By Licelle Cobrador, Esq.
American citizenship is regarded as the “highest hope of civilized men” according to Schneiderman v. United States, 320 U.S. 118, 122 (1943).
Most people believe that once U.S. citizenship has been acquired through a process called naturalization, it will be forever. Though rare, it is possible to be divested of the same where it was not rightfully obtained. Denaturalization is a process in which a naturalized immigrant’s U.S. citizenship is revoked by the government.
Background
Efforts to denaturalize citizens deemed unworthy of citizen status are not new. In 2010, the Department of Homeland Security/ DHS Office of Operations Coordination or OPS began coordinating the Operation Janus working group to determine individuals that should not have been naturalized. Fingerprint files were not yet digitized at that time. There were people previously deported who reentered the country using different identities. Some had criminal pasts that would make them ineligible; however, they either had alternative identities and/or they purposely withheld information.
Late 2016, a DHS report called for the digitization of older, paper-based fingerprint files. Immigration and Customs Enforcement/ICE commenced checking these files against current fingerprint records. DHS estimated up to 315,000 older fingerprint records from the 1990s had not been digitized; including approximately 148,000 fingerprint records of those previously deported or those who had criminal records.
The Trump Administration created a Denaturalization Task Force within the United States Citizenship and Immigration Services/USCIS that initiated denaturalization proceedings. In 2018, the USCIS declared its intention to refer over 1,600 cases to the Department of Justice/ DOJ for prosecution. An ICE budget request in 2019 revealed its aspiration to review 700,000 U.S. citizen files, leaving more individuals vulnerable. The largest proportion of denaturalization cases targeted citizens of South Asian, Mexican, Haitian, and Nigerian descent.
Grounds for Denaturalization
A person could be the subject of denaturalization because of the following: 1. Illegal procurement i.e., any eligibility requirement for naturalization that was not met can form the basis of denaturalization such as requirements of residence, physical presence, lawful admission for permanent residence, good moral character or attachment to the U.S. Constitution; 2. Concealment of a material fact or willful misrepresentation. Hiding crucial facts or allowing for the deliberate misinterpretation of their status during the application or the interview process could result in denaturalization. The test for materiality is whether the concealment or misrepresentation tended to affect the decision. And a misrepresentation is willful if it was deliberate and voluntary, which requires only knowledge of the falsity –it does not necessitate intent to deceive.
Here are concrete examples of the denaturalization grounds:
- Obtaining an employer-sponsored green card but never working for that employer;
- Misstating employment in order to prevent the immigration officer from discovering the true employment or business dealing;
- One was petitioned as single but was already married (thereafter, receiving a green card and citizenship without disclosing the true civil status);
- Membership or affiliation with the Communist party, totalitarian party or terrorist organization within five years of naturalization. This means that the applicant was not committed to the principles of the U.S. Constitution;
- A Nazi or war criminal trying to escape prosecution under an assumed identity; and
- One who admitted to smuggling women from South Korea forcing and them to work for him prior to his naturalization. This act adversely reflected on his good moral character and should have barred him for receiving citizenship.
Procedure and Analysis
Upon gathering enough evidence, the USCIS will refer the case to the DOJ. Then the DOJ will file a civil or criminal case for the termination of U.S. citizenship. A defendant may choose to renounce citizenship. Once denaturalized, she or he returns to the prior status. If this is no longer possible, removal proceedings could follow. And should denaturalization be a consequence of criminal activity, jail time will be imminent.
The U.S. government has a high bar for proving a defendant meets the burden of proof for denaturalization (“clear, convincing and unequivocal evidence which does not leave the issue in doubt” for civil cases and “proof that goes beyond any reasonable doubt” that there was a violation of 18 U.S.C. § 1425 for criminal cases). There is no statute of limitations for pursuing a civil denaturalization case while denaturalization as a result of criminal conviction is subject to a ten-year statute of limitation. Further, the Supreme Court has held that small omissions and minor lies that did not influence the award of citizenship do not warrant denaturalization.
Conclusion
The Biden administration issued an Executive Order early this year that declared its commitment to review policies and practices concerning denaturalization. Accomplishing this will better secure the United States immigration system’s integrity.
Research credit: Pooja Talukdar, Esq.#
DISCLAIMER
This column serves primarily as a guide. It aims to provide general information on immigration law. The information provided is for general guidance and reference purposes only and it is not intended to serve as, nor can it be relied upon, as legal advice to address any specific situation. Those with specific questions are strongly encouraged to contact an immigration attorney.
*About the author
Born in Manila, Licelle Cobrador has over 10 years of experience in immigration and nationality law. Prior to establishing her own firm, Cobrador & Associates, PLLC, Licelle was an associate at a boutique immigration firm in Manhattan and a leading firm in Manila.
Licelle received her B.A. from the University of the Philippines, Manila (Cum Laude, Top 20 out of 267). After earning her J.D. from Ateneo de Manila University, she was admitted to practice law in the Philippines. She completed her LL.M at Benjamin N. Cardozo School of Law on a Dean’s Merit Scholarship and was admitted to practice in New York.
Licelle currently serves as Vice President and Executive Director of the Filipino American Legal Defense and Education Fund/ FALDEF and as Volunteer Attorney at the Migrant Center of New York. She is a past co-chair of the Cardozo Law Masters Alumni Community. She is also a member of the Filipino American Lawyers Association of New York/ FALA New York and the National Filipino American Lawyers Association/ NFALA.
Licelle has been selected as TimeIsNow’s Global Filipino Trailblazer. She is recognized as one of Women Today’s Women on the Front Rank, Cardozo Life Magazine’s Movers & Shakers and Cardozo Law’s Outstanding Alumni and has been published in Delaware Law. Licelle is a frequent national and international speaker on U.S. Immigration Law.
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