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July 23, 2018

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Jon Weinberg

Steve, your use of the word "fraudulent" is leading you astray, I think. Naturalization can be revoked without a showing that the naturalized citizen engaged in fraud or that she deliberately concealed material facts. See Fedorenko v. United States, 449 U.S. 490, 505-06 (1981) ("Failure to comply with any of [the statutory prerequisites to the acquisition of citizenship] renders the certificate of citizenship 'illegally procured,' and naturalization that is unlawfully procured can be set aside."); see, e.g., Friend v. Reno, 172 F.3d 638, 646-47 (9th Cir. 1999), cert. denied, 528 U.S. 1163 (2000). The stakes in a criminal prosecution, as in Maslenjak, are higher, but denaturalization need not be accompanied by criminal prosecution. If DHS initiates a major effort, supported by personnel and resources, to find people to denaturalize, then institutional imperatives will cause it to find them – whether the cases against those people are well-supported or not, and whether or not the folks in question are the sort of bad actors you’re imagining.

Steve L.

Thanks for the comment, Jon, but I don't follow your point about Fedorenko. The majority held "that if petitioner had disclosed the fact that he had been an armed guard at Treblinka, he would have been found ineligible for a visa under the DPA. This being so, we must conclude that petitioner's false statements about his wartime activities were 'willfu[l] [and material] misrepresentation[s] [made] for the purpose of gaining admission into the United States as an eligible displaced person.'"

So the statutory prerequisite that Fedorenko failed to meet was truthfulness on his visa application, in that he indeed concealed a material fact about his wartime activity.

I agree, though, that there could be overzealous cases brought against people who are not bad actors, as may be the case for the Peruvian woman in the Times article. And your point is well taken about a major DHS effort inevitably leading to more cases. But what do you think should happen in cases where applicants have lied about prior convictions and deportation orders?

Jon Weinberg

The point of my quote from Fedorenko was merely the Court's recognition, in the quoted language, that the statute permits denaturalization so long as the target was ineligible at the time of her citizenship acquisition, without regard to whether she engaged in fraud. You're right that that language was dictum -- Mr. Federenko, in fact, had engaged in fraud. But in other cases, like the Friend case I cited, individuals have been denaturalized even though they made no fraudulent representation.

In answer to your question, I think there are cases where denaturalization is warranted. But if I were a naturalized citizen and I knew that DHS was pouring resources in a unit devoted to flyspecking my record to see if they could find something justifying denaturalization . . . yeah, I'd be sorta concerned about that.

Steve L.

I guess it depends on whether DHS is flyspecking peoples' records. With over 22 million naturalized citizens, and additional new citizens numbering 700,000+ annually, that seems unlikely, no matter how many resources are added.

According to the Times article (and another on The Hill http://thehill.com/homenews/administration/398116-trump-ramps-up-scrutiny-of-legal-immigrants), most of the effort is going toward identifying people who used false identities to conceal felony convictions or deportation orders, which does not strike me as unreasonable.

Still, it is also reasonable to be skeptical of everything the Trump administration does on immigration, given the general tenor of his comments.

Jennifer Hendricks

I don't think it's obvious that naturalization has to be revocable. We have plenty of natural-born citizens who have committed and concealed crimes. Unlike with them, the government had a chance to reject the naturalization application. New investigative technologies do not vitiate other statutes of limitations. Why should they here?

Steve L.

That is an interesting proposition, Jennifer. I guess I agree that naturalization could in theory be irrevocable. But what then would be the disincentive to lying in order to obtain it?

The comparison to birthright citizenship is inexact. Yes, we have natural born citizens who have committed and concealed crimes, but that could only happen after becoming a citizen (at birth), and thus would have no bearing on the way that citizenship was obtained. The same principle applies equally to naturalized citizens -- nothing they do afterward can affect their citizenship.

I am more open to the statute of limitations argument. There is currently no statute of limitations for fraudulent procurement, but I am very sympathetic to the idea that ten or twenty years of good citizenship ought to count for something. In Fedorenko, SCOTUS held that the courts do not even have discretion to grant equitable relief from denaturalization, which strikes me as far too harsh.

Jennifer Hendricks

My answer to "what's the disincentive" would be, partly, the point at the end of your comment--revocation of citizenship is a drastic penalty for an offense (perjury) that is rarely punished in any context.

And I think the public shock that you're seeing is telling. The idea that citizenship could be revocable is terrifying, and it's no coincidence that this ramp-up is happening at the same time that the attack on birthright citizenship is also getting more vocal.

I understand that there's something unsavory about allowing someone to benefit from a deception in the citizenship process, but given the numbers, the ability to revoke the citizenship of a few Nazis doesn't justify the cloud over people who I'm willing to assume are currently being or will soon be targeted based on race, nation of origin, and political activism. (Indeed, the criteria of felony conviction or prior deportation would miss the Nazi but reach a lot of people who were targeted for prosecution or deportation on illegitimate grounds.) And, more fundamentally, it doesn't justify weakening the security of being a citizen of the U.S.

Also, I'm wondering to what extent is the revocation of citizenship retroactive? Hypo: I become a naturalized citizen, and after five years of residency, I give birth to a child while overseas; the child's father is not a US citizen. If my citizenship is later revoked, does my child also lose citizenship? How do we think Jeff Sessions would answer that question?

Steve L.

If it turns out that people are targeted for denaturalization based on race, national origin, or political activism, I will immediately admit that I was wrong. So far, that does not seem to be happening, but I share your mistrust of the current attorney general.

anon

The US residents being attacked based on a combination of national origin and political activism are from Russia.

They are all agents of the Kremlin, as everyone knows.

anon

Correction:

As some erroneously think they know.

Cassandra Robertson

I am actually working on a law review article about denaturalization. And I think the current policies are even more troubling than the NY Times article suggests. First, Operation Janus is focusing on the fingerprint files of individuals from "special interest" countries (which are nearly all Muslim countries--so yes, a targeted focus by national origin, closely correlated to religion). It's not just new citizens at risk--the first denaturalization under Operation Janus involved a man who sought asylum in the US as a teenager, and became a citizen more than a decade ago. He didn't speak English when he moved here in 1991.

We now know based on the digitized fingerprint records that were apparently two proceedings filed within months of each other--one under the name Baljinder Singh, and another under the name Davinder Singh. The asylum seeker never showed up to the "Davinder" case in 1992, but did show up to the "Baljinder" case two months later. The obvious inference is that the "Davinder" case was erroneously filed under the wrong name, but the two cases were never connected until 2017. The problem? When "Davinder" didn't show up, there was a removal order for him entered at the time the "Baljinder" case was going forward. So he was technically ineligible for citizenship (though he probably didn't know it--and if he had known it, he almost certainly got have gotten the order vacated).

So then what happens? Well, in 2017, the government files a denaturalization petition for Baljinder, and serves it by leaving the summons at his last known address (technically proper service under FRCP 4). But he may well not live at that address anymore. He's a citizen (well, was, at that time), so there's no requirement that he update his address with the immigration authorities. So of course he doesn't show up to the denaturalization hearing, and there's no attorney to appear for him. The court therefore takes all of the government's statements as true, including an inference of fraudulent intent, and the government gets a summary judgment of denaturalization in the defendant's absence.

It's totally possible that even today, Baljinder Singh has no idea that he is no longer a citizen. He might find out when he tries to renew a passport or go to vote.

And even worse, as Jon points out above, denaturalization can be done either through civil or criminal proceedings. But attorneys in the Sessions DOJ have recommended that US Attorneys file such action as civil cases wherever possible--why? Because civil defendants are not entitled to paid legal counsel, and so it is easier to secure denaturalization in a civil proceeding.

It is definitely a problem.

anon

The left continuously sifts thru mountains of evidence, strains out an anecdotal incident (like the case described by Cassandra) and then draws the most negative generalized inference possible. The case she cites doesn't prove anything other than some POSSIBLE garden variety bureaucratic f ups.

Is more possible? Sure. But, there is no reason to believe, based on what is described by Cassandra, that there is reason for top level outrage because, as Jennifer claims: "given the numbers, the ability to revoke the citizenship of a few Nazis doesn't justify the cloud over people who I'm willing to assume are currently being or will soon be targeted based on race, nation of origin, and political activism."

Jennifer is willing to "assume" this owing to her obvious animus and sort of risibly flawed hypo:

"Hypo: I become a naturalized citizen, and after five years of residency, I give birth to a child while overseas; the child's father is not a US citizen. If my citizenship is later revoked, does my child also lose citizenship? How do we think Jeff Sessions would answer that question?"

As is usual today, "discourse" quickly moves from an isolated incident to Nazi references and claims that the purely innocent are punished, based on animus and political bias.

Cassandra Robertson

Jennifer Hendricks's question is an important one. Under the current law, yes--the child is likely to lose citizenship as well. DHS's Policy Manual states:

"The spouse or child of a person whose U.S. citizenship is revoked loses his or her U.S. citizenship at the time of revocation in cases where:

•The spouse or child became a U.S. citizen through the naturalization of his or her parent or spouse whose citizenship has been revoked; and

•The parent or spouse’s citizenship was revoked on the ground that his or her naturalization was procured by concealment of a material fact or by willful misrepresentation. [8]

This provision applies regardless of whether the spouse or child is residing in the United States or abroad at the time of the revocation of naturalization. [9]"

8. See INA 340(a) and INA 340(d).

9. See INA 340(d).

Scott Pruitt Edndowed Chair in Enviconmental Justice

Professor Lubet, please provide proof that you are a citizen. Your Birth Certificate is not adequate and lacks foundation. Thanks.

anon

It seems to this commentator that this post should not pass by without a note of praise.

Steve notes the reasons that no new grounds for hysteria are now to be found in the infinitesimally small number of revocation cases. He rightly acknowledges that a person who, for example, was convicted of violent rape and escaped from prison in another country should not be able to lie his way into this country with impunity ("focusing for the most part on people who concealed prior criminal convictions or even outstanding deportation orders."). He seemingly understands the difference between barring the entry of such persons and the incidence of crimes among US citizens, which is irrelevant to this issue. He notes the conduct of the prior administration.

Steve also acknowledges that statute of limitations on revocation should be allowed, and that selective prosecution based on suspect classifications would be wrong.

All in all, I must give credit to Steve in this post. He has resisted a strictly partisan view and presented a balanced view, taking into account various equities and viewpoints.

Jennifer Hendricks

Re: my "risibly flawed hypo," it already happened (thanks to Professor Robertson):

"Appellant further contends that the court erred in refusing to appoint a guardian ad litem to protect the interests of his three-year old son born in Germany after appellant had obtained his certificate of naturalization. There was no error in the court's action. The child was not a party to the suit. His rights, if any, were derived solely from the status of his father. Section 15, 8 U.S.C.A. § 738, provides in effect, that the validity of derivative rights of a wife or minor child shall not be affected by revocation of the certificate of citizenship of the husband or father, except where such revocation is for fraud. In such case where fraud is in issue, as here, we are of the opinion that any derivative rights stemming from the certificate of naturalization involved, must rise or fall solely on the basis of the rights of the husband or parent from whom they stem, and there are no rights to be protected independently by guardian and litem."

U.S. ex rel. Harrington v. Schlotfeldt, 136 F.2d 935, 939–40 (7th Cir. 1943).

anon

Jon pointed out that "The point of my quote from Fedorenko was merely the Court's recognition, in the quoted language, that the statute permits denaturalization so long as the target was ineligible at the time of her citizenship acquisition, without regard to whether she engaged in fraud."

But, as the language of the opinion Jennifer cites makes clear: "the validity of derivative rights of a wife or minor child shall not be affected by revocation of the certificate of citizenship of the husband or father, except where such revocation is for fraud."

The hypo Jennifer propounded never mentioned a revocation based on fraud: it intentionally portrayed completely innocent actors:

"Hypo: I become a naturalized citizen, and after five years of residency, I give birth to a child while overseas; the child's father is not a US citizen. If my citizenship is later revoked, does my child also lose citizenship? How do we think Jeff Sessions would answer that question."

Add the fraud, please, or the answer might be different. Hopelessly flawed, in context, and, moreover, an example that represents a tiny slice of the tiny slice we are discussing, as noted above.

The reference to Sessions is the tell. If Jennifer was thinking of case law, why did she refer to Sessions (as an obvious invitation to partisan hatreds)?

anon

Further, with reference to Jennifer's Sessions reference:

Case law, from the FDR era, as well as the policy manual cited, governs the case (provided a complete hypo, that is).

Why refer to Sessions? Did Sessions sit on the court in 1943 and write the policy manual? Should Sessions disregard the law?

THis is so typical these days: identify a practice or procedure in which the prior administration engaged which is objectionable, and then pretend (either knowingly or negligently) that it is a "new" manifestation of the evil new administration. Ignore the actions of all prior administrations, ignore the law, ignore the facts: misleading, no?

Scott Pruitt Edndowed Chair in Enviconmental Justice

Attention any and all prospective immigrants to the US. Trump, Sessions and the KKK are an aberration, statistical noise. The elevating of Trump to the presidency came down to a mere 80,000 votes. Our new elected leaders in 2020 and beyond will see what is happening in Japan. Because of low birth rates, limited immigration and natural deaths, they will loose 30% of their population. Not favorable for a vibrant economy...

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