Lawsuit in Muthana Case Raises New Issues

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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49 Responses

  1. Avatar Philip H
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    says:

    One doesn’t know whether to laugh, cry, punch a wall, or drink. As a federal bureaucrat and scientist, one is inclined to do the last two in sequence since this all seems to hinge on narrow (IMHO too narrow) reading of a dubiously kept administrative record – albeit the best record apparently available. If I read it all correctly – and remember your last post correctly – the State Department having unilaterally revoked her passport means she MAY be a Yemani citizen or she MAY be stateless, or she MAY be a US citizen but essentially accused by State of having unilaterally renounced her citizenship when the record is ambivalent.

    Frankly this all strikes me the same way the debate about DACA folks strikes me – children brought (or born) in the US to parents of non-linear immigration status, who then as adults want to make a life here are still being run out of the country by fearful old white men even though in the abstract they are assimilating the very way those same old white men say they should. As I noted the other day in less colorful terms – all this because she essentially gave her lady parts to ISIS and has come to the realization its not a good lifestyle choice for raising kids.

    There are WAY more important things in the world.Report

    • Avatar Em Carpenter in reply to Philip H
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      says:

      “all this because she essentially gave her lady parts to ISIS…”

      I would argue it was much more than than. She is accused of actively recruiting online for them, and of course there’s the matter of her advocating for Muslims in America to kill as many Americans as possible, including the President.Report

    • Avatar LeeEsq in reply to Philip H
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      says:

      Mexico has a few non-profits that are attempting to assimilate DACA people into Mexican life. That’s how assimilated they are. Many of them do not even speak Spanish or at least don’t read and write it.Report

  2. Avatar Stillwater
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    says:

    The question of diplomatic immunity is at the heart of this case

    Or alternately, the scope and meaning of “subject to the jurisdiction of the United States.”Report

    • Avatar Philip H in reply to Stillwater
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      says:

      That’s a good point – and part of where I was lazily going with my original comment. If the US could issue a passport – the only one she’s had if I remember correctly – and then revoke it unilaterally, I’d say she’s subject to our jurisdiction.

      And another thing that just occurred to me – if her mother was going through the legal immigration process before her birth – in anticipation of her husband’s eventual end of diplomatic status – doesn’t that mean the mother was “subject to the jurisdiction of . . .” and therefore her offspring would also be especially if born on US soil?Report

      • Avatar Jaybird in reply to Philip H
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        says:

        If the US could issue a passport – the only one she’s had if I remember correctly – and then revoke it unilaterally, I’d say she’s subject to our jurisdiction.

        Isn’t revoking a passport a way of officially saying “you’re not subject to our jurisdiction”?

        If saying “you’re not subject to our jurisdiction” is an acknowledgment of the person being subject to jurisdiction, that’s one hell of a kafkatrap.Report

      • Avatar Em Carpenter in reply to Philip H
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        says:

        “If the US could issue a passport – the only one she’s had if I remember correctly – and then revoke it unilaterally, I’d say she’s subject to our jurisdiction.”

        The passport was revoked on the grounds that it was improperly issued, so not necessarily.

        “And another thing that just occurred to me – if her mother was going through the legal immigration process before her birth – in anticipation of her husband’s eventual end of diplomatic status – doesn’t that mean the mother was “subject to the jurisdiction of . . .” and therefore her offspring would also be especially if born on US soil?”

        Fair point of argument!

        (sorry, have not figured out how to properly quote on the new system yet!)Report

  3. Avatar Jaybird
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    says:

    children brought (or born) in the US to parents of non-linear immigration status, who then as adults want to make a life here

    My argument would be that the young woman didn’t want to make a life here but wanted to join ISIS and that changes the dynamic significantly from a DACA young woman who wants to go to college and get a degree in Interpersonal Communication before going to law school and becoming one of those lawyers you see on commercials during daytime television.Report

    • Avatar Philip H in reply to Jaybird
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      says:

      Then let me redirect to point out that in both cases, some in the US wish to essentially hold the children to account for decisions their parents made or didn’t make or didn’t document properly in a timely fashion. Which goes against the grain of everything I’ve learned about kids and the law as a layperson int he US.Report

      • Avatar Jaybird in reply to Philip H
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        says:

        I think that there *IS* a difference between parents who come here and bust their asses across the border to make a better life for themselves and their children and diplomats who live here while they’re not living there.Report

      • Avatar Dark Matter in reply to Philip H
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        says:

        The Dreamers claim to citizenship is that they’re Americans in spirit even if they didn’t technically follow the law. I’m cool with that. Her claim to citizenship is very technical because not only is she’s not an American in spirit but she actively tried to end America.

        If we’re going to give her a mulligan for what her parents did and hold her accountable for her own decisions, I’m not sure her life improves. She’s not starting with a blank slate here. If she’s a citizen then she always has been, ergo she’s a traitor, joined a heinous criminal organization for the purpose of furthering it’s ends, etc.

        What is she expecting? Is she offering to plead guilty to her various crimes and spend the next 40 years in prison? It sounds like she doesn’t understand she’s done anything wrong and just wants her childhood environment back for her kids. It’s not clear she’s even given up (or regrets) trying to get vast numbers of people murdered because they’re not members of her sect.Report

  4. Avatar J_A
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    says:

    “…A decade later, the Muthanas sought a second passport for Hoda, but the State Department this time questioned Hoda’s citizenship because their records showed Mr. Muthana’s diplomatic status was in effect until February of 1995….”

    “…the United Nations, Host Countries Affairs Section was not officially notified of his termination from this position until February 6, 1995. Therefore, your father remained in diplomatic status when you were born on October 28, 1994. As such, you wer not born subject to the jurisdiction of the United States, and did not acquire U.S. citizenship at birth pursuant to the Fourteenth Amendment to the Constitution…”

    Irrespective of failures to notify X or Y people or entity, I would argue that the effectiveness of the termination of diplomatic status should be a finding of fact based on when Yemen (the employer) terminated his diplomatic posting in THE UN, and based on whatever agreements exist between the UN, the USA (and Yemen, if applicable), related to the remnant of immunity departing diplomats might enjoy while they are on their way out.

    If, instead of having a daughter, Mr Hoda had murdered someone on October 26, 1994, I doubt the USA would argue “well, Yemen had terminated your post, but don’t worry, since the paperwork had not yet been received in X office, we will consider you were a diplomat, and we will not prosecute you. Enjoy the rest of your day, and sorry to have bothered you with this matter”Report

  5. Avatar Mike Schilling
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    says:

    If the circumstances were similar, except that her father was a Belarusian diplomat and she’d gone to Russia to take part in the annexation of the Ukraine, how would the pro and anti sides differ?Report

    • Avatar Philip H in reply to Mike Schilling
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      says:

      Mr. Trump would probably invite her to the WH.Report

    • Avatar Dark Matter in reply to Mike Schilling
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      says:

      ISIS’ is mostly known for committing war crimes (including genocide) and calling for genocide.

      You need to go multiple rungs below the Russians in order to reach that depth, imho we’re into Nazi territory.

      She’s like someone who knows death camps have been set up and is just thrilled with the idea, so thrilled that she goes to help and repeatedly calls for them to be set up here. That’s what it means to call for all Muslims to kill all non-Muslims.Report

      • Avatar Chip Daniels in reply to Dark Matter
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        says:

        If we were to treat supporters of ISIS and Nazis the same, this liberal would totally support that.

        But then consider the source. I’m so intolerant that I refuse to believe there are good people on both sides.Report

        • Avatar Dark Matter in reply to Chip Daniels
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          says:

          Chip: If we were to treat supporters of ISIS and Nazis the same…

          We do. Historically being a for-real-Nazi is a ticket to the gov making a serious effort to kick you out of the country if you didn’t have citizenship and it’s also a ticket to the gov making a serious effort to remove your citizenship even if they’d granted it decades ago.

          Further “supporter” could mean someone who votes for something out of ignorance. She’s well past “supporter” and deep into “being a member” territory.

          Afaict she, personally, has publicly advocated and tried to inspire murder and mass murder. She, personally, has supplied aid and comfort to our enemies who were engaged in various war crimes, and she did so apparently because they were engaged in various war crimes.

          Chip: …there are good people on both sides.

          No doubt true. However “just wanting to help Muslims kill all non-Muslims” makes it seem like we’re past needing to worry about that here.

          I get that life sucks for her right now. She’s been beaten, raped, and tortured for not being loyal enough to ISIS and when she joined up she thought that would only be done to other people. I get that a lot of this is her parents fault, she was raised fundy so they probably skipped saying “when we say depend on god we don’t actually mean depend on god”. I get that she thought God was on her side and only the unbelievers were going to suffer and die.

          However, while she may have “decided to do this as a teenager”, she was 20 years old when she left the States. Everything she did was as an adult. She choose this… and I don’t see any good reason to take her back. She worked very hard to create her current situation and being a Nazi is supposed to have serious consequences.

          And as long as I’m on the subject, “good reason to take her back” would basically be some sort of benefit to society. Creating general peace via a general amnesty would be a good reason. However ISIS still doesn’t want peace and they’re not numerous enough in the US to make that necessary. If she wants to come back then let her try to copy John Walker and make a prison sentence deal. That would showcase lots of good things, not the least that she’s accepting responsibility for her actions.Report

          • Avatar Chip Daniels in reply to Dark Matter
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            says:

            Yes, but there is a difference between an Isis member and a For-Real Isis member, don’t you think?

            I mean, there’s a lot of guys who wear swastikas and read Mein Kampf and make the Heil Hitler salute and speak earnestly about killing Jews and donate money to the Nazi cause and even go out on weekends to train with weapons in the woods, but that doesn’t make them For Real Nazis, any more than someone who calls herself an Isis member is.

            How do we know she isn’t just doing this for the lulz, y’know, to own the smug self righteous libs who really, are to blame here.

            I bet if she came back she would go to Panera bread and drive a minivan like anyone else.Report

          • Avatar Jaybird in reply to Dark Matter
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            says:

            Was she running around in the woods and yelling “allahu akbar” and donating money to Hamas or did she do something more like “run off to join an opposing army that was actively engaged in a war”?

            If we can hammer that out, we might be able to get somewhere.Report

        • Avatar Dark Matter in reply to Chip Daniels
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          says:

          Chip: …but that doesn’t make them For Real Nazis, any more than someone who calls herself an Isis member is.

          Very true. To actually join ISIS she’d have to sneak into ISIS controlled territory and offer her services to them. Problem is that’s what she did.

          Similarly we aren’t actively at war with the current Nazis, who are more of a pathetic joke now than a brutal force out there committing war crimes. We’d take the guys with Swastika tattoos a lot more seriously if this were the 1940’s and their army were out there creating corpses. We’d especially take it seriously if a guy with a Swastika tattoo fled the country to join Hitler’s army or to help run a death camp.

          Chip: I bet if she came back she would go to Panera bread and drive a minivan like anyone else.

          Agreed. Similarly the local guys who worked in the Death Camps in Poland had pretty normal lives after the allies took the camps apart. However those guys didn’t change countries for the purpose of making a death camp function.

          And the only reason we didn’t charge people like that was because there were far too many of them. Stalin wanted to execute about 50k.

          However by modern US standards she’s a real piece of work.Report

          • Avatar Chip Daniels in reply to Dark Matter
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            says:

            Oh, so like if Nazis were killing more Americans than ISIS, that might change things?Report

          • Avatar Dark Matter in reply to Dark Matter
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            says:

            Chip,

            If this were the 1940’s and there were real Nazis around engaged in genocide and we were at war with them and some local skinheads went to Germany to help them engage in genocide, then we’d have the equiv of what she did. And if memory serves we did have that sort of thing happen and we treated the people involved seriously, and appropriately.

            Where are you going with this? When you said “treat supporters of ISIS and Nazis the same” were you trying to suggest that the modern day Nazis aren’t jokes and should be treated seriously?Report

          • Avatar Chip Daniels in reply to Dark Matter
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            says:

            Yes.
            Nazi and Klansmen pose a far more serious threat to America than ISIS.Report

        • Avatar Dark Matter in reply to Chip Daniels
          Ignored
          says:

          Chip: Nazi and Klansmen pose a far more serious threat to America than ISIS.

          How do you figure?

          We have a formal declaration of war on ISIS because they’re so strong and dangerous we need the army to deal with them. Trump is in the process of learning, just like Obama before him, that you can’t pull the troops out without ISIS winning.

          If we’re going to count corpses over the last 20 years then the Nazis have… what? Dylann Roof? How many followers willing to kill or die does he have? How does that even begin to compare to 911 or ISIS threatening to overthrow countries?

          If Nazis declare a national march they’ll be vastly outnumbered by SJW and local law enforcement. They’re so weak and so rare that SSJ need to fake incidents just so they have something to oppose.Report

    • Avatar Jaybird in reply to Mike Schilling
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      says:

      I imagine they’d switch the whole “let’s look at this as a *MORAL* issue” vs. “let’s look at it as a technical *LEGAL* issue” thing.

      I’m not sure what my takeaway from that is supposed to be, though.Report

      • Avatar pillsy in reply to Jaybird
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        says:

        I’m not entirely sure about this.

        I also really don’t entirely understand the resistance to having her return and then throwing the book at her. People seem to have an intuition that this is doing her a favor, and is thus bad, but I don’t share it.

        I think @dark-matter is possibly right that she doesn’t understand the reality of what she’d be returning to (a lengthy federal prison sentence), but that’s one thing we certainly aren’t and shouldn’t be constrained by.Report

        • Avatar Jaybird in reply to pillsy
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          says:

          I think it’s some variant of “you don’t get to run off, renounce your citizenship, join an opposing army, provide aid and comfort to the soldiers in this opposing army (if not actively fight against the US), and then, when this opposing army loses, get to come back and enjoy the benefits of citizenship.”

          I also really don’t entirely understand the resistance to having her return and then throwing the book at her. People seem to have an intuition that this is doing her a favor, and is thus bad, but I don’t share it.

          I think they suspect that the assumption that the book in question will be thrown is a bad one.

          She’s gone through enough. She made a mistake. She understands that what she did was wrong. Now you want her to come back just so you can engage in your little “Orange Is The New Black” lesbian fantasy for her? What the hell is wrong with you?

          Maybe the problem isn’t that she joined up with ISIS but that people like you demand punishment for crimes that you can’t even prove happened.Report

          • Avatar pillsy in reply to Jaybird
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            says:

            I guess the last is where the disconnect is.

            People who don’t question for a second that she joined up with ISIS think either that joining up with ISIS isn’t illegal (it totally is) or that we can’t prove she did it (we totally can).

            People who argue sending someone to federal prison is doing them a favor baffle me even more. I’m pretty sure none of them actually believe that, though.Report

          • Avatar Chip Daniels in reply to Jaybird
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            says:

            And for that matter, there are plenty of cases where Americans did renounce their citizenship, join an opposing army, and when that army lost, come back and enjoy all the benefits of citizenship.
            The Confederates, the Abraham Lincoln brigade, even Tokyo Rose was treated like a citizen.Report

          • Avatar Jaybird in reply to Jaybird
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            says:

            It’s not that sending them to prison is doing them a favor.

            It’s that they have no confidence that she’ll go.

            I googled “should returning ISIS soldiers be charged” and, you know what? There are a ton of debates happening in Europe over whether or not they should be.

            I think that if people were confident that she’d have the book thrown at her they might be more open to having her come back… but let’s say that there are good odds that the book will not be thrown at her.

            Should she be allowed back if the book wouldn’t be thrown at her?Report

          • Avatar pillsy in reply to Jaybird
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            says:

            They can debate whatever they want in Europe.

            But I think the law is pretty clear in the US, and we’ve certainly charged (and convicted) people for doing this kind of thing in the past.

            (There’s probably a long tangent to be had about people being preoccupied with looking to “Europe” for precedent when we have plenty of our own precedent right here!)Report

          • Avatar Jaybird in reply to Jaybird
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            says:

            See? Look at Chip’s comment.

            He makes the point better than I possibly could.Report

          • Avatar pillsy in reply to Jaybird
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            says:

            We prosecute citizens for criminal activity all the time. There are benefits of citizenship to be sure, but immunity to prosecution for treason, material support of terrorism, and the like is definitely not among them [1].

            Tokyo Rose was convicted of treason and spent a decade in prison. She was later pardoned, though, but, like, many years after her sentence was completed.

            [1] My understanding is that Muthana did not commit treason due to the extremely narrow meaning of that term in US law, but that’s hardly the only charge available.Report

          • Avatar Chip Daniels in reply to Jaybird
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            says:

            The fact that people acknowledge the point, but object to it, is what I find noteworthy.Report

          • Avatar Dark Matter in reply to Jaybird
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            says:

            Jaybird: It’s not that sending them to prison is doing them a favor. It’s that they have no confidence that she’ll go.

            Her current lifestyle is living with other ISIS follower refugees. That includes watching friends’ children occasionally die because of lack of medical care. It may also include things like being beaten, raped, tortured and not having enough food.

            I think there’s an argument she would indeed be better off in prison here than there and there’s a stronger argument her son is better off here even if she’s in prison.

            However yes, it’s not at all clear she’d end up in prison. She’s gone from claiming her Twitter statements were because she was pissed her first husband got killed to claiming she never wrote them and someone more radical was using her account. Absent that we have… simply running off to join ISIS? How many years is that? I assume we have zero witnesses for anything she’s done while there so no doubt she’ll claim to have been tasked with feeding widows and orphans.

            Also from a “money” standpoint a trial would be expensive as would keeping her in prison for decades. I don’t see why she’s worth the money if she’s not a citizen and/or renounced her citizenship.Report

      • Avatar Jaybird in reply to Jaybird
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        says:

        Maybe the takeaway is that you can’t trust moral arguments because new information cannot change them.

        Only the technical legal arguments have the possibility of changing with the introduction of new information.Report

        • Avatar Mike Schilling in reply to Jaybird
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          says:

          My view is that the rule of law is important, especially when it’s as threatened as it is today. I have no sympathy for her; you know that if ISIS had its way, I’d be among the first to go. But if she’s legally a citizen, she gets to come back and then get thrown in prison, and her son gets to grow up as an American. Which may be what she’s after; even genuinely terrible people may care about their kids.Report

          • Avatar Jaybird in reply to Mike Schilling
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            says:

            Well, we now have a simple legal question then.

            Was her dad still a diplomat when she was born?

            And this goes back to that letter from January 15, 2016 (Trump was sworn in on the 20th) and so this letter came out back when Obama was still Prez.

            If we agree that it is a narrow legal question rather than a moral one, what does that letter tell us?Report

        • Avatar Burt Likko in reply to Jaybird
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          says:

          You can’t trust moral arguments because they always somehow manage to affirm your awful, ill-considered priors, and you ought to rely upon my enlightened priors instead but you can’t because you’re hopelessly biased and can’t be neutral and fair like me.

          So the technical legal arguments are all that our system of government really has, and for that matter it’s all it ought to have.Report

  6. Avatar Jaybird
    Ignored
    says:

    Speaking of Canada, here is an article about how Canada is dealing with returning ISIS people.

    It’s a fact check article dealing with the question: “Are Liberals welcoming ISIS returnees to Canada with open arms?”

    As is Canada’s way, their answer to the question is that the assumption is “a lot of baloney.”

    (I copied and pasted that, by the way.)

    But here’s some of the stuff from the middle:

    Public Safety Minister Ralph Goodale said Wednesday that the government has identified about 250 people with links to Canada who are suspected of travelling overseas to engage in terrorist activity .

    This could involve front-line fighting, training, logistical support, fundraising or studying at extremist-influenced schools. Yet the number who have returned to Canada has remained largely unchanged at around 60 over the past two years, suggesting there has not been a sudden influx of terrorists into the country.

    Still, the government has refused to say much about those 60 individuals, including who they are, where they travelled, what they may have done, and what the government is doing about them.

    You see Europe doing this and Canada doing this and you have people explaining that, after the Civil War, people were allowed to get back to their lives… well, you might have reason to think that the book might not be thrown at her when she comes back.

    Which makes the question “Should she be allowed to come back and get back to doing whatever she was doing before she left?”

    Which is a significantly different question that is short-circuited by the discovery that, nope, she wasn’t a citizen in the first place and she got her passport under fraudulent circumstances.Report

  7. Avatar Dark Matter
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    says:

    Jaybird: If we agree that it is a narrow legal question rather than a moral one, what does that letter tell us?

    Probably that she’s screwed. The gov decided to make an example of her after she joined ISIS. Her actions were an invitation for the gov to put her life under a microscope and see what they could use against her. Not having a rock-solid claim to citizenship qualified.

    At best she files a lawsuit and maybe gets her case resolved in the next 10-20 years or so because the gov will footdrag and the real purpose is to screw her over. So her father’s case will be rejected because she’s not him, he can’t send her money because she’s with ISIS, and it will be years before she gets the resources to even start the process.

    Reading that letter… the 2nd to last paragraph is pretty special. “You have the right to a hearing… you must notify this office in writing within 60 days… of this notice”. Letter dated Jan 15, 2016. So during the time she could have appealed this issue she was busy burning her passport and trying to destroy America.Report

  8. Avatar Dark Matter
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    says:

    We’re talking about someone who seriously expected her god to overthrow various governments and who looked at ISIS and saw white hats. IMHO a lack of awareness of the reality of the situation is expected.Report

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