In July of 2018, L. Francis Cisna, director of U.S. Citizenship and Immigration Services (USCIS) announced the creation of a new office and the hiring of lawyers and immigration specialists to investigate past naturalization cases and refer cases to the Department of Justice for denaturalization. The purported purpose of this group is to root out purported fraud in the immigration system. Denaturalization is the legal process by which the U.S. government revokes and nullifies citizenship.
Denaturalization, or revocation of naturalization, unlike other immigration proceedings, is not administrative. Therefore, it must occur in federal court, through either civil or criminal proceedings, and naturalization can only be revoked by a final order in judicial proceedings.
The government bears the burden in such cases. As in all criminal proceedings, the government’s burden in a criminal proceeding to revoke naturalization is to prove the case beyond a reasonable doubt. Criminal proceedings are generally limited to cases in which there was concealment of major criminal activity.
In civil proceedings, however, the government must prove its case by clear, convincing, and unequivocal evidence. There are two grounds for civil revocation of naturalization: (1) illegal procurement of naturalization or (2) concealment of a material fact or willful misrepresentation. Illegal procurement of naturalization means the individual was not eligible for naturalization in the first place. This could mean, for example, that they did not meet the necessary requirements for residence or physical residence at the time of naturalization. This does not require any willful deceit or misrepresentation on the part of the individual. On the other hand, a naturalized U.S. citizen is subject to revocation of naturalization where they willfully misrepresented or concealed a material fact or facts (wither by admission or omission) and procured citizenship as a result of that misrepresentation or concealment. This can apply to misrepresentations or concealment that were made on the naturalization application or on any prior immigration applications, including criminal convictions, past immigration violations, or the use of other names in the past.
Last year, in Maslenjak v. United States, the U.S. Supreme Court unanimously held that in order for a misrepresentation or concealment to justify denaturalization, the misrepresentation or concealment must have been material to the procurement of citizenship. In other words, a false statement is “material” if telling the truth would have prevented the individual from being naturalized. Accordingly, the U.S. government cannot use minor omissions or lies to revoke naturalization. In Maslenjak, a Bosnian woman failed to disclose to the State Department in her refugee application that her husband served in the Bosnian army. She and her children were granted refugee status and her husband later followed her to the United States. Although her husband was later arrested for lying about his service, she was eventually naturalized. The government later tried to revoke her naturalization stating that her concealment had allowed her to procure citizenship.
The consequences for revocation of naturalization are severe and far-reaching. When a naturalized citizen has their naturalization revoked, their status reverts back to the status they had prior to their naturalization, lawful permanent resident status. The individual may then be referred for removal proceedings and deported from the United States. Also, for example, a spouse or child of a person whose citizenship has been revoked may lose his or her U.S. citizenship if the naturalization had been procured through willful misrepresentation or concealment of a material fact.
If you or a family member is facing denaturalization proceedings, please contact our immigration attorneys to set up a consultation.