By Attorneys Nancy E. Miller and Michael Bhotiwihok
Under current immigration law, the United States government may not revoke the citizenship of a person born in the United States. However, for individuals who naturalized, there is no guarantee that United States citizenship will last forever.
While denaturalization in the United States has been rare in the past few decades, the process has recently experienced a rebirth. Denaturalization is process in which a United States citizen is stripped of his or her citizenship. As a result, the former United States citizen’s immigration status reverts to that of a lawful permanent resident and is subject to removal from the United States.
The potential loss of United States citizenship can greatly affect one’s ability to live and work in the United States. It can be equally as problematic for the individual’s family members who received legal immigration status through him or her, because the family members will lose their status too.
A person may be subject to revocation of United States citizenship if naturalization (or the underlying green card) is procured illegally or through concealment of material fact or willful misrepresentation. Other grounds for denaturalization can include membership or affiliation of certain organizations (Communist party, totalitarian party, or terrorist organization) or dishonorable discharge from the military within five years of naturalization.
There are two primary ways that an individual may be stripped of his or her United States citizenship. The first, criminal denaturalization, occurs through a criminal conviction under 18 U.S.C. Section 1425. A conviction under this section of the law automatically triggers denaturalization. Normally in criminal denaturalization cases, an individual conceals that her or she was convicted of a previous crime thereby withholding evidence of a material facts that would have resulted in the denial of naturalization. Other similar cases have involved the naturalization applicant withholding the fact of membership in a designated foreign terrorist organization or transnational criminal organization like a gang.
With civil denaturalization under INA Section 340, the naturalized United States citizens may be subject to denaturalization proceedings by the United States Attorney’s Office in federal court if one obtains United States citizenship illegally, through the concealment of a material fact or by willful misrepresentation. It is important to note that the Department of Homeland Security (“DHS”) cannot revoke citizenship administratively, but can recommend denaturalization proceedings to other parties in the Department of Justice for action.
Last June 20017 in Maslenjak v. United States, the Supreme Court of the United States limited the United States Government’s power on denaturalization. At issue was whether the government could revoke naturalization based on immaterial false statements made during the naturalization process. In Maslenjak, Divna Maslenjuk gave false information to United States consular officials to gain entry to the United States. The Supreme Court held that false statement made during the naturalization process had to be relevant to gaining citizenship in order to justify revoking it later. The Supreme Court remanded the case back to the United State Court of Appeals for the Sixth Circuit for the jury to be instructed to decide whether the false statement altered the naturalization process such that it influenced the grant of United State citizenship.
In 2017 DHS began Operation Janus after it identified over 800 individuals who obtained United States citizenship under aliases after they had been deported or removed from the country.
On January 5, 2018, a federal judge in New Jersey granted United States Government’s request to denaturalize Balijinder Singh, thus marking the first successful denaturalization case since Operation Janus’ start. The federal judge relied on the United States Supreme Court’s enumerated four requirements for denaturalization. The United State Government must show that the naturalized citizen misrepresented or concealed some facts, whether the misrepresentation or concealment was willful, whether the fact was material, and whether the naturalized citizen procured citizenship as a result of the misrepresentation or concealment. In this case, Mr. Singh deliberately willfully mispresented information on his naturalization application. Mr. Singh’s immigration status was revoked and reverted to a lawful permanent resident. He is now subject to removal proceedings at the discretion of DHS.
Denaturalization should not be confused with the cancellation of a naturalization certificate. In cancelling the certificate, DHS is asserting that the person never properly completed the procedural requirements for naturalization and, thus, never became a citizen. Therefore, denaturalization is unnecessary and the person can be placed directly into removal proceedings.
Denaturalization is extremely serious to the naturalized United States citizen and to any family members who obtained United States citizenship through them. Any naturalized United States citizen who may be subject to denaturalization proceedings must contact an experienced immigration attorney for an extensive analysis of the facts of his or her case.
