various countries have laws that stipulate that citizens of the country itself may not be extradited out of the country (cf. Roman Polanski). Had Polanski not been a French citizen, there’s a good chance he would have been extradited. – Janus Bahs Jacquet Jun 19 '22 at 17:46
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I’m not aware of a provision of U.S. law that allows a person whom the U.S. government agrees was never a citizen to be forcibly naturalized. One of the few crimes for which not being a citizen would be a defense, and therefore the government might try to prove that someone who claims not to be a citizen really is, is in a case of treason.

The most famous case of something like this happening was William “Lord Haw-Haw” Joyce in 1946. A famous Nazi propagandist chosen to host a radio show in English, he was captured at the end of the war and put on trial for treason. He then revealed that he had never been a British citizen at all, He had been born in America to Irish Unionist parents, lived in Britain for a time, picked up the accent, then became a German citizen in 1940.

The embarrassed prosecutors brought forward at trial that Joyce had lied to obtain a British passport. (And had fooled them, too.) In theory, they argued, he could have shown that passport in Nazi Germany and asked for British consular protection, during the Second World War, while being a wanted criminal in the UK. Therefore, they alleged he owed loyalty to the British crown and could be executed for treason. In essence, and over his strenuous protests, he was declared to be in the same legal jeopardy as a British citizen despite never having been one.

The three American cases similar to that had different outcomes. One of the two women nicknamed “Axis Sally,” Rita Luisa Zucca, was not prosecuted for treason because she had renounced her U.S. citizenship in 1941. Two other women were convicted of treason after the war for having made propaganda broadcasts (one of whom was later pardoned), but neither disputed that they were U.S. citizens, and both remained in the country after serving their sentences.

Some other countries do sometimes declare a person a citizen of their country against their will. For example, the People’s Republic of China has declared that “persons belonging to any of the nationalities in China shall have Chinese nationality,” and “the People’s Republic of China does not recognise dual nationality for any Chinese national.” You might think this would mean that Hong Kong residents who accepted British citizenship would lose their Chinese citizenship. The PRC’s interpretation is in fact that “the British Citizenship acquired by Chinese nationals in Hong Kong [...] will not be recognised. They are still Chinese nationals and will not be entitled to British consular protection[.]”

This used to happen more often in the past, including in America. For example, the U.S. and some other countries used to hold that a woman who married a foreigner lost her original citizenship and acquired his.

Davislor
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  • I particularly liked your comment about the Chinese citizenship as this seems at the least to allow for the scenario I am interested in here. – Bruce Jan 14 '22 at 04:09
  • While US law does not provide for involuntary naturalization, there's nothing stopping the US from passing a law to naturalize someone involuntarily, subject to the usual procedure for enacting laws. The question "can the US do X" isn't the same as "does US law currently allow the US to do X." – phoog Jan 14 '22 at 11:49
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    @phoog Well, the State Department or the Justice Department cannot do that, in the present tense, because the law does not allow it. You’re interpreting the question as some future hypothetical. Maybe there’s a case or precedent that would shed light on whether such a hypothetical law would stand up in court? – Davislor Jan 14 '22 at 23:04
  • I doubt there's such precedent, since I doubt anyone has ever tried a stunt like the one contemplated in the question. I just wanted to point out that there are different levels of "can" that often become obscured in questions like this. There's statutory law, as this answer discusses, but also constitutional law and international law, which can further be broken down into that based on custom as opposed to treaty, and the latter can be distinguished by enforcement mechanisms or the lack thereof. – phoog Jan 15 '22 at 07:13
  • William Joyce, born 1906, was brought to Ireland at the age of 3 (1909). He acted and was treated as a British subject, receiving his first British passport on the 4th of July 1933 describing himself as a British subject by birth. It is also questionable whether he actually received German citizenship in 1940 (even with some of the exceptions to the normal nationalisation rules that existed during WWII). – Mark Johnson Jan 15 '22 at 07:20
  • @MarkJohnson I don’t think we disagree: he wasn’t ever a citizen of the UK. The British government certainly does not accept that everyone who moves to the UK as a child (1909 being before Irish independence) and “acted and was treated as a British subject” has the rights of a citizen. – Davislor Jan 15 '22 at 14:31
  • But the father was a British subject (naturalized in 1894, would of lost the US citizenship 2 years after returning to his country of birth (1905)). This would not have effected the sons US citizenship, but [speculation] the son may have not known that or assumed he was British through his father. – Mark Johnson Jan 15 '22 at 15:38
  • 1911 (not 1905). Unless the father explicitly renounce his UK citizenship while in the US, the son would be British by decent at birth. – Mark Johnson Jan 15 '22 at 16:02
  • @MarkJohnson If so, every child of an Irish citizen, whose parents were born before independence, would have inherited British citizenship. Do you have a source for the claim that he never truly became a German citizen Your link to Wikipedia doesn’t say that or give a citation. – Davislor Jan 15 '22 at 16:42
  • @MarkJohnson In any case, the British government did not make that argument at his trial. – Davislor Jan 15 '22 at 16:45
  • British Nationality and Status of Aliens Act, 1914: The following persons shall be deemed to Definition ofbe natural-born British subjects, namely:- Any person born out of His Majesty's dominions whose father was, at the time of that person's birth, a British subject, and who fulfils any of the following conditions, that is to say, if either- (i) his father was born within His Majesty's allegiance ; or... – Mark Johnson Jan 15 '22 at 16:58
  • So if the father never renounced his UK citizenship William Joyce was a natural-born British subject independent of what was brought before the court or not. – Mark Johnson Jan 15 '22 at 16:58
  • I didn't claim that he never became a German citizen, I said it was questionable. Starting 1921 10 years of residence was required for a person of non-German decent to be nationalised. That makes William Joyce claim questionable. His work book found in 1945 stated that he was British. – Mark Johnson Jan 15 '22 at 17:21
  • @MarkJohnson Between 1914, when the law you cite passed, and 1946. when Joyce was tried, Ireland became an independent nation. The United Kingdom does not believe that every Irish-American inherits the British nationality of their ancestors from when Ireland was part of their Empire. Nor even all second-generation immigrants whose parents were born before 1921. – Davislor Jan 15 '22 at 19:42
  • @MarkJohnson In any case, we’re drifting off-topic and, even if mainstream historians are wrong and you’re right, it still would be a case where Joyce attempted to defend himself against a charge of treason by saying he was not a British citizen, and the British government rejected his claim and executed him anyway. – Davislor Jan 15 '22 at 19:49
  • Since the Joyce family moved to England in 1922 (and remained there) they were not effected by Irish independence in late 1922 at all. That he later made claims to avoid being hanged should come as no surprise. The point is: the facts speaks against the UK forcing their citizenship on him. Someone who was in the Officer Training Corps during their studies in the early 1920's and then applied for a job in the Foreign Office is a sign that that person considered themself British at the time. – Mark Johnson Jan 15 '22 at 22:19
  • @MarkJohnson The standard account of the Joyce trial was that Joyce was not a British citizen, and that not even the prosecution claimed that he was. You conclude the opposite. Is this based on your own original research, or can you refer me to a credentialed historian who has reached the same conclusion? – Davislor Jan 15 '22 at 23:25
  • Historians collect facts and come to a conclusion. My conclusion is, based on the known facts of his life up to 1939, that he acted and was treated as a British subject. His claim of gaining German citizenship after 1 year of residence is highly unlikly and since Germany rarely (if ever) nationalised traitors serving their cause. Conclusion: William Joyce lied in 1945 to avoid being hanged for treason. – Mark Johnson Jan 15 '22 at 23:52
  • @MarkJohnson So, this conclusion is original research, and historians as well as his biographers do not agree with it? Thank you for clarifying. – Davislor Jan 16 '22 at 00:20
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First of all, you don't have to be a citizen of a country to be charged with a crime in that country, For example, if a Canadian came to the US and started shooting people they would be charged the same as if they were American. The only exception would be diplomatic immunity.

Extradition is a diplomatic thing. It has nothing to do with whether or not someone committed a crime.

Savage47
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    Your answer could be improved with additional supporting information. Please [edit] to add further details, such as citations or documentation, so that others can confirm that your answer is correct. You can find more information on how to write good answers in the help center. – Community Jun 17 '22 at 06:17
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    The first paragraph of this answer is correct. The 2nd is not. Extradition is the procedure by which a person accused in one country but found in another may be handed over to the accusing country for trial. It thus does have to do with crime, specifically with whether a person has been accused of a crime. In many cases the sending country insists on evidence supporting the accusation before handing over the accused. Extradition is provided for by treaty, but I would not call it a "diplomatic thing". – David Siegel Jun 17 '22 at 16:15