Week 21: The DOJ establishes a dedicated denaturalization office
Immigration news, in context.
This is the twenty-first edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we delve into the Trump administration’s new denaturalization task force and the broader history of the federal government stripping naturalized immigrants of their citizenship.
In Under the Radar, we examine a new lawsuit over immigration bonds and a report that CBP is forcing pregnant women in the Remain in Mexico program to skip their hearings.
In Next Destination, we analyze a recent court decision allowing the Trump administration to withhold grant money from sanctuary cities.
The Big Picture
The news: The Department of Justice has announced that it is creating a specialized Denaturalization Division within its Civil Division to specifically focus on bringing cases intended to revoke the citizenship of naturalized U.S. citizens.
What’s happening?
The new effort is merely the newest prong in the federal government’s relatively recent push to ramp up what has until now been a very rare remedy: denaturalizing citizens. Prior efforts had been made to add personnel to agencies like U.S. Citizenship and Immigration Services, which could investigate and refer potential cases for litigation (more on that later). This division will consist of the government attorneys who will actually bring these cases in court.
Only citizens who obtained their status through naturalization, or acquired or derived through a naturalized parent or spouse, can be denaturalized. Citizens who were born in the U.S. or acquired their citizenship through a native-born parent cannot be stripped of citizenship, only give it up voluntarily through a process known as expatriation.
There is a fundamental distinction between the due process necessary to denaturalize versus revoking any other immigration benefit, primarily that a denaturalization cannot occur in immigration court. As we’ve noted before, immigration courts are administrative courts under the control and jurisdiction of the Justice Department, putting respondents (who would be known as “defendants” in other settings) in the awkward position of facing a prosecutor and a judge who both belong to the same branch of government. Everything from nonimmigrant visas to permanent residency can be revoked by an immigration judge, but denaturalization requires the intervention of an Article III federal judge.
This can primarily happen one of two ways: in the civil context or the criminal context. In the criminal context, 18 U.S.C. § 1425 makes it a federal crime to procure citizenship unlawfully, such as by concealing relevant facts during the process. Like all federal criminal statutes, it requires that government prosecutors try a defendant in court and establish beyond a reasonable doubt that they are guilty, and carries standard criminal penalties like fines and jail time. In addition, a conviction under this statute requires the automatic revocation of citizenship, without the need for further civil process. While other federal crimes intersect with immigration, this statute is the only one that by default causes denaturalization upon a finding of guilt.
The other main option is a civil proceeding, governed by 8 U.S.C. §1451, which can be filed by various agencies within the government and is litigated by the Justice Department. These actions have been the crux of the government’s denaturalization campaign and are the focus of the new DOJ division. As DOJ attorneys themselves wrote in a July 2017 edition of the United States Attorneys’ Bulletin, civil denaturalizations tend to be easier and more straightforward than those based on criminal prosecution. Among the reasons is that in criminal proceedings, “the accused has the right to all of the constitutionally guaranteed due process rights—including the right to not testify—that are not available in a civil denaturalization proceeding.”
Basically, civil denaturalizations result from the government establishing via clear and convincing evidence one of two things: that the defendant was statutorily ineligible for naturalization when they received it, or that they employed willful misrepresentation or concealment of material facts in obtaining it.
With regards to eligibility, there are a few principal requirements to becoming a citizen, including having been a lawful permanent resident of good moral character and with a certain amount of continuous residence and physical presence in the United States prior to a naturalization application. (The total statutory period is five years for most permanent residents, and three years for spouses of U.S. citizens). There are several ways that DOJ attorneys can poke holes in the fulfillment of these criteria. For example, they can try to establish that the lawful permanent resident status was itself fraudulent, or based on an earlier fraudulent visa petition, in which case the defendant was never eligible for naturalization in the first place.
The good moral character standard is a complex and expansive area of law, where offenses that indicate moral turpitude can vary even from state to state, but generally someone fails to meet this standard if they’ve committed certain types of crimes, or otherwise have been deemed to lack good moral character by, for example, providing false testimony to the government. A conviction for or admission of a crime can occur after the defendant has become a citizen, provided that the crime itself took place within the statutory period where they were required to maintain good moral character.
The standard for willful misrepresentation and concealment of facts is similar to the eligibility one, in the sense that what the applicant is misrepresenting or concealing is probably something that would have made them ineligible for naturalization. However, this isn’t strictly necessary, as all that’s required is that the applicant misrepresented facts that would have been material to the naturalization process. For example, being absent from the U.S. for a period longer than six months but shorter than a year during the statutory period wouldn’t strictly render an applicant ineligible for naturalization, but having obscured such an absence could be used as evidence of willful concealment. Similarly, in very rare cases, ineligibility could also take place without there having been misrepresentation, say if an applicant received a visa or permanent residency in error through no fault of their own.
The government’s current denaturalization push mostly centers around finding facts to establish prior ineligibility as well as material misrepresentations, orders of removal tendered before an applicant filed for citizenship, and which they did not disclose.
The civil statute also includes the extremely niche provision that a citizen naturalized less than ten years can be denaturalized if they refuse “to testify as a witness in any proceeding before a congressional committee concerning his subversive activities.” If that sounds a little McCarthyist, that’s because it was written in 1952 and is essentially irrelevant today. Participation in certain activities and organizations not viewed as conducive to “the good order and happiness of the United States,” such as terrorist organizations or the Communist Party, within five years of naturalization is also grounds for denaturalization. Lastly, the statute that allows for naturalizations based on wartime active-duty military service — 8 U.S.C. § 1440 — has a provision permitting denaturalization if a service member receives an other than honorable discharge before having served honorably for an aggregate five years.
A denaturalization does not automatically mean that an immigrant is deported. They merely revert back to being a lawful permanent resident, and the government would in most cases have to start a separate process to have their residency revoked in immigration court. However, the circumstances that led to their denaturalization, such as a finding of lack of good moral character, could almost certainly be used to strip them of their green card and have them deported. The time that the person spent as a citizen is legally considered to have been spent as a permanent resident instead. In some cases, such as a prior order of removal being discovered, the government is able to deport them without a new immigration court process. Citizenship acquired or derived by a child of the denaturalized person is also voided.
How we got here
The Trump administration isn’t the first in American history — or even in recent years — that has sought to denaturalize certain U.S. citizens.
Denaturalization was relatively common during the first half of the 20th century, during which people were stripped of their citizenship for engaging in “un-American” behavior, such as being a communist, enlisting in another country’s military or voting in a foreign election, or, in some cases, marrying a foreigner. Naturalized citizens weren’t the only targets: many native-born citizens were also stripped of their citizenship. The government denaturalized more than 1,000 people each year from 1935 to 1941.
Afroyim v. Rusk, a 1967 Supreme Court case, changed that. The case involved Beys Afroyim, a Polish immigrant and naturalized citizen the federal government tried to denaturalize after he voted in an Israeli election. The court ultimately ruled that the federal government can’t revoke an American’s citizenship without their consent. In a subsequent case,Rogers v. Bellei, the court determined that the government couldn’t revoke a native-born American’s citizen without their consent — but it could strip naturalized immigrants of their citizenship if they don’t comply with certain required conditions after becoming U.S. citizens. (We suggest reading this 2018 Vox explainer for a more in-depth look at pre-Afroyim denaturalizations, or this 2017 book by Yale historian Patric Weil.)
Denaturalizations became far less common after the end of the Cold War, and the government’s rationale for trying to denaturalize certain citizens became far less ideological. Fewer than 150 people were denaturalized between 1968 and 2018, according toSmithsonian. And when the government does try to denaturalize U.S. citizens, it targets those it thinks committed fraud in the naturalization process — i.e., those who, according to the government, should have never been eligible for naturalization in the first place.
The Trump administration’s latest denaturalization push stems from a broader effort that began in 2008, after a Customs and Border Protection officer found that more than 200 people who had previously been issued deportation orders had become U.S. citizens anyway. People who have previously been ordered deported aren’t eligible for naturalization, but the 200+ naturalized citizens the agent found had all been ordered deported under one name and been granted citizenship under another. The result was Operation Janus, a multi-agency effort to identify and bring charges against people the government says should have never obtained U.S. citizenship. Under Operation Janus, USCIS and other agencies reviewed 315,000 naturalization cases in search of naturalized citizens who had fraudulently obtained citizenship after being ordered deported under a different identity.
While the review was ongoing, the Obama administration also brought denaturalization cases against people who had committed human rights violations or provided “material support for terrorism” abroad. During Obama’s last few years in office, the government began trying to denaturalize people who had been convicted of certain crimes, including sexually abusing children, before obtaining U.S. citizenship.
The first denaturalization lawsuits resulting from the findings of Operation Janus weren’t brought until September 2017, after Trump had already taken office. But the Trump administration pushed Operation Janus forward. In 2018, then-USCIS director Francis Cissna announced the agency was hiring a team of attorneys to investigate Operation Janus cases and refer potential denaturalization cases to the DOJ. The administration also launched Operation Second Look, a related investigation that would analyze another 700,000 immigration files in the hopes of finding even more potential denaturalization cases.
Although there’s a long history of the government seeking to denaturalize U.S. citizens, the Trump administration has taken ramped up previous efforts. First the administration sought to denaturalize five people who had been convicted of committing sex crimes against children after being naturalized.
The immigrants the government has brought denaturalization suits against aren’t just convicted sex offenders. Baljinder Singh, an Indian immigrant who was naturalized in 2006, was denaturalized in 2019. The government says he failed to disclose a deportation order issued more than 20 years prior — but The Intercept reports Singh hadn’t been aware of the deportation order in the first place. The government is also attempting to denaturalize Norma Borgono, a 64-year-old Peruvian immigrant who applied for citizenship in 2007, because she didn’t disclose her role in a mail fraud scheme in her application. Borgono pleaded guilty to mail fraud in 2011, five years after applying for citizenship but since the naturalization application required her to list any crimes she was involved in and hadn’t been punished for, the government has determined she obtained citizenship through fraud.
This gradual expansion of targets for naturalization explains the panic over the Trump administration’s latest move, even though a small fraction of naturalized citizens will ever have denaturalization charges brought against them.
What’s next?
There are real fears that this new Justice Department division and the Trump administration’s general antipathy towards immigrants of any stripe, even American citizens, will put in jeopardy the citizenship of the nearly 22 million naturalized U.S. citizens, plus all the permanent residents currently in the process.
However, revoking citizenship is perhaps the area of immigration policy where the executive branch has the least regulatory authority and faces the most due process constraints. As we mentioned above, denaturalization is the only immigration-related process that absolutely requires the intervention of a federal court, and both statute and case law make it clear that grants are not to be taken lightly. In the civil context, which is the focus of the new division, the government must present clear, unequivocal, and convincing evidence of ineligibility, fraud, or material concealment.
Further, to initiate such a proceeding, a government agency must file an “affidavit of good cause” with a federal court, laying out the basics of their argument. This means that proceedings cannot occur unless there is already some evidence to back up the government’s claims, and it can’t simply go on fishing expeditions to find evidence after dragging people to court.
That said, the administration and the Senate have been working diligently to fill the federal judiciary with more sympathetic judges. The Ninth Circuit, for example, has recently been “flipped” to a more conservative majority; it would be the appellate level of many possible denaturalization cases filed in California, Washington State, and other immigrant-heavy parts of the West Coast. It’s not unreasonable to think this is one of the reasons the effort is gaining steam now.
Because these denaturalization processes have been so rare in recent history, there is remarkably little case law to go off of. What is certain is that outcomes of the wave of expected denaturalization filings will be hard to predict, and decisions in these cases will set precedent and shape the law in significant ways going forward.
Under the Radar
CBP is making pregnant women in the Remain in Mexico program skip their court dates
Border officers have prevented several pregnant women in the Remain in Mexico program from attending their court dates in the U.S., KPBS’s Max Rivlin-Nadler reports. Although pregnant women aren’t supposed to be subject to the policy, formally known as the Migrant Protection Protocols, KPBS has found several pregnant women who have not only been forced to wait out their asylum cases in Mexico but have also been forbidden from attending their hearings altogether — presumably to prevent them from giving birth to U.S. citizens.
Some of the women in KPBS’s report were given court dates scheduled for the month after they’re supposed to give birth, to ensure their children aren’t born in the U.S. Other women weren’t given new dates at all and reportedly had their cases closed as a result.
More than 61,000 migrants have been sent back to Mexico under the MPP thus far, and data show that migrants forced to wait out their cases in Mexico are less likely to attend their hearings. According to federal data analyzed by TRAC, more than half of migrants on the MPP docket missed their most recent hearing, leading to an absentia decision.
Read more:
Pregnant Asylum-Seekers In Tijuana Being Denied Access To Court Hearings — KPBS
Details on MPP (Remain in Mexico) Deportation Proceedings — TRAC
ICE is being sued for holding a Pennsylvania man on a $10,000 immigration bond
The ACLU of Pennsylvania is suing ICE for holding an Ecuadorian immigrant who has lived in the country for 21 years on a $10,000 bond. ICE arrested the man, Julio Ortega Campoverde, at a probation appointment in August 2018 and he’s been detained ever since, the Morning Call reports. He had been sentenced to probation after pleading guilty to simple assault, according to WFMZ, though the charge was later dismissed and he ended up pleading guilty to other summary offenses.
Ortega’s brush with the criminal justice system led to an immigration arrest. Since Ortega was arrested in the interior of the country and wasn’t arrested for any crimes that would’ve prevented his release, he’s technically eligible for bond. But the judge set Ortega’s bond at $10,000 — an amount that, while exorbitant for most people, especially since immigration bonds need to be paid in full, isn’t particularly unusual. The median bond during the 2018 fiscal year was $7,500, according to federal data analyzed by TRAC, and bond rates vary widely across the country, as do grant rates. The median bond set in Tacoma, Washington, for example, was $15,000. In York County, where Ortega was arrested, it was $6,500. But bonds can be set much higher: The New York City publication Documented spoke with one asylum seeker who was charged a $20,000 bond.
Unlike in criminal courts, judges in federal immigration courts don’t have to consider someone’s ability to pay when setting their bond, a fact noted in the ACLU lawsuit. Ortega’s attorney provided the judge with evidence that his incarceration was a financial strain on his family, including $9,000 in past-due utility bills, proof of Supplemental Security Income benefits for his three disabled children, and copies of his family’s bank statements.
Read more:
ACLU sues to help Allentown man held on ‘impossibly high’ bond in immigration case — The Morning Call
Analysis: Breaking Down the Cost of Bond for Immigrants — Documented
Three-fold Difference in Immigration Bond Amounts by Court Location — TRAC
Next Destination
The Trump administration can now
A panel of the Second Circuit Court of Appeals in New York unanimously ruled that the federal government can withhold federal law enforcement grants under the Edward Byrne Memorial Justice Assistance Grant (JAG) program to localities that refuse to cooperate on immigration enforcement. The grants are designed to assist local law enforcement agencies with purchasing training, equipment, technology, and other expenditures for crime prevention and management, and represent the largest source of criminal justice funding flowing from the federal government to states and localities.
In 2017, then-Attorney General Jeff Sessions declared that the Justice Department would cease disbursing these grants to jurisdictions that had adopted “sanctuary” policies, particularly those who refused to share information about persons of interest to immigration enforcement who were detained by local authorities. New York City and seven states subsequently sued, claiming that it was unlawful to attach these strings to needed federal funding for, among other things, counterterror efforts. A judge of the Southern District of New York had agreed with the plaintiffs and prevented the administration from setting these conditions, a ruling that was overturned by the Second Circuit decision.
The administration’s recent court victory will likely enable it to further retaliate against sanctuary cities. There are many sources of federal funds to states and localities, and it’s not inconceivable that the government could try to find other pressure points to exert. After New York began granting driver’s licenses to undocumented immigrants, DHS recently suspended New Yorkers’ ability to enroll in trusted traveler programs including Global Entry, claiming the state’s refusal to share DMV data with the federal government posed a threat to public safety. The administration is also reportedly planning on deploying specially trained Border Patrol agents to the interior of the country to help ICE carry out arrests in sanctuary cities.
Read more:
Court rules Trump administration can withhold grants from 'sanctuary cities' — NBC News
Week 19: Federal government and New York State in showdown over data-sharing — BORDER/LINES
Border Patrol Will Deploy Elite Tactical Agents to Sanctuary Cities — New York Times