Trump’s Immigration Crackdown: Denaturalization is Back
President-elect Donald Trump has doubled down on one of his most outrageous campaign promises: deporting 15 million people, including some who are already naturalized U.S. citizens. While it may be virtually impossible to implement Trump’s grandiose ambitions due to the logistical and financial challenges of deporting millions, his administration will still devastate countless lives, including those who thought their citizenship was forever.
Among the tools at their disposal is the obscure judicial process of denaturalization—revoking citizenship granted to immigrants—making naturalized Americans deportable.
Going Beyond Terrorism and War Crimes
Becoming a naturalized U.S. citizen is supposed to mean you get all the rights and protections of citizenship. But the Department of Justice (DOJ) can take that away if they can prove fraud or misrepresentation during the naturalization process.
Historically, it was used sparingly and only in extreme cases, like targeting people with ties to terrorism, war crimes, or human rights violators who may have concealed such backgrounds.
Under the first Trump administration, this rarely used power is getting new attention, and what does it mean to be “truly American” and naturalized citizens are getting nervous.
This is a big expansion of immigration enforcement and has huge implications for immigrant communities and the entire legal system.
Most naturalized citizens will not be affected by Trump’s renewed efforts to denaturalize.
Who’s at Risk?
But those who naturalized by providing false material information (like not disclosing criminal history or obtaining citizenship under false identity) will be at greater risk.
Likely Targets:
- Those who didn’t disclose past deportation orders or criminal convictions.
- Those who naturalized under false identities.
- Naturalized citizens who committed crimes before they were citizens (and didn’t disclose).
What is Denaturalization?
Denaturalization is the legal process of taking away an individual’s U.S. citizenship. Established in 1906, this process allows the government to revoke citizenship if it was obtained by fraud, misrepresentation, or material omission that would have precluded naturalization.
This process allows authorities to strip citizenship from individuals who:
- Illegally Obtained Citizenship: Failing to meet the requirements.
- Committed Fraud or Misrepresentation: Hiding or lying about material facts in the naturalization process.
Denaturalization requires the government to prove an individual obtained citizenship by fraud or misrepresentation. Specifically:
- Willful Concealment: The applicant intentionally misrepresented or withheld information.
- Material Fact: The concealed fact would have made them ineligible for naturalization.
Until the first Trump administration, naturalization was rare and historically targeted serious offenders like war crimes or terrorism.
But someone like Elon Musk, whom many have speculated about his immigration journey, including allegations of working illegally on a student visa, could theoretically be at risk of denaturalization if he illegally worked in the U.S. while on an F-1 student visa, if he intentionally lied about that work, and if that unlawful employment would have made him ineligible for his green card and therefore citizenship.
Fear is part of the strategy
While denaturalization cases are few, the denaturalization efforts may be part of a broader strategy to scare immigrant communities and deter naturalization.
What’s next for immigration under Trump?
Experts say a second Trump administration will double down on policies to reduce both legal and illegal immigration.
Expected tactics
- Supercharged Denaturalization: Will expand despite the small number of cases compared to overall immigrant population.
- Legislative Changes: Will try to limit family-based immigration and visa programs.
- More Enforcement: More focus on investigating old applications for fraud.
How Denaturalization Works
Investigation:
Federal authorities review visa and citizenship applications for inconsistencies, inaccuracies, or omissions.
“Material” misstatements—those that if known would have prevented the applicant from becoming a citizen—are grounds for denaturalization.
Filing a Case:
- Denaturalization cases are filed in federal court where the government must prove its claims. Unlike criminal cases, defendants do not have the right to appointed counsel.
Outcome:
If successful, citizenship is revoked and the individual reverts to their prior immigration status. In most cases, this makes them deportable.
Denaturalization Facts
- Denaturalization does not result in deportation. Instead the individual reverts to their prior immigration status, such as a green card holder. But green card holders can be deported for certain crimes.
- The DOJ must prove its case in federal court as denaturalization requires judicial approval.
- As mentioned above, this process has historically been reserved for the most serious cases, such as terrorism, war crimes or significant fraud.
Why Naturalized Citizens?
Under Trump’s plan, naturalized citizens are not exempt from the administration’s broader deportation plans. Trump administration officials, particularly Stephen Miller, have been saying they will use denaturalization to expand enforcement beyond undocumented immigrants, idealizing past immigration policies from the 1920s to emphasize a cultural element in defining true membership in America.
The Strategy
- Expand Enforcement: Trump’s team will investigate tens of thousands of naturalized citizens for revocation.
- Broaden Criteria: No more limitations on cases. Even small mistakes on applications will be grounds for denaturalization.
- Revive “Operation Second Look”: This from Trump’s first term will supercharge denaturalization by reviewing old cases for any discrepancies, regardless of intent or harm.
The Philosophy
Stephen Miller, the architect of Trump’s immigration policies, has called for a “supercharged” denaturalization process. He says every inconsistency, no matter how small or unintentional, should be scrutinized to see if citizenship was granted improperly. His phrase “America is for Americans only” is a deeply exclusionary approach to immigration.
Denaturalization Consequences
The effects of denaturalization go far beyond the individual who loses citizenship. The ripples impact families, communities and the very fabric of U.S. immigration policy.
- Individual Consequences
- Loss of Citizenship: Revocation makes individuals deportable and strips them of their rights and privileges as U.S. citizens.
- Legal Vulnerability: Without citizenship individuals can’t vote, hold certain jobs or sponsor family members for immigration.
- Financial Burden: Defending against denaturalization requires expensive legal representation which many can’t afford. Without guaranteed counsel defendants are at a huge disadvantage.
- Family Consequences
- Naturalized Children: Minors who became citizens through their parents’ applications will lose their status if their parents are denaturalized.
- American Born Children: Trump has promised to end birthright citizenship so children born to immigrant parents will be stateless if their parents are denaturalized.
- Psychological Harm
- Even if you successfully defend your citizenship the process causes lasting harm:
- Stress and Fear: The possibility of losing your citizenship erodes your sense of belonging and security.
- Second Class Citizenship: Millions of naturalized Americans will start to feel like second class citizens, unsure of their status. The fear of denaturalization will erode their sense of permanence and equality.
- Even if you successfully defend your citizenship the process causes lasting harm:
- Wider Social Consequences
- As journalist Masha Gessen has written, a mass denaturalization campaign will create a system where immigrants live under constant suspicion, undermining trust in the U.S. immigration process and the American dream.
Why Should All Americans Care?
Denaturalization raises the question: what does it mean to be American and is citizenship really permanent?
- Citizenship as a Firewall
- Citizenship has always been seen as a barrier to deportation and a sign of full membership in American society. This effort blows that firewall apart.
- Immigration Policy
- The Trump administration’s rhetoric ties Americanness to culture or race, just like the restrictive immigration policies of the early 20th century. Critics say this undermines the idea of America as a nation of immigrants.
- Second Class Citizens
- Masha Gessen, a journalist and critic, says the denaturalization task force is telling naturalized citizens they are “second class citizens” living under a cloud of conditional acceptance.
History
Denaturalization has a long and uneven history in the United States. Understanding its past helps us understand the current threat to naturalized citizens.
1906 to Mid 20th Century: Setting the Precedent
- It was first codified in 1906 to revoke citizenship obtained by fraud.
- Denaturalization peaked during the World Wars and early Cold War.
- It was often used for political reasons, targeting individuals accused of disloyalty or radical political activity. For example:
- Emma Goldman, an anarchist and pacifist, was denaturalized during World War I for opposing the war.
- Naturalized citizens who joined Communist or Nazi organizations were denaturalized in the 1930s and 1940s.
Late 20th Century: Targeted Use
- Denaturalization was rare and focused on:
- War criminals
- Terrorists
- Human rights abusers
- Cases required evidence of deliberate fraud that would have prevented naturalization.
Post 1967 Restrictions
- The Supreme Court’s decision in Afroyim v. Rusk (1967) held that citizenship is a right, not a privilege and can’t be revoked for post naturalization behavior. Denaturalization could only be pursued if citizenship was fraudulently obtained in the first place.
21st Century: New Focus
- Under the Obama administration denaturalization was rare but used for severe cases, such as individuals concealing violent criminal histories.
- Example: Rasmea Odeh who failed to disclose a bombing conviction in Israel lost her citizenship.
Trump’s First Term: Operation Second Look
- Trump’s Department of Justice expanded denaturalization efforts big time.
- Key Moves:
- Hired dozens of new agents to review naturalization applications.
- Increased cases from a few dozen a year to thousands.
- Targeted individuals whose infractions caused little or no harm.
Biden Administration’s Response
On February 2, 2021 President Joe Biden signed an executive order to review and potentially reverse denaturalization. The order directed the attorney general and secretaries of state and homeland security to:
- Review Policies and Practices: Not use denaturalization and passport revocation excessively or unfairly.
- Promote Fairness: Re-examine denaturalization cases from the Trump era to see if they met the principles of justice and due process.
Advocacy and Reform
- Immigrant rights orgs called it a “good first step” but said more is needed to restore trust in the system.
- Advocates are calling for:
- Full reversal of denaturalization policies from the Trump administration.
- More transparency and oversight to prevent denaturalization abuse in the future.
Trump’s Denaturalization Task Force
During Trump’s first term denaturalization efforts expanded big time with resources shifted to review old naturalization cases for fraud. This included high profile initiatives like Operation Janus and Operation Second Look to find cases where individuals may have hidden information during the naturalization process.
In June 2018 USCIS Director L. Francis Cissna announced the creation of a denaturalization task force to investigate naturalized citizens. This was an expansion of Operation Janus, a long running program to target individuals who obtained citizenship fraudulently.
What is Operation Janus?
- Began in the 2000s Operation Janus reviewed hundreds of thousands of naturalization files to find individuals with past deportation orders or criminal records under other names.
- In 2017 the DOJ filed its first lawsuits under this program against individuals who used fake identities to get citizenship.
- The denaturalization task force is an expansion of these efforts, targeting thousands of cases found by Operation Janus.
Trump’s first administration diverted resources from new immigration applications to old cases:
Trump Era
- 2018: Then-USCIS Director Francis Cissna said they would refer 1,600 naturalization fraud cases to the DOJ.
- 2019: ICE shifted over $200 million to denaturalization efforts.
- Operation Janus uncovered old fingerprint files and found 858 cases of individuals who got citizenship despite having prior deportation orders or criminal records.
- 2020: The DOJ launched a denaturalization initiative and filed cases in federal court.
- Statistical Context:
- Between 2008 and 2020 the DOJ filed 228 denaturalization cases, 94 of them during the first three years of Trump’s presidency.
- Denaturalization became harder to prove after the Supreme Court’s 2017 decision in Maslenjak v. United States which raised the standard of proof for fraud in naturalization applications.
Case Study: Norma Borgono
One example of denaturalization under the Trump administration is Norma Borgono, a 63 year old Peruvian grandmother living in Miami. She became a U.S. citizen in 2007 but was later implicated in a mail fraud scheme through her work. Although she cooperated with authorities and did house arrest, the DOJ said she failed to disclose the criminal activity during the naturalization process. That omission, according to the government, was fraud and made her citizenship invalid.
This case shows how far the administration is willing to go, focusing on past crimes or omissions even if they weren’t intentional or material to the naturalization process.
Trump’s Expanded Approach
Previous administrations focused on national security and human rights cases. Trump’s administration expanded denaturalization to include crimes that occurred before naturalization but weren’t disclosed during the application process. This has a chilling effect on naturalized citizens.
Trump
- Broader Targets: Cases include individuals with lesser offenses such as omissions of minor past crimes or activities unrelated to their citizenship eligibility.
- More Resources: The task force hired more attorneys to review naturalization files, to prosecute thousands of cases.
- Expanded Definition of Fraud: Unintentional errors or omissions are being looked at for materiality.
Chilling Effect on Naturalization
Immigrant advocacy groups, including the ACLU, said the increased scrutiny would deter eligible green card holders from applying for citizenship, fearing retroactive investigations.
The Human Cost of Denaturalization and Immigration Policies
While the number of denaturalization cases is small, the human impact is big:
- Fear Among Immigrants: Increased investigations are causing anxiety among naturalized citizens, even those with minor errors in their applications.
- Family Separation: Restrictive policies are hitting immigrant families hard, delaying reunification and causing emotional trauma.
Long Term
- Over time these policies could reduce immigration by tens of millions, changing the demographic and economic fabric of the U.S.
Trump Immigration Policies and Their Legacy
The Denaturalization Section was one of several controversial initiatives under the Trump administration’s broader anti-immigration agenda which included:
- Travel Bans: Restricting entry from predominantly Muslim countries.
- Family Separation: Enforcing policies that separated children from their parents at the border.
- Asylum Restrictions: Implementing policies that severely limited the ability to claim asylum in the U.S.
Denaturalization fit into this pattern by targeting naturalized citizens, a group previously considered secure in their immigration status.
Threat to Birthright Citizenship
In addition to denaturalization, Trump has promised to end birthright citizenship, a constitutional right under the 14th Amendment. This would undermine the legal foundation of citizenship for children born in the U.S., further destabilizing immigrant families.
Consequences
- Millions of U.S. born children could have their citizenship challenged if Trump’s policies succeed.
- This would create stateless individuals, contrary to international law and human rights.
Immigration Policies in a Second Trump Term
Denaturalization is just one piece of the Trump administration’s overall plan to reduce immigration. Other likely actions:
- Blocking Green Card Categories: Eliminating visa programs like the diversity lottery which brings in 50,000 immigrants a year.
- Slowing Application Approvals: Increased scrutiny and bureaucratic hurdles for legal immigration applications.
- Family-Based Immigration: Measures that could leave many Americans unable to sponsor family members for green cards.
Social and Political Consequences
- Disappointed Sponsors: Many Americans trying to sponsor family members will be delayed or denied.
Labor Market
A smaller labor force could worsen existing shortages in healthcare, agriculture and construction
Economic and Demographic Impact
Economic Impact
- Labor Force Growth:
- Immigration has driven U.S. labor force growth, a major driver of economic growth.
- The combination of Trump’s policies and the pandemic between 2016 and 2022 already reduced GDP growth by 1.3 percentage points, according to a study by the National Foundation for American Policy (NFAP).
- Employers and Consumers:
- Employers will have trouble filling key positions due to labor shortages.
- Consumers will have reduced access to services provided by immigrant workers.
“Limiting both legal and undocumented immigration will slow overall economic growth and disrupt sectors that rely on immigrant labor.” – Robert Lynch, economics professor at Washington College
Tools to Stop Denaturalization
Defending Citizenship
Fighting denaturalization is hard. The system is stacked against you. The government has the upper hand.
No Right to Counsel
Unlike criminal cases, denaturalization cases do not provide legal representation. Many defendants, unaware of the legal process, can’t mount a proper defense and will lose their citizenship.
Burden of Proof
While the government must prove fraud, the complexity of immigration law leaves individuals vulnerable to accusations based on minor errors or omissions.
Costs
Legal fees to defend against denaturalization can be tens of thousands of dollars, out of reach for many.
Legal and Practical Implications
- What is “Material Fraud”?
- The Supreme Court in 2017 in Maslenjak v. United States ruled that only lies or omissions that would have prevented naturalization at the time can justify denaturalization. This limits the government’s ability to strip immigrants of citizenship for minor mistakes. The Supreme Court limited the government’s ability to revoke citizenship by requiring proof of material fraud for denaturalization. Courts can be a check on overreach if they follow this standard.
- Advocacy
- Organizations must educate the public about denaturalization and provide resources to those affected.
- More free or low-cost legal services is key to a fair trial.
- Community Support
- Immigrant communities and legal organizations can provide resources to those at risk and inform them of their rights.
- Public pressure on lawmakers can also move policy.
- Legislation
- Congress can pass laws to limit denaturalization and protect naturalized citizens from overreach.
Denaturalization Deep Dive
Denaturalization, the process of revoking U.S. citizenship from naturalized citizens, has been rare. Between 1990 and 2017 an average of 11 cases were pursued annually. But under Trump, that number has skyrocketed with a big increase in government resources and the creation of new offices and initiatives.
This guide explains the denaturalization process, the legal basis, recent developments and the implications for immigrants and the immigration system.
What is Denaturalization?
Denaturalization is the legal process of revoking a naturalized U.S. citizen’s citizenship. This can happen if the government proves the individual was not eligible for naturalization at the time it was granted or obtained citizenship through fraud or misrepresentation.
Legal Standards
- Government must meet high burden of proof:
- Civil cases: Clear, convincing and unequivocal evidence.
- Criminal cases: Beyond a reasonable doubt.
- Denaturalization cases must go through federal court so there is judicial oversight.
Grounds for Denaturalization
Denaturalization is governed by specific sections of U.S. law that outline when citizenship can be revoked:
- Illegal Procurement or Fraudulent Misrepresentation
- Statute: Immigration and Nationality Act (INA) § 340(a).
- Criteria:
- Citizenship was procured illegally or through concealment of a material fact, leading to the potential for citizenship annulled.
- Willful misrepresentation that affected the naturalization decision.
- Examples: Falsifying personal information, omitting past crimes or using false identities.
- Naturalization Fraud Convictions
- Statute: 18 U.S.C. § 1425.
- Criteria:
- Convicted of procuring or attempting to procure naturalization contrary to the law.
- Examples: Submitting fake documents or bribing officials during the application process.
- Wartime Military Service
- Statute: INA § 329(c).
- Criteria:
- Naturalization through wartime military service can be revoked if the individual is discharged under “other than honorable conditions” within five years.
- Example: Falsifying enlistment qualifications to get expedited citizenship.
- Refusing to Testify Before Congress
- Statute: Proviso to INA § 340(a).
- Criteria:
- A Cold War-era provision allowing denaturalization for refusing to testify about alleged subversive activities before Congress.
- Example: Used historically against suspected communists.
Initiatives and Developments
- Operation Janus
- Launched: 2010.
- Goal: Identify individuals who obtained citizenship or legal permanent residence under false identities or with prior deportation orders.
- Findings:
- A 2016 DHS OIG report found:
- 1,029 naturalized citizens with deportation orders under different identities.
- 315,000 missing fingerprint records for non-citizens with criminal convictions or final deportation orders.
- 148,000 old fingerprint cards not digitized or reviewed by ICE.
- A 2016 DHS OIG report found:
- Operation Second Look
- Launched: 2016.
- Goal: Expanded naturalization case audits to find discrepancies or fraud.
- Results: Denaturalization referrals increased 600% between 2017 and 2020.
- Denaturalization Section
- Created: February 2020.
- Location: Within the DOJ’s Office of Immigration Litigation.
- Mission:
- Prioritize and handle denaturalization cases.
- Investigate and litigate citizenship revocation.
- This is a big increase in denaturalization capacity.
Denaturalization Results
- Current Numbers
- Despite all the focus and resources, the number of individuals denaturalized is still very small:
- USCIS was going to refer 1,600 cases to the DOJ for prosecution.
- Between 1990 and 2017, an average of 11 cases per year were pursued.
- Systemic Issues
- Chilling Effect: The increased scrutiny may deter legal permanent residents from applying for citizenship, fearing retroactive investigations.
- Increased Delays: Diverting resources from application processing to investigations adds to an already overwhelmed immigration system.
- Bigger Picture
- Advocates say these efforts create a climate of fear and mistrust in immigrant communities.
- Critics argue this is part of a broader effort to limit immigration and discourage naturalization applications.
The Denaturalization Process
- Investigation
- USCIS or ICE finds fraud or misrepresentation in an individual’s naturalization process.
- Audits of old files (e.g. Janus and Second Look) often trigger investigations.
- Referral
- Cases are referred to the DOJ Denaturalization Section for review and prosecution.
- Filing
- DOJ files a civil or criminal case in federal court, stating the grounds for denaturalization.
- Court Proceedings
- Individual can contest the government’s claims.
- The government must meet high burden of proof.• The government must meet high burden of proof.
- Result
- If denaturalization is granted, citizenship is revoked and the individual reverts to their prior immigration status (e.g. lawful permanent resident).
- If no other status applies, the individual may be deported.
Legal Protections and Obstacles to Denaturalization
Supreme Court Cases
- Maslenjak v. United States (2017): The Supreme Court held that small mistakes or irrelevant statements cannot be used to denaturalize unless they were material to the naturalization decision.
Evidence Standards
- Denaturalization requires clear and convincing evidence in civil cases or beyond a reasonable doubt in criminal cases. These high standards are a check against arbitrary or abuse of denaturalization power.
Denaturalization in Civil Cases: Grounds and Process
Denaturalization—the revocation of U.S. citizenship—can be pursued in civil cases if the government proves the individual was not eligible for naturalization at the time it was granted. This page explains the legal grounds for civil denaturalization, the process and the key factors that can lead to citizenship revocation.
1. Grounds for Denaturalization in Civil Cases
A. Illegal Procurement or Concealment and Willful Misrepresentation
A naturalized citizen can be denaturalized if:
- Illegally Procured: The individual did not meet the legal requirements for naturalization.
- Obtained Through Concealment or Willful Misrepresentation: The individual knowingly made false statements or omitted material information to get naturalized.
These two often overlap as misrepresentation is often tied to illegally procured and invalid naturalization applications.
2. Key Requirements for Naturalization and Problems
- Naturalization requires the applicant to be a lawful permanent resident (green card holder) at the time of application.
- Fraudulent LPR Status: If the underlying green card was obtained fraudulently (e.g. through a sham marriage or misrepresentation on a visa application), the citizenship derived from it can be revoked.
- Historical Examples: Cases under the Displaced Persons Act of 1948 involved individuals who concealed their participation in Nazi persecution. Even indirect involvement, such as being a concentration camp guard, could disqualify an individual from getting a visa and subsequently naturalization.
Example:
Joe immigrated as an unmarried child of a lawful permanent resident. But he was married before immigrating and didn’t disclose it. Since his marriage made him ineligible for his green card, Joe’s naturalization can be revoked.
B. Continuous Residence
- Applicants must be present in the U.S. for five (or three) years before applying and until naturalization.
- Breaking Residency: Absences of one year or more break continuous residence. Absences of more than six months but less than a year may also break residency unless justified.
- False Claims: Making false statements about one’s residence or misrepresenting absences can lead to denaturalization.
Example:
An applicant lists their estranged spouse’s address as their own during the three-year marital period required for naturalization. If found out, this misrepresentation can be a ground for denaturalization.
C. Physical Presence
- Applicants must be physically present in the U.S. for at least half of the five (or three) years before applying.
- Omissions: Failing to disclose trips abroad that exceed the allowed time can lead to denaturalization.
Example:
Lupe traveled to Mexico frequently but didn’t list absences that exceeded the allowed time. When these omissions were found out, her case was referred for denaturalization.
- Applicants must show good moral character during the required period.
- Criminal History: Crimes committed before naturalization but not disclosed on the application can disqualify an individual from meeting this standard.
- Misconduct: Even minor misconduct, such as petty offenses or false testimony, can raise moral character issues.
Example:
An individual committed a crime before obtaining naturalization, but wasn’t arrested until after becoming a citizen. Their failure to disclose this crime during the application process can lead to denaturalization.
E. Attachment to Constitutional Principles and Good Order
- Applicants must take an oath of allegiance to the Constitution and show they are “well disposed to the good order and happiness of the United States.”
- Cold War-Era Provision: INA § 340(c) assumes that joining certain organizations within five years of naturalization means lack of attachment to constitutional principles.
Example:
A naturalized citizen joins an organization hostile to the U.S. Constitution within five years of becoming a citizen. Unless there’s countervailing evidence, they can be denaturalized.
3. The Denaturalization Process
- Investigation
- U.S. Citizenship and Immigration Services (USCIS) or Immigration and Customs Enforcement (ICE) finds potential fraud or ineligibility cases.
- Audits of old files or tips from other agencies trigger investigations.
- Referral
- Cases are sent to the Department of Justice (DOJ), specifically the Denaturalization Section, for prosecution.
- Filing a Case
- DOJ files a civil complaint in federal court, listing the reasons for denaturalization.
- Proceedings
- The government must show clear, convincing and unequivocal evidence in civil cases.
- The individual has the right to defend their case in court.
- Outcome
- If the government wins, citizenship is revoked and the individual goes back to their prior immigration status (e.g. lawful permanent resident).
- If no other status applies, the individual can be removed (deported).
4. Key Considerations and Safeguards
Legal Protections
- The government has a high burden of proof to avoid denaturalization being arbitrary or political.
- Supreme Court cases like Maslenjak v. United States (2017) have held that only material misrepresentations or omissions can justify denaturalization.
Impacts on Immigrant Communities
- Fear and Mistrust: The threat of denaturalization creates anxiety among immigrants, may discourage eligible individuals from applying for citizenship.
- Resource Allocation: Investigating past cases may take resources away from processing new applications, further backlogging an already backlogged system.
Denaturalization: Concealment, Misrepresentation, and Other Grounds
Denaturalization, the process of revoking U.S. citizenship, has many legal grounds and processes. This guide covers concealment, willful misrepresentation, military service, Cold War-era provisions, and the denaturalization process, including defenses and court cases.
I. Concealment and Willful Misrepresentation
Grounds for Revocation
Naturalization can be revoked if:
- Concealment of a Material Fact
- Willful Misrepresentation
The Supreme Court in U.S. v. Kungys said:
- Concealment must be willful, and misrepresentation must be of material facts.
- A fact is “material” if it has a “natural tendency” to mislead immigration officials, even if the concealed information wouldn’t necessarily have prevented naturalization.
Four Requirements
To revoke citizenship for concealment or misrepresentation the government must:
- Willfulness: The individual knowingly hid or falsified information.
- Concealment or Misrepresentation: False information or omissions during the naturalization process.
- Materiality: The concealed or false fact was relevant to the applicant’s eligibility.
- Intent to Procure Naturalization: The concealment or misrepresentation was to get citizenship.
II. Examples of Concealment and Misrepresentation
- Criminal History: Claiming not to have committed crimes or omitting arrests.
- False Testimony: Giving false answers during the naturalization interview.
- Address Fraud: Claiming to live at an address that is not the applicant’s actual home.
- Failure to Take the Oath: In rare cases, not completing all steps of the naturalization process, including taking the citizenship oath, has led to revocation.
- Court Precedent: If a question during the naturalization process was ambiguous and the applicant’s answer was reasonable, it can’t be fraud or concealment.
III. Wartime Military Service
Under INA § 329(a), non-citizens can naturalize through military service during wartime. But citizenship can be revoked if:
- The individual is discharged “other than honorably” before completing five years of military service.
Constitutional Questions
- Critics argue that revoking citizenship based on post-naturalization military conduct violates constitutional protections, as the Fourteenth Amendment protects citizenship unless voluntarily relinquished.
IV. Cold War-Era Provisions (§ 340(a) Proviso)
Naturalization can be revoked if, within 10 years of naturalization, an individual:
- Refuses to testify before Congress on “subversive activities.”
- Is convicted of contempt of Congress as a result.
This provision assumes the individual concealed material facts at the time of naturalization or didn’t have attachment to the Constitution. Though a relic of the Cold War, this provision is still on the books.
Constitutional Concerns
- The proviso’s assumption that future behavior means past concealment raises constitutional issues, including equal protection and due process concerns.
V. Denaturalization Process
Step-by-Step Guide
- Complaint Filing:
- Government files a complaint in U.S. district court, with supporting affidavits showing good cause.
- Jurisdiction is based on the defendant’s current residence.
- Investigation and Recommendation:
- USCIS investigates and recommends denaturalization.
- U.S. Attorney’s Office prosecutes the case.
- Burden of Proof:
- Government must prove its case by clear, unequivocal and convincing evidence.
- Courts must construe facts in favor of the naturalized citizen whenever possible.
Denaturalization Guidelines
- DOJ guidelines advise against revocation for minor errors or procedural irregularities unless there was fraud.
- Long standing good conduct after naturalization can weigh against revocation.
VI. Criminal Revocation of Citizenship
Statutory Basis
18 U.S.C. § 1425 requires courts to revoke citizenship when an individual is convicted of:
- Knowingly and unlawfully procuring naturalization.
- Producing false documents related to naturalization.
Burden of Proof
- In criminal cases, government must prove fraud beyond a reasonable doubt.
- Revocation is automatic upon conviction, no notice or hearing required.
Materiality Standard
- The false statement must have “played a role” in naturalization.
- Citizenship can’t be revoked for immaterial falsehoods unrelated to eligibility.
VII. Defenses Against Denaturalization
A. Eligibility for Citizenship
- If the individual can prove they would have been eligible for citizenship, denaturalization can’t proceed.
- Example: In Maslenjak v. U.S., the Supreme Court held that eligibility for citizenship is a complete defense even if fraud occurred during the process.
B. Factual Challenges
- Defendants can rebut government allegations by presenting evidence that challenges the facts of the case:
- Example: In a pre-WWII case, a court held that an individual who lived abroad temporarily successfully proved they intended to remain a U.S. resident and thus defeated denaturalization.
C. Procedural Errors
- Cases have been dismissed where the government failed to authenticate evidence as required by federal rules.
VIII. Broader Impact
Chilling Effect
Denaturalization could discourage eligible immigrants from applying for citizenship, fearing retroactive review of their applications.
Due Process
- Courts stress the importance of fairness and caution in denaturalization cases, given the value of U.S. citizenship.
Materiality
What is Materiality
- Materiality looks at whether the concealed or misrepresented fact had a “natural tendency” to affect the decision of the immigration official.
- Supreme Court Precedent: In Kungys v. United States, the Court held that a misrepresentation or omission must meet this standard to warrant revocation of citizenship.
Principles
- The information doesn’t have to have disqualified the applicant from naturalization; it just has to be relevant enough to have influenced the decision.
- Materiality is only required for cases of concealment or misrepresentation, not for illegal procurement of citizenship.
II. Legal Standards for Proving Materiality
1. Causative Connection
The government must prove that the misrepresentation or concealment either:
- Directly disqualified the individual, or
- Would have triggered an investigation that would have uncovered disqualifying facts.
Example: In Maslenjak v. United States, the Supreme Court held that the misrepresentation must have caused the individual to acquire citizenship. The Court said:
- If the misrepresented fact was itself disqualifying, the link to naturalization is obvious.
- If not disqualifying, the government must show that discovery would have revealed other disqualifications.
2. Burden of Proof
- Clear, unequivocal and convincing evidence.
- Courts require a lot of evidence to take away citizenship, given the value of citizenship rights.
III. Court Decisions on Materiality
Important Cases
- Kungys v. United States
- Misrepresentations about date and place of birth were immaterial because they were irrelevant.
- Maslenjak v. United States
- False statements about a spouse’s military service were evaluated for relevance to the eligibility criteria.
- Chaunt v. United States
- Failure to disclose old arrests for minor offenses was immaterial because the arrests were not for moral turpitude or eligibility.
Rejected Defenses
- Courts have rejected arguments that certain arrests or misstatements were immaterial if they would have closed off lines of inquiry that would have revealed disqualifying information.
IV. Defenses to Materiality
- Eligibility
- Example: In Maslenjak, the Court said showing eligibility at the time of naturalization can prevent revocation.
- Ambiguous Questions
- If a naturalization question is ambiguous, courts may find the applicant’s answer was not intentionally misleading.
- Example: In Nowak and Maisenberg, the Supreme Court held that questions about “anarchy” were too vague to require disclosure of Communist Party membership.
- Truthful Despite Misinterpretation
- The applicant can argue their answer was truthful based on a reasonable interpretation of the question.
- Example: In U.S. v. Profaci, the Second Circuit held that the question “Have you ever been arrested?” could be reasonably interpreted to only apply to U.S. arrests.
V. Procedural Defenses
- High Burden of Proof
- The government must show clear and convincing evidence that the misrepresentation was material to the naturalization.
- Courts are cautious when taking away citizenship long after it was given.
- Statute of Limitations
- Courts have held there is no statute of limitations on denaturalization.
- Procedural Errors
- Procedural errors, such as failure to give notice of denaturalization, can be grounds for dismissal.
- Example: In U.S. v. Ataya, the conviction underlying denaturalization was vacated due to procedural errors.
VI. Equal Protection and Materiality
Equal Protection Claims
- Naturalized citizens have argued that treating them differently from native-born citizens violates the Fifth Amendment’s Equal Protection Clause.
- Courts have held denaturalization statutes are constitutional, distinguishing between citizenship rights and fraud.
Important Cases
- Schneider v. Rusk
- The Supreme Court struck down a statute that discriminated against naturalized citizens living abroad, saying native-born and naturalized citizens are equal.
- Current Law
- While naturalized citizens can be treated differently for fraud-related revocations, it must be rational.
VII. Practical Considerations
- Consequences of Misrepresentation
- Misrepresentation, even if immaterial to eligibility, can raise moral character issues and impact future immigration applications.
- Example: False statements in other contexts can still create doubt about honesty during naturalization.
- Chilling Effect
- Fear of retroactive review and denaturalization may deter eligible immigrants from becoming citizens even if their applications are truthful.
- Long-Term Consequences
- Denaturalization proceedings show the importance of transparency and accuracy in naturalization applications to avoid problems later.
Equitable Discretion, Administrative Denaturalization and Derivatives
This guide covers denaturalization, including limits of judicial discretion, administrative denaturalization, consequences of losing citizenship and derivatives such as children and spouses.
I. Equitable Discretion in Denaturalization
Courts Cannot Exercise Discretion to Refuse Denaturalization
- The Supreme Court has said naturalization is a privilege, not a right. Courts have no “equitable discretion” to deny denaturalization if the statutory requirements were not met.
- Case: Fedorenko v. United States held denaturalization is mandatory if citizenship was obtained by illegal procurement or willful misrepresentation of material facts.
Government Negligence Is Not a Defense
- Applicants can’t argue the government’s failure to catch errors during the naturalization process wipes out grounds for denaturalization.
- Example: In U.S. v. Benavides, defenses like government negligence or comparative negligence were deemed irrelevant in denaturalization.
II. Administrative Denaturalization Enjoined
Limited Administrative Authority
- INA § 340(h) used to allow the Attorney General to administratively revoke naturalization but that power has been curtailed.
- Administrative revocation of naturalization is no longer allowed.
- Only federal courts can revoke citizenship through judicial proceedings.
- Administrative agencies like USCIS can cancel naturalization certificates if they were fraudulently issued but can’t strip individuals of citizenship.
Important Case: Xia v. Tillerson
- In this case, Chinese nationals challenged the administrative cancellation of their naturalization certificates.
- The court held:
- Canceling a naturalization certificate does not revoke the underlying citizenship.
- If citizenship is in question, the government must initiate judicial proceedings under INA § 1451.
III. Consequences of Denaturalization
Relation-Back Doctrine
- Revocation of citizenship is retroactive, as if the person was never naturalized.
- The individual reverts back to their pre-naturalization immigration status (e.g., LPR or undocumented).
Criminal Consequences
- Crimes committed after naturalization can’t be used as grounds for deportation once citizenship is revoked.
- Supreme Court Ruling: The relation-back doctrine doesn’t apply to post-naturalization crimes.
IV. Derivatives
Derivatives Defined
- Derivatives are individuals who claim citizenship through a parent or spouse, usually children born abroad or spouses of citizens.
Rules
- Concealment or Misrepresentation
- If a parent or spouse loses citizenship for these reasons, derivative citizens lose theirs too, wherever they are.
- Example: If a parent lied about prior convictions to get citizenship, the child’s derivative citizenship is also revoked.
- Illegal Procurement
- Derivatives don’t lose citizenship if the parent or spouse’s citizenship is revoked for illegal procurement.
- Example: A parent’s invalid marriage might void their citizenship but wouldn’t affect the child’s status.
- Other grounds (e.g. military service or subversive activities)
- Derivatives lose citizenship only if they are outside the U.S. at the time of the parent’s denaturalization.
Examples of Derivative Outcomes
- Military Service: If a parent gets citizenship through military service but is dishonorably discharged, children outside the U.S. lose their citizenship. Children in the U.S. keep theirs.
- Misrepresentation: If a parent lied on the application, derivatives lose citizenship wherever they are.
V. Derivative Citizenship Rules Summary
Grounds for Revocation
| Grounds for Revocation | Living in the U.S.? | Living Outside the U.S.? |
| Illegal Procurement | No loss of status | No loss of status |
| Concealment or Misrepresentation | Citizenship revoked | Citizenship revoked |
| Other Grounds (Military/Subversive Acts) | Retains citizenship | Citizenship revoked |
VI. Practical Considerations
Protecting Citizenship
- Naturalized citizens should be honest in their applications and aware of the consequences of their actions before and after naturalization.
Impact on Family Members
- Derivatives should monitor any legal challenges involving the principal applicant as the outcome may affect their status.
Administrative Errors
- Administrative errors in issuing certificates may require judicial resolution to determine the status of the affected individuals.
United States v. Farhane: A Denaturalization Case
The case of United States v. Abdulrahman Farhane is an important case related to denaturalization issue. This article breaks down the key events and implications of this big legal battle that affects naturalized citizens.
Background: Farhane’s Story
- Who is Abdulrahman Farhane?
- Moroccan-born, naturalized Muslim American living in Brooklyn.
- Built a life in the U.S. over 30 years, with two American-born kids.
- The Guilty Plea
- In 2006, Farhane pleaded guilty to federal charges, his lawyer advised him to do so.
- He served 11 years in prison, good time, and got out early.
- The Denaturalization Threat
- After his release, the Department of Justice (DOJ) started to pursue his U.S. citizenship revocation.
- If successful, Farhane would be deported and his children’s derivative citizenship would be revoked.
Legal Issues: Effective Counsel
- Ineffective Assistance of Counsel
- Farhane’s original lawyer didn’t tell him about the denaturalization consequences of his guilty plea.
- The omission is the basis of Farhane’s motion to vacate his plea.
- The Creating Law Enforcement Accountability & Responsibility (CLEAR) Project at CUNY Law, along with Wilmer Hale, represents Farhane.
- They argued that the failure to advise Farhane violated his Sixth Amendment right to effective counsel.
Court Proceedings: Timeline
Initial Proceedings
- 2019-2020: Farhane filed a 28 U.S.C. § 2255 motion to vacate his guilty plea.
- The district court denied the motion in March 2020.
- October 2024: The en banc court reversed the district court’s decision.
- Holding: Naturalized citizens must be advised of denaturalization and deportation consequences at the time of guilty plea.
What it means
For Naturalized Citizens
- Legal counsel must inform defendants of immigration consequences of guilty pleas.
- Stronger defense against retroactive denaturalization.
For Immigration Law
- Trump administration’s effort to expand denaturalization beyond war criminals and Nazis to Muslim Americans and other groups.
- Educates on due process for naturalized citizens facing legal trouble.
For Farhane and His Family
- Farhane keeps his citizenship and his children keep their citizenship.
- Big win for advocates and immigrant rights groups.
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