Comparisons are inevitably being made between Shamima Begum, the British 19 year old who fled Britain when she was 15 to join the Islamic State (IS), and Hoda Muthana, a 24-year-old who travelled to IS three months before Begum, from her home in Alabama, United States. Like Begum, Muthana is also requesting to return to her country of citizenship, having also escaped to a Syrian refugee camp, with her young child. Muthana was more actively involved in propagating the views associated with ISIL, having ran a twitter account in which, for example, she called for attacks to be made in the United States on Memorial day, in contrast to Begum who says she was only a housewife while there and did not intend to become a “poster girl” for IS when her travelling to the territory became high profile news.

However, Muthana also appears more repentant than Begum, whose initial interviews were jarring because of her lack of regret and her apparent nonchalance towards executions committed by IS which were a source of huge outrage in the British media at the time. Muthana says she “deeply regrets” leaving America, calling herself “brainwashed”. Both women have said they are willing to face the legal and social consequences that face them upon their return, but both have found that their respective governments have sentenced them to a far greater punishment: a refusal of their return and so with it, the calling into question of their citizenship. Begum’s decision came first, with, the mother of Begum being sent a letter informing her of an order to strip Begum of her citizenship. In a decision that followed that of the UK government, the US government also informed the public that it will refuse entry to Muthana, arguing that she is not, and was never, a U.S. citizen.

In the face of the decisions by their respective governments to refuse their return, the discussion has now shifted from highly emotive public discourse to discussion around the the legal grounds of these decisions, and whether such decisions will hold.

The legal debate of Hoda Muthana’s citizenship

The U.S. state Department maintains that a judicial hearing and due process regarding her citizenship is not required for Muthana as she is not and has never been an American citizen and therefore is not covered by the 14th Amendment’s guarantee of citizenship to all persons “born or naturalised in the United States and subject to the jurisdiction thereof.” The basis of their argument is that Muthana’s father was a foreign diplomat officer based in the United States, and because of his employment, not subject to the jurisdiction of the United States but that of his own country.  The U.S. State Department therefore argues that, under U.S Citizenship and Immigration Services guidelines which exempts children not born “subject to the jurisdiction of the United States” from this right,  Muthana is not covered by the 14th Amendment. This has led Secretary of State Mike Pompeo to state that “Ms. Hoda Muthana is not a U.S. citizen and will not be admitted to the United States. She does not have any legal basis, no valid U.S. passport, no right to a passport, nor any visa to travel to the United States.”

However, as argued by Muthana’s defence, the U.S. Government has already taken the facts of her birth into consideration, and deemed her suitable for birthright U.S. citizenship since it has already issued her two passports on two separate occasions, in which her father’s former position was a part of this decision-making process. Muthana’s defence has provided formal evidence, signed by a U.N. official, to show that her father was no longer a diplomat at the time of her birth, and that this evidence was used in Muthana’s initial application for citizenship, which was granted.

The US government’s choice to focus on whether Muthana should be considered an American citizen to begin with appears a deliberate one, considering the direction the legal understanding of citizenship has developed there. Citizenship is considered an “absolute right”, and Supreme Court decisions, as well as Federal Statues, clearly indicates the extreme difficulty of stripping citizenship of someone already considered a US citizen. For example, Isaac Stanley-Becker in the The Washington Post, highlights the 1958 Case of Nishijawa vs. Dulles, where the Supreme Court decided that “neither Congress, the Executive nor the Judiciary, or all three”, could strip a Japanese-American citizen born in the U.S. but conscripted into the Japanese Army in World War II, of his “constitutional birthright”.

What does strip nationality, according to the Immigration and Nationality Act, is a “formal declaration of allegiance to a foreign state or political subdivision”. However, Muthana’s defence points out that IS has not been recognised as a state by the U.S., nor by any other state. Though the Secretary of State has the authority to deny or revoke a passport on national security concerns, which they used when the revoked Muthana’s passport when she travelled to Syria, this would still run into “significant constitutional objection” in terms of not allowing her even to return, according to Jonathan Shaub, the Tennessee Assistant Solicitor General, writing in the Lawfare.

Another potential legal avenue for the U.S. State Department is Section 349 of the Immigration and Nationality Act, which states that the United States can revoke citizenship if it can prove that the person committed an act (listed) “with the intention of relinquishing United States nationality.”  Again, even this may not apply to Muthana because while she may have declared formal allegiance, this must be to a foreign state, again something that ISIL has not been recognised as.

The legal debate around Shamima Begum’s citizenship

The legality around the citizenship of Begum has in contrast rested not on questioning the validity of her citizenship, but the power to strip her of it. In the Nationality, Immigration and Asylum Act 2002, a law passed after 9/11 and since amended, the government can revoke an individual’s citizenship if it is in the public interest. However, in line with International law, this can only be done if it does not leave a citizen stateless. In other words, the individual must have dual nationality in order for the UK to be able to strip someone of their British nationality. While the case in the US might be unprecedented, such citizenship cases has already taken place in the UK, for example in the case of Mahdi Hashi, who, after going public with the claim that the MI5 was trying to blackmail him into becoming an informer, was stripped of his citizenship by then U.K. Home Secretary Theresa May on the grounds he was involved in Islamic Extremism. However he found himself stateless since though he was born in Somalia, Somalia did not allow dual citizenship. His statelessness allowed him to be extradited to the US without due process. Around the time of his appeal, the UK made an additional change to UK citizenship laws with the 2014 Amendment to the Nationality Act, stating that citizenship could be stripped not only in the case where the citizen had dual nationality, but also “if the secretary of state has reasonable grounds” for believing that the person is able to become a national of another country based on that country’s laws.

It is on this law that Javid has based the justification for his order; Begum’s mother holds a Bangladeshi passport, and while Begum’s family state that Begum herself does not hold passport, there is the indication that she may be able to attain Bangladeshi citizenship. However, the Bangladeshi Minister of Foreign Affairs has stated that Begum is “not a Bangladeshi citizen” and there is “no question of her being allowed to enter into Bangladesh”. Given the Bangladeshi government’s outright dismissal of the possibility of this, it remains to be seen whether the UK government can still be considered to have “reasonable grounds” to believe that she will be granted citizenship.  Javid himself has conceded the difficulty of stripping Begum of her UK Citizenship—after his order to do so. He told fellow MPs in the House of Commons that such an action would not usually be taken against someone born in the UK and without dual nationality. This, according to The Guardian, has lead to claims that Javid was “seeking to exploit populist feeling without proper attention to the law”. Given the shaky grounds upon which the legality of the U.S. government’s decision is based too, this appears another similarity between the two cases.

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Sources

https://www.washingtonpost.com/nation/2019/02/22/rule-by-tyranny-american-born-woman-who-joined-isis-must-be-allowed-return-lawsuit-says/?noredirect=on&utm_term=.85134d94a761

https://www.lawfareblog.com/hoda-muthana-and-shamima-begum-citizenship-and-expatriation-us-and-uk

https://www.theguardian.com/uk-news/2019/feb/27/sajid-javid-difficult-to-strip-shamima-begum-of-uk-citizenship

https://travel.state.gov/content/travel_old/en/legal-considerations/us-citizenship-laws-policies/renunciation-of-citizenship.html

https://www.theguardian.com/books/2018/nov/17/unbecoming-british-kamila-shamsie-citizens-exilehttp://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1481&num=0&edition=prelim#sourcecredit

https://www.theguardian.com/uk-news/2019/feb/20/rights-of-shamima-begums-son-not-affected-says-javid

https://publications.parliament.uk/pa/jt200506/jtselect/jtrights/75/7507.htm