Want to Denaturalize A U.S. Citizen? Here’s How
October 5, 2016 (Fault Lines) — As of late, much has been shrieked about the loss of American citizenship as a form of punishment for some offenses deemed not-criminal by the U.S. Supreme Court. But can it be done? Well, the answer is neither easy nor simple, and as usual it depends on circumstances. Prefer easy answers to complex questions of law and policy? Head over to reddit your nearest law prof, where tummy rubs and gibberish abound.
First, it’s important to clarify that this is about naturalized citizens and not legal permanent residents (a.k.a. “LPRs”). There is a universe of a difference between the two. It can sometimes be difficult to tell between the two. We may sometimes think that if somebody has documentation such as the i864, they are automatically a U.S citizen, which isn’t necessarily the case. When someone is a sitting duck legal permanent resident, she is subject to deportation proceedings should she be convicted* of a very long list of crimes, state or federal. That is not the case with citizens.
For a citizen to lose her papers, the government must move to revoke her citizenship, or “denaturalize” her, and the process takes place in a U.S. District Court. This is why it’s foolish for LPRs to not apply to for citizenship as soon as they’re eligible, as they’re depriving themselves of the ultimate shield from a sentence of permanent banishment from the country. Yes, people may think “that only happens to deplorables criminals,” or the equally infantile, “I want to remain loyal to my country of origin.” But life is fragile, and stuff happens all the time to the best “worst” of us (“But abogado, he grabbed my girlfriend’s ass, I just had to clock him”)
There are two avenues open to the government in federal court for these cases: civil proceedings or a criminal conviction for “unlawful procurement of citizenship or naturalization.” A conviction of the latter triggers an automatic revocation of one’s certificate of citizenship. Usually, though, the government pursues the civil route. The agency formerly known as Immigration and Nationality Service, or INS, is barred from using administrative proceedings to reach the same end. In other words, the government must take you to federal court and be held to its proof.
As with a lawsuit, the standard the government must meet in denaturalization proceedings is “clear, convincing, and unequivocal evidence,” which does not leave the issue in doubt. There are three grounds for revocation of naturalization. The first is when naturalization was procured illegally, in that someone was not eligible for naturalization in the first place (e.g., person was not legally an LPR, didn’t show good moral character).
The second grounds make up the majority of revocation cases: concealment of material fact or willful misrepresentation during naturalization proceedings. Here’s where the revocation rubber hits the criminal law road.
Consider a defendant who pleads out to one count of conspiring to commit health care fraud, and let’s say that the “factual proffer” agreement indicates that the conspiracy ran between October 2009 and January 2012. Question #22 of USCIS’s naturalization application asks “Have you EVER committed, assisted in committing, or attempted to commit, a crime or offense for which you were NOT arrested? (emphasis and CAPS done by USCIS). If he answers no, and he applied on November of 2011, he may be exposed to denaturalization proceedings even though he pled out after he became a citizen. This is immigration’s version of ”relevant conduct.” He may also be subject to (however unlikely) prosecution for perjury, since the citizenship application is executed under oath.
Another governmental weapon under this second option is the “membership or affiliation” with the Communist Party, or any other totalitarian or terrorist organization. It is government policy that whomever was involved with, let’s say, the Cuban Communist party or any of its offshoots within five years of becoming a U.S. citizen, is subject to revocation of his citizenship because he cannot satisfy the naturalization requirement of “having an attachment to the Constitution and of being well-disposed to the good order and happiness of the United States.” The same applies to those with any ties to Nazi Germany, but for obvious reasons that option has become outdated.
The third route is reserved for those who received an “other than dishonorable discharge before 5 years of honorable service after naturalization.” Noticed how flag burning and “not liking” the election’s results are not listed as grounds or revocation of citizenship? It’s because they are not. If anything, naturalization applicants swear an oath to the United States, not to its President.
Want to burn a flag? It’s not commendable, but it’s nobody’s legal or immigration business but yours if you’re a citizen. Taking the hypothetical to the extreme, a citizen can choose set fire to an American flag factory, get black out drunk in jubilation, and then T-bone a school bus while fleeing the scene. Guess what? There are no grounds to denaturalize him or making him “lose his citizenship.” He may end up rotting in prison for a while, but that prison will be in America.
*Within the immigration context, a “conviction” means any kind of plea or verdict that is not “not guilty.” A “withhold of adjudication” during arraignment has the same effect of a guilty verdict following a contentious 3 month trial.