The Trump administration is creating a new office within USCIS to focus on identifying immigrants who are suspected of cheating to get their green cards or citizenship and to initiate denaturalization proceedings against them. The new denaturalization office will be located in Los Angeles and will have a least a dozen attorneys on staff. In the meantime, a USCIS team already has been reviewing more than 2,500 naturalization files for possible denaturalization, and more than 100 cases have been referred to the Department of Justice (DOJ) for possible action. The administration expects to review some 700,000 immigrant files.
Although previously quite rare, the government can and has stripped naturalized U.S. citizens of their citizenship through the denaturalization process, the revocation of U.S. citizenship of a naturalized immigrant. (Natural-born U.S. citizens may not have their citizenship revoked against their will, since birthright citizenship is guaranteed by the 14th Amendment to the Constitution.) In the past, the government focused its denaturalization efforts on individuals who committed egregious crimes, including suspected war criminals who lied on their immigration paperwork (most notably former Nazis), and terrorist funders. In those cases, USCIS and the DOJ pursued cases as they arose, but not through a coordinated effort. The new office changes that paradigm.
When Can Denaturalization Occur?
The federal government may seek to revoke U.S. citizenship under two general grounds: (1) illegal procurement of naturalization, and (2) procurement of naturalization by concealing a material fact or by willful misrepresentation. Procuring naturalization illegally is when the individual was not eligible for naturalization in the first place because he or she does not meet or failed to comply with all the statutory requirements for naturalization. In such a case, the individual’s U.S. citizenship can be revoked even if the individual is innocent of any willful deception or misrepresentation. In addition, the federal government can denaturalize an individual if he or she is or becomes a member or affiliated with the Communist Party, another totalitarian party, or a terrorist organization within 10 years immediately preceding the filing of the naturalization application or the five years immediately following naturalization. In these cases, affiliation with certain political parties or organizations precludes naturalization because it shows that the individual is not attached to the principles of the U.S. Constitution.
The federal government also may seek to denaturalize an individual if there is “deliberate deceit on the part of the person” in failing to disclose or misrepresenting a material fact that influences the decision to award the individual U.S. citizenship. The concealment or misrepresentation of a material fact can be made orally during the naturalization interview or in writing on the naturalization application. For example, an individual who misstates his or her employment in order to prevent an USCIS adjudicator from finding out his or her real employment activity has engaged in concealment. That individual would be at risk of denaturalization if the concealment or misrepresentation was material to the individual obtaining citizenship.
Why Now? Why is the Federal Government Focusing on Denaturalization Cases?
Efforts to denaturalize individuals are not new even though the USCIS office is. In 2010, a DHS task force started to identify individuals who should have been barred from naturalization. Although USCIS checks applicants’ fingerprints against both the DHS and the FBI digital fingerprint repositories when processing naturalization applications, older fingerprint records had not been digitized (some 315,000 records), including about 148,000 fingerprint records of individuals ordered deported or who had criminal records. This created a possibility that those individuals could have naturalized under an alternate identity, and ICE has begun to digitize the older fingerprint records.
In 2016, the DHS Office of Inspector General found at least 858 cases of people who were ordered deported or removed but later obtained U.S. citizenship using an alternate identity because their fingerprint records had not been digitized.
What are the Limits to Denaturalization?
Denaturalization can only occur by a judicial order either through civil proceedings or a criminal conviction for naturalization fraud. USCIS refers cases for civil and criminal denaturalization to the DOJ when there is “sufficient evidence” that an individual is subject to one of the grounds of denaturalization. The DOJ’s U.S. Attorney’s Office must then file revocation of naturalization actions (for civil denaturalization cases) or criminal charges (for criminal denaturalization cases) in federal district court. Moreover, the burden of proof that the government must meet is high.
For civil denaturalization, the government must show “clear, convincing, and unequivocal evidence which does not leave the issue in doubt” that the individual procured naturalization illegally and/or concealed or willfully misrepresented a material fact during the naturalization process. There is no statute of limitations for pursuing a civil denaturalization case.
For a criminal conviction, the federal government must show “proof beyond a reasonable doubt” that the individual knowingly obtained or attempted to obtain naturalization through fraud for him- or herself or for another individual. Denaturalization as a result of a criminal conviction is subject to a 10-year statute of limitation.
An individual whose U.S. citizenship is revoked returns to the immigration status he or she had before becoming a U.S. citizen. That individual may be deported if she does not have lawful immigration status after denaturalized and/or can serve jail time if U.S. citizenship was revoked because of a criminal conviction.
Should People Be Concerned About Denaturalization?
Again, denaturalization is rare. Nevertheless, there are more than 20 million naturalized Americans in the United States. As a result, there is concern that the federal government’s denaturalization efforts could lead to the revocation of U.S. citizenship of many individuals who made minor or unintentional mistakes or omissions in their naturalization application. Some of the questions during the naturalization process are broad and vague, such as “Have you ever committed, assisted in committing, or attempted to commit, a crime or offense for which you were not arrested?” In addition, courts have not clarified what constitutes an offense that was material to the individual obtaining citizenship and could be the basis for a denaturalization proceeding. A broad interpretation of the grounds for denaturalization could adversely affect many naturalized Americans, especially because there is no statute of limitations for civil denaturalization. Just the creation of this new office in and of itself is “undoing” their naturalization by taking away these Americans’ assumption of permanence.
In 2017, the Supreme Court held in a unanimous decision in Maslenjak v. United States that only an illegal act that played a role in an individual’s acquisition of U.S. citizenship could lead to criminal denaturalization, narrowing the scope under which an individual may be denaturalized. The Supreme Court ruled that if an applicant made a false statement during the citizenship process, the statement must have played some role in the individual obtaining citizenship in order to warrant the revocation of citizenship. The Court stated that “small omissions and minor lies” that did not influence the award of citizenship do not necessitate denaturalization. Yet, it remains to be seen how courts will determine whether a false statement played a role in an individual obtaining citizenship.