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InAlienable
Daily Dispatch
February 28, 2020
The Justice Department has launched a new office to review denaturalization cases. So yes, even if you have become a citizen, the Justice Department may review your case and seek to strip that citizenship from you if you did anything wrong. Sounds scary right? It’s supposed to sound scary. But the reality is very few people have anything to fear from this process - at least for now.
The first thing to remember is that the United States has reserved the right to denaturalize citizens for a long time. Typically this will be because someone lied about when they arrived or about a marriage, or other qualifying information. That said, it is extremely rare.
The current initiative has roots in the Obama administration. In 2008 Customs and Border Protection reported on 206 individuals who had received deportation orders but had obtained citizenship using a false identity. The people in question had come from “countries of interest” related to counter-terrorism efforts. This discovery led to the creation of Operation Janus in 2009 to begin coordinating the Department of Homeland Security’s review of records.
In 2016 the Office of the Inspector General reported on the project. The OIG had found that USCIS had granted U.S. citizenship to 1,029 people who had been ordered deported under a different identity by 2014. They also found that most of these individuals (858) were able to get away with this because of a backlog in digitizing fingerprint records. In total, the OIG found that 148,000 fingerprint records for people ordered deported had not been digitized. Obviously, very few of these people had tried to become citizens anyway. Launching a comprehensive review would be costly.
By 2016 fingerprints records had been digitized, and the OIG was expressing concern that very few cases had been investigated. From the report:
Under the INA, a Federal court may revoke naturalization (denaturalize) through a civil or criminal proceeding if the citizenship was obtained through fraud or misrepresentation. However, few of these individuals have been investigated and subsequently denaturalized. As it identified these 1,029 individuals, OPS referred the cases to ICE for investigation. As of March 2015, ICE had closed 90 investigations of these individuals and had 32 open investigations. The Offices of the United States Attorneys (USAO) accepted 2 cases for criminal prosecution, which could lead to denaturalization; the USAO declined 26 cases. ICE transferred two additional cases with fingerprint records linked to terrorism to the FBI’s Joint Terrorism Task Force. ICE was scrutinizing another two cases for civil denaturalization.
In the end the Obama administration ended up denaturalizing an average of 16 people a year, just over twice as many as the annual average from 1991 to 2008 (7). Move forward to the Trump administration.
In July of 2018, Trump announced that the Department of Homeland Security would be launching a Denaturalization Taskforce to continue and expand a review of records related to these cases. On the surface, this would mean a few thousand more cases reviewed, with a subset transferred to the Justice Department for further review and possible denaturalization - only a Federal Court can strip citizenship.
So, this week’s announcement that the Justice Department was creating a new office to review these cases is simply the continuation of a process that began 12 years ago: Reviewing cases referred by DHS for possible court action.
The Trump administration has certanly overseen an expansion in the number of denaturalization cases, but it is still a limited effort. Since 2008 the Justice Department has overseen prosecution of 228 cases for denaturalization; 94 of those were filed in the last three years (though investigations for many likely started before Trump was in office).
To keep the scale somewhat in perspective, from the creation of the US Citizenship and Immigration Services in 2003 to the original report of 1,029 possibly fraudulent identity claims in 2014, USCIS had granted citizenship to 7,799,636 people. So, the original pool of Operation Janus files constituted 0.00013 of all naturalizations.
It is possible, of course, that the Trump will try to use this process to strip people of citizenship for simply making a mistake on their citizenship application, as opposed to someone having lied about their identity to cover up involvement human rights violations, or previous deportation order. But for the time being the Supreme Court has blocked denaturalization cases that sought an overly broad interpretation of “material lie.” In Maslenjak v. United States (2017):
The justices, both at oral argument and in the decision (written by Justice Elena Kagan), were extremely concerned that the government was trying to over-broadly define what counted as a material lie.
Kagan spelled out that the heart of denaturalization ought to be that it’s rescinding citizenship that never should have been granted to begin with — that it’s simply rectifying a mistake caused by a fraud. Otherwise, she points out, the standards for denaturalization will get decoupled from those of naturalization — leaving a lot of people in a very vulnerable position.
When it comes to lying, this means that not all lies open someone up to denaturalization, because not all lies disqualify them from naturalization.
For now, it seems that “huge” announcements are the point. The “new” Justice Department office is not really all that new in terms of practice, and the scope of activity, though increased from recent years, is still small. Such processes can certainly be abused, and under this administration that risk is greater than usual. So, for those of us concerned about these efforts we must remain vigilant, but we should also not contribute to a fear of mass “denaturalizations” by exaggerating the scope of this effort. Otherwise we are doing Trump’s work for him.