Denaturalization Section

A release from the Department of Justice:

The Department of Justice today announced the creation of a section dedicated to investigating and litigating revocation of naturalization. The Denaturalization Section will join the existing sections within the Civil Division’s Office of Immigration Litigation—the District Court Section and the Appellate Section. This move underscores the Department’s commitment to bring justice to terrorists, war criminals, sex offenders, and other fraudsters who illegally obtained naturalization.

While the Office of Immigration Litigation already has achieved great success in the denaturalization cases it has brought, winning 95 percent of the time, the growing number of referrals anticipated from law enforcement agencies motivated the creation of a standalone section dedicated to this important work.

“When a terrorist or sex offender becomes a U.S. citizen under false pretenses, it is an affront to our system—and it is especially offensive to those who fall victim to these criminals,” said Assistant Attorney General Jody Hunt. “The Denaturalization Section will further the Department’s efforts to pursue those who unlawfully obtained citizenship status and ensure that they are held accountable for their fraudulent conduct.”

Denaturalization cases require the government to show that a defendant’s naturalization was “illegally procured” or “procured by concealment of a material fact or by willful misrepresentation . . . .” 8 U.S.C. § 1451. Civil denaturalization cases have no statute of limitations, and the Department has successfully denaturalized numerous categories of individuals who have illegally obtained citizenship, including terrorists and other national security threats, war criminals, human rights violators, sex offenders, and other fraudsters.

National Security/Terrorism

• U.S. v. al Dahab, No. 15-cv-5414 (D.D.C.). Successful civil denaturalization of individual convicted of terrorism offenses in Egypt who admitted recruiting for al Qaeda within the United States and running a communications hub in California for the Egyptian Islamic Jihad terrorist organization. The defendant was denaturalized while in Egypt, stripped of his passport, and prevented from returning to the United States.
• U.S. v. Kariye, No. 15-cv-1343 (D. Or.). Successful civil denaturalization of individual who received military training in a jihadist training camp in Afghanistan; coordinated with Osama bin Laden and other known terrorist leaders; and was associated with terrorist organizations including Makhtab Al-Khidamat, a U.S. government-designated terrorist organization and pre-cursor to al Qaeda. The Office of Immigration Litigation coordinated a settlement that facilitated the defendant’s self-deportation to Somaliland despite his presence on No Fly List.
• U.S. v. Hamed, No. 2:18-cv-0424 (W.D. Mo.). Successful civil denaturalization of an individual convicted of conspiring to illegally transfer more than $1 million to Iraq in violation of federal sanctions and of obstructing internal revenue laws with respect to tax-exempt charities. In furtherance of those crimes, the defendant regularly authorized and transferred tax-exempt funds from a non-profit organization’s accounts in the United States to an account in Jordan controlled by a Specially Designated Global Terrorist.

War Crimes & Human Rights Violators
U.S. v. Dzeko, No. 18-cv-759 (D.D.C.). Successful civil denaturalization of an individual who was convicted in Bosnia of executing eight unarmed civilians and POWs during the Balkans conflict. Defendant was denaturalized while incarcerated in a Bosnian prison, and thereby prevented from returning to the United States upon his release.
U.S. v. Yetisen, No. 18-cv-570 (D. Or.). Successful civil denaturalization of an individual who pled guilty in Bosnia of executing six unarmed civilians and POWs during the Balkans conflict.

Sex Offenders

• U.S. v. Omopariola (N.D. Tex.). Successful civil denaturalization of an individual engaged in sexual contact with a 7-year-old family member.
• U.S. v. Lopez, No. 18-cv-00527 (D. Md.). Successful civil denaturalization of an individual who sexually abused a minor victim for multiple years.
• U.S. v. Arizmendi, No. 4:15-cv-454 (S.D. Tex.). Successful civil denaturalization of an individual convicted of multiple sex offenses, including as to students. The defendant was denaturalized while incarcerated in a Mexican prison related to a sex offense, and thereby prevented from returning to the United States upon his release.

Fraudsters & Other Criminals

• U.S. v. Mondino, No. 18-cv-21840 (S.D. Fla.). Successful civil denaturalization of an individual convicted of conspiring to defraud the U.S. Export-Import Bank of more than $24 million, resulting in more than $12 million in unrecovered losses. Because of the denaturalization proceedings, the defendant self-deported.
• U.S. v. Warsame cases, Nos. 17-cv-5023, -5024, -5025, -5027 (D. Minn.). Successful civil denaturalizations of four individuals who fraudulently claimed to be a family to gain admission to the United States through the Diversity Immigrant Visa Program.

Denaturalization, 2018

Brittny Mejia at LAT:

A United States Citizenship and Immigration Services team in Los Angeles has been reviewing more than 2,500 naturalization files for possible denaturalization, focusing on identity fraud and willful misrepresentation. More than 100 cases have been referred to the Department of Justice for possible action.

“We’re receiving cases where [Immigration and Customs Enforcement] believes there is fraud, where our systems have identified that individuals used more than one identity, sometimes more than two or three identities,” said Dan Renaud, the associate director for field operations at the citizenship agency. “Those are the cases we’re pursuing.”

...

From 2009 to 2016, an average of 16 civil denaturalization cases were filed each year, Department of Justice data show. Last year, more than 25 cases were filed. Through mid-July of this year, the Justice Department has filed 20 more.

Separately, ICE has a pending budget request for $207.6 million to hire 300 agents to help root out citizenship fraud, as well as to “complement work site enforcement, visa overstay investigations, forensic document examination, outreach programs and other activities,” according to the agency.

The stage for increasing cases of denaturalization was set during the waning days of the Obama administration.

In September 2016, a report released by the inspector general for the Department of Homeland Security showed that 315,000 old fingerprint records for immigrants who either had criminal convictions or deportation orders against them had not been uploaded into a database used to check identities.

It turned out that because of incomplete fingerprint records, citizenship had been granted to at least 858 people who had been ordered deported or removed under another identity. USCIS began looking into cases.

John Sandweg, who headed U.S. Immigration and Customs Enforcement under Obama, said that when it came to denaturalization, officers considered it on a case-by-case basis, “looking at the seriousness of the offense and then deciding if it made sense to dedicate the resources.”

“It was looked at more in that context — let’s look for serious felons who may have duped the system because we didn’t digitize fingerprints yet. Not so much … let’s just find people where there’s eligibilities to denaturalize because we want to try to reduce the ranks of naturalized U.S. citizens.”

Revoking Citizenship

Adam Liptak reports at The New York Times:

The justices unanimously rejected the government’s position that it could revoke the citizenship of Americans who made even trivial misstatements in their naturalization proceedings.

During arguments in April, several justices seemed indignant and incredulous at the government’s hard-line approach in the case, Maslenjak v. United States, No. 16-309.
They asked about a form that people seeking American citizenship must complete. It requires applicants to say, for instance, whether they had ever committed a criminal offense, however minor, even if there was no arrest. A government lawyer, in response to questioning, said that failing to disclose a speeding violation could be enough to revoke citizenship even years later.

Writing for the majority, Justice Elena Kagan said that the law required a tighter connection between the lie and the procurement of citizenship.

“We hold that the government must establish that an illegal act by the defendant played some role in her acquisition of citizenship,” she wrote. “When the illegal act is a false statement, that means demonstrating that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts warranting that result.”

Denaturalization, Citizenship, and Speeding

A number of posts have discussed naturalization and denaturalization.  Edith Roberts at SCOTUSblog:

Yesterday the court heard oral argument in Maslenjak v. United States, which asks whether a naturalized U.S. citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement. Amy Howe analyzes the argument for this blog. In The New York Times, Adam Liptak reports that several of the “justices seemed taken aback” by the idea “that the government may revoke the citizenship of Americans who made even trivial misstatements in their naturalization proceedings.” Additional coverage of the argument comes from Jess Bravin in The Wall Street Journal, who reports that “[s]kepticism over the Trump administration’s broad view of government power didn’t translate into sympathy for Divna Maslenjak, the Bosnian Serb immigrant who filed the appeal.”

From the transcript of oral argument: 

CHIEF JUSTICE ROBERTS: But, scrupulously, I -- I looked at -- on the naturalization form, there is a question. It's Number 22. "Have you ever" -- and they've got "ever" in bold point --
MR. PARKER: Uh-huh.
CHIEF JUSTICE ROBERTS: -- "committed,
assisted in committing, or attempted to commit a crime or offense for which you were not arrested?" Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone. (Laughter.)
MR. PARKER: I'm sorry to hear that.
CHIEF JUSTICE ROBERTS: I was -- I was not arrested. Now, you say that if I answer that question no, 20 years after I was naturalized as a citizen, you can knock on my door and say, guess what, you're not an American citizen after all.
MR. PARKER: Well --
CHIEF JUSTICE ROBERTS: Is that right?
MR. PARKER: If -- well, I would say two things. First, that is how the government would interpret that, that it would require you to disclose those sorts of offenses.
CHIEF JUSTICE ROBERTS: Oh, come on. You're saying that on this form, you expect everyone to list every time in which they drove over the speed limit --
MR. PARKER: No.
CHIEF JUSTICE ROBERTS: -- except when they were arrested.
MR. PARKER: Well, what I think the -- what I think that particular question demonstrates is -- and I will readily acknowledge, number one, that is a very broad question, and, number two, and I think that there is a great deal of ambiguity in what exactly is meant by "crime and offense." And --
CHIEF JUSTICE ROBERTS: Well, but just -- it's worse. If you look in Black's --
(Laughter.)
CHIEF JUSTICE ROBERTS: In Black's Law Dictionary, I looked up what's an offense? And this is what it says: It says it's a violation of the law, a crime, often a minor one.
MR. PARKER: Uh-huh.
CHIEF JUSTICE ROBERTS: So you really are looking for the listing of every time somebody drove over the speed limit.

Renunciations

AP reports on the increase in the number of people renouncing US citizenship:

The jump in renunciations reflects evolving views about national identity, said Nancy L. Green, an American professor at the L'Ecole des Hautes Etudes en Sciences Sociales in Paris. When the U.S. got its start, citizenship was defined by "perpetual allegiance" — the British notion of nationality as a birthright that could never be changed.

American colonists rejected that to justify becoming citizens of a newly independent country. But changeable citizenship wasn't widely embraced until the mass immigration of the late 1800s, says Green, a historian of migration and expatriation.

Even then, U.S. artists and writers who moved to Europe in the 1920s were criticized, suspected of trying to avoid taxes. Until the 1960s, U.S. citizenship remained a privilege the government could take away on certain grounds. It's only since then that U.S. citizenship has come to be viewed as belonging to an individual, who could keep — or surrender it — by choice.

Terror and Denaturalization

Our chapter on citizenship discusses denaturalization, the process by which the government can strip citizenship from people who obtained it through fraud or illegality.  NBC 5 in Chicago reports:

A suburban Evergreen Park woman faces possible deportation and prison time after federal officials say she lied about her terrorist past.

Rasmieh Odeh, 66, works as a social worker for the Arab American Action Network where she helps people become citizens and helps to empower women through her work with domestic-violence groups.

"All she has done is dedicate her life to racial and social justice, that's the Rasmieh Odeh I know, and that's the Rasmieh Odeh who's under attack her," Hatem Abuddayyeh said outside a Chicago federal courtroom where Odeh appeared Tuesday.

But federal investigators say in 1969 she was convicted in Israel of participating in the terrorist bombings of a supermarket and the British consulate. Only one bomb — one of two placed at the supermarket — exploded, killing the two people and wounding several others. Israeli authorities have said the attacks were planned by the Popular Front for the Liberation of Palestine.

An Israeli military court sentenced Odeh to life in prison in 1970, but she was released 10 years later in a prisoner exchange with the Popular Front. Israel released 76 prisoners in exchange for an Israeli soldier captured in Lebanon, according to Odeh's indictment.

But officials say she neglected to tell U.S. officials about her past when she moved to this country from Jordan and eventually became a citizen.

Odeh faces up to 10 years in federal prison if convicted, deportation back to Jordan and the removal of her U.S. citizenship.

Citizenship and the Boston Bombing

Our chapter on citizenship discusses denaturalization, the process by which naturalized citizens may lose their status under certain limited circumstances.  At Slate, Patrick Weil writes:

If the Boston Marathon bombing had taken place 70 to 90 years ago, alleged bomber Dzhokhar Tsarnaev would have been stripped of his American citizenship in addition to being imprisoned or executed for his crimes. In the first decades of the 20th century, naturalized citizens like Tsarnaev were routinely deprived of their citizenship for committing radical, "un-American" activities that took place after their naturalization. Citizenship in those years was understood as a benefit offered by a country in exchange for its citizens’ obedience to the laws of the land, always with the threat that certain actions could lead to its loss. It’s an approach the Supreme Court later rejected in the name of equal rights.

...
The Supreme Court reinforced the rights of naturalized citizens in 1967. Writing for the majority in the case of Afroyim v. Rusk, Justice Hugo Black said the 14th Amendment guaranteed protection for “every citizen of this Nation against a congressional forcible destruction of his citizenship.” When the 14th Amendment states that, “All persons born or naturalized in the United States … are citizens of the United States,” it makes citizenship an absolute right. The same is not true of “life, liberty, or property”; citizens can be deprived of each if they are afforded “due process of law.”

Today, a naturalized American can be stripped of citizenship only if facts emerge that would have initially warranted denial of his application—never for actions committed after the naturalization. This frames the fate of Dzhokhar Tsarnaev. He will probably be deprived of his liberty and, perhaps, his life. Even if condemned to death, however, Tsarnaev will face his sentence as an American citizen. Each citizen—even the most troubling—preserves his status. For the court, safeguarding the rights of each naturalized American ensures the dignity and rights of all.

Citizenship in the News

At The Wall Street Journal, Laura Sanders discusses taxation and the renunciation of citizenship:

See a striking interactive graph on the sharp rise in the number of Americans renouncing their citizenship.  And another, static, graph:

Via USA Today, The Tennesseean reports on naturalization:

When typical native-born Americans think about immigrants, they think about Latin American farm workers or nannies, said Flavia Jimenez, director of integration policy for the nonprofit National Immigration Forum. They also think naturalization is a simple process.

"That plays into our ineffective policy on immigration," she said. "It doesn't paint a clear picture of who we are as a nation. There are a lot of myths about who the immigrants are, the face of the immigrant community."

The largest number of naturalized citizens in Tennessee came from India in 2010, the most recent year for detailed U.S. Department of Homeland Security data. Mexico was second, and Egypt third. Most were in professional or management careers.

 

And at The New York Times, Professor Jacqueline Stevens questions the whole idea of birthright citizenship:

Why does the practice endure? One could point to how birthright ensures loyalty to those born on the same soil and preserves one’s ties to one’s ancestors. But as Aristotle, explaining how the first families proved themselves to be citizens, said: “As a mortar is made by a mortar-maker, so a citizen is made by a citizen-maker.” In other words, citizens are not sprung from the earth or the womb; nationality is not genetic.

Citizens are created by politicians, the citizen-makers. And they are created because the nation, and hence birthright citizenship, exists to alleviate anxieties about death. Belonging to the nation or any other community by birth, including one’s family, sustains fantasies of immortality, as these groups persist after one’s own life has ended. Birthright citizenship, and indeed, the entire body of laws around families and inheritance, embody societies’ collective flight from death.

Libertarians and economists have long questioned the usefulness of national boundaries. In 1984, The Wall Street Journal’s editorial page proposed adding a constitutional amendment: “There shall be open borders.”

For some on the left, the abolition of birthright citizenship evokes the nightmarish prospect of a labor glut in wealthy countries, the global lowering of wages, and capitalism run amok. But greed and corruption have challenged good governance in all ages, not just in the modern capitalist era. Moreover, too many on the left overlook how inheritance laws perpetuate inequality, as well as the disparity in wealth among countries because of restrictions on migration.

Karl Marx predicted that the demise of feudalism would mean that wealth would be created anew in each generation. Instead, intergenerational transmission of money and property remains the main culprit for inequality in wealth. Abolishing inheritance would help end inequality within countries; abolishing birthright citizenship would help end inequality among countries, by letting people move for greater opportunity.

Taking Away Citizenship

Our chapter on citizenship discusses circumstances under which the government may strip an American of citizenship. There is little doubt that it can do so with a naturalized citizen who committed fraud in the process of naturalization. According to legal scholar Peter Schuck, the Times Square bombing suggests other circumstances.

Under a 1940 statute that is still in force, the government can de-nationalize citizens who serve in a foreign military; vote in a foreign election; swear allegiance to, hold office, or naturalize in a foreign state; expressly renounce their citizenship before certain U.S. officials; or conspire to make war against the nation.

But a 1967 Supreme Court decision, Afroyim v. Rusk, held that Congress cannot revoke citizenship without the citizen's consent. Thus, in the case of the Times Square bomber, the government would have to prove that when he committed any of the actions listed in the statute, he intended to relinquish his citizenship.

In a 1980 case, Vance v. Terrazas, the Court reaffirmed this "intent to relinquish" requirement, but allowed the government to prove it by a mere "preponderance of the evidence." Afroyim and Terrazas, which were both 5-4 decisions, accepted that a jury might infer intent to relinquish citizenship based on conduct—that is, even if the individual didn't utter the magic words "I intend to renounce my citizenship"—so long as he had fair opportunity to show otherwise.

The question, then, is which acts might prove the specific intent demanded by these two rulings. In Shahzad's case, if the government can show that he placed a bomb in Times Square at the behest of a terrorist group seeking to kill people simply because they are Americans, I believe that it should easily suffice. Unlike the citizen's act in Afroyim—voting in an Israeli election—the Times Square plot precludes any notion of allegiance.