"(Un)Civil Denaturalization" in Print in NYU Law Review

Why the existing system violates due process.

|The Volokh Conspiracy |

In our latest coauthored article "(Un)Civil Denaturalization", now out in the NYU Law Review, Cassandra Robertson and I discuss the problems with our current denaturalization procedures. Here is the abstract:

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.

Denaturalization is no longer so rare. Naturalized citizens' sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends continue, it will continue to increase dramatically. This growth began under the Obama administration, which used improved digital tools to identify potential cases of naturalization fraud from years and decades ago. The Trump administration, however, is taking denaturalization to new levels as part of its overall immigration crackdown. It has announced plans for a denaturalization task force. And it is pursuing denaturalization as a civil-litigation remedy and not just a criminal sanction—a choice that prosecutors find advantageous because civil proceedings come with a lower burden of proof, no guarantee of counsel to the defendant, and no statute of limitations. In fact, the first successful denaturalization under this program was decided on summary judgment in favor of the government in 2018. The defendant was accused of having improperly filed an asylum claim twenty-five years ago, but he was never personally served with process and he never made an appearance in the case, either on his own or through counsel. Even today, it is not clear that he knows he has lost his citizenship.

The legal status of denaturalization is murky, in part because the Supreme Court has long struggled to articulate a consistent view of citizenship and its prerogatives. Nonetheless, the Court has set a number of significant limits on the government's attempts to remove citizenship at will—limits that are inconsistent with the adminis- tration's current litigation policy. This Article argues that stripping Americans of citizenship through the route of civil litigation not only violates substantive and procedural due process, but also infringes on the rights guaranteed by the Citizenship Clause of the Fourteenth Amendment. Finally, (un)civil denaturalization undermines the constitutional safeguards of democracy.

 

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  1. It’s funny… I happen to know a fair number of naturalized citizens, (My wife is one.) and this isn’t even a topic of conversation among them. Apparently they’re so fearful they’ve buried the topic deep in their subconscious.

    Note, I’m not claiming the procedural protections are adequate, far from it. But this “culture of fear”? I see no evidence of it.

    None at all. Probably because most naturalized citizens didn’t obtain their citizenship under false pretenses, and know it.

    1. By any chance, is your circle of naturalized friends predominantly white folks?

      The fellow in charge of deciding who gets to stay in the country has expressed a desire to allow white folks in, but not the scary brown one, even though some of them, he guesses, might be fine people. They’re not sending their best, you know, just the rapists and murderers.

      1. Look, you’re not going to persuade very many people by repeating a libel like that.

        As a matter of fact, most of the naturalized citizens I know are from the Philippines. While some Filipinos are light skinned, most of them are about as “swarthy” as Mexicans, maybe more so.

        1. In other words, they are not Hispanic.

          1. Yes, if you look closely, you can see that they have epicanthic folds. But they’re just as “brown” as Mexicans, and about as scary for that matter.

            Just much less commonly illegal immigrants, since they can’t walk here.

            1. “Just much less commonly illegal immigrants, since they can’t walk here.”

              It’s a shame they never invented boats.

          2. Filipinos can be Hispanic. It’s part of the legacy of Spanish colonialism.

        2. “Look, you’re not going to persuade very many people by repeating a libel like that.”

          By libel you mean accurately quoting him?

          1. Well, you might have accurately quoted the libel, at least.

            “”When Mexico sends its people, they’re not sending their best. They’re sending people that have a lot of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”

            Where do you get “just” rapists and murderer from that?

            1. Look, you’re not going to persuade very many people by repeating a libel like that.

              1. The truth is an absolute defense against libel.

                1. Which is why you aren’t going to persuade very many people. Like Mr. Trump, you have no notion of “truth”.

            2. OK, Brett, mostly rapists and murderers.

              And “some,” as in “some, I assume, are good people,” clearly suggests, what ever BS argument you are preparing, that the good people are a distinct minority.

              So yeah, the criticism of Trump is fair, not to mention accurate. We have a bigot, among other things, in the White House, avidly supported by many others.

              1. So yeah, the criticism of Trump is fair, not to mention accurate. We have a bigot, among other things, in the White House, avidly supported by many others.

                No, the criticism of OUR HEROIC AND NOBLE PRESIDENT DONALD J. TRUMP is unfair and inaccurate. We threw the bigot out in January 2017. It’s funny how OUR HEROIC AND NOBLE PRESIDENT DONALD J. TRUMP was getting awards from the NAACP and other racial organizations for racial harmony, up until suddenly something happened in 2015…

                1. This is what you get when you decriminalize the demon-weed.

      2. I’m a brown skinned naturalized citizen as are many members of my family. And we have no fear of de-naturalization since we did not obtain our citizenship through fraud.

        1. And there are never false positives; they system is perfect.

          Are you actually making the time-worn argument of ‘if you’re not guilty, then what do you have to hide?’

          I’m no libertarian, but that’s pretty bootlickery even for my taste.

          1. “bootlickery” coming from you, lol.

            Of course, those accused of fraud during naturalization are presumed innocent. But I don’t see why it is required that they have to be criminally prosecuted, and indeed those under the microscope may well prefer to not risk prison time. Naturalization is a civil process, not a criminal one, so revoking naturalization should also be a civil process, provided that the protections are sufficient.

            1. How you fail to properly value a risk to a citizenship you had to work to earn I do not understand.

  2. Note, I’m not claiming the procedural protections are adequate, far from it. But this “culture of fear”? I see no evidence of it.

    None at all. Probably because most naturalized citizens didn’t obtain their citizenship under false pretenses, and know it.

    Is it possible Brett, that some naturalized citizens have more reason to fear the intentions of the Trump Administration than others?

    You yourself admit the procedural protections are inadequate. Surely it’s reasonable for members of a group disliked by Trump, and the so-called “real Americans” who worship him, might be more than a little nervous about those inadequate procedures.

    1. “Is it possible Brett, that some naturalized citizens have more reason to fear the intentions of the Trump Administration than others? ”

      Oh, absolutely: The ones who obtained their citizenship under false pretenses, obviously.

      Look, about 500 people a year get hit with lightning every year in the US. Does this fundamentally shake your sense of security? Has it created a culture of fear? That’s the scale of things we’re discussing here.

      I think something as serious as deprivation of citizenship shouldn’t be a civil process, it should be criminal, with all the protections appropriate to that. That doesn’t mean we’re living in the middle of some kind of pogrom.

      1. You’re being disingenuous, Brett.

        You’ve admitted that the protections are inadequate, so there plainly is reason why there might be some nervousness even among those whose naturalization was perfectly legitimate. This is especially so when the Trump Administration is seeking to accomplish denaturalization through civil proceedings.

        Add serious anti-Hispanic bigotry, and not much taste on the part of the administration for being legally scrupulous on matters involving immigration, and, while “culture of fear” may be an exaggeration today, some anxiety is justified, and it might not be an exaggeration tomorrow.

        It’s not a pogrom, but not because those in charge would be horrified by the thought. I mean, we have people threatened with long jail sentences for leaving food and water out in the desert for migrants.

        1. No, I’m not being disingenuous, I’m reporting the evidence of my own eyes. You want to say the evidence of my eyes isn’t representative, fine: Let me see some EVIDENCE that it isn’t. Polling, maybe.

          Not just a naked assertion.

          The reported rate at which this is happening is low enough that virtually nobody in the immigrant community would know somebody who it happened to. I don’t think there’s a climate of fear, I think there’s an effort to manufacture one.

          Prove me wrong.

          Yes, I think the protections are inadequate, a LOT of protections in this country are inadequate. That doesn’t mean that they’re being abused. It just means they could be.

          1. “No, I’m not being disingenuous”

            Yes, you are, but you’ll never admit it.

          2. You want to say the evidence of my eyes isn’t representative, fine: Let me see some EVIDENCE that it isn’t.

            You know Filpinos who, I suppose, mostly live around you, along with some relatives further away.

            How hard is it to understand that that is not a representative sample of immigrants? It’s 100%, OK, maybe 90% Filipino. What percentage of all immigrants are Filipino?

            1. It might not be a representative sample, but I don’t see anybody opposing it with a more representative sample. No polling data.

              Just, as I said, naked assertion.

              It’s one thing to complain my sample isn’t representative if it disagrees with another sample. It’s quite another to complain it isn’t representative when it disagrees with data free speculation.

              1. Brett, your sample is not representative. Period. It’s not randomly selected. You know that. End of story. Why can’t you just concede a simple obvious point like that?

                This sort of thing is what people are talking about when they accuse you of making absurd tendentious arguments.

      2. “I think something as serious as deprivation of citizenship shouldn’t be a civil process,”

        Why not?

        The entire immigration and naturalization process is civil.

        1. Because citizens, whether natural born or naturalized, are entitled to the rights of citizens, and depriving somebody of the rights of citizenship is a definitively criminal process, not civil.

        2. As Brett said – this is a vested liberty interest that goes to the heart of our national identity.

          1. We remove children from homes and revoke custody, seize real property, transfer half of a person’s property to his or her spouse and do other things affecting liberty though civil process.

            1. Yes, yes we do.

              Should we?

            2. Parental rights get extremely strong scrutiny. This process has no such safeguards.

              And conflating property with citizenship is pathological.

    2. Eh, I’m kinda with Brett that the fear/uncertainty angle needs more support for it to be more than sophistic rhetoric.

      I mean, everyone knows the purpose behind this predictably performative nativism.

      1. I think what Manta is doing IS “predictably performative”, but I’m not sure that “nativism” is the right term for it.

        1. It’s screwing with immigrant citizens, what would you call it?

          Creating a system wherein due process is not met will lead to increased risk of deportation of legit citizens. I’d venture to say it’s possible that’s the entire purpose behind changing denaturalization to a civil process.

          1. No, Manta isn’t screwing with immigrant citizens. She’s claiming somebody else is. Performatively, of course, in an effort to de-legitimize an aspect of immigration enforcement.

            If anything, that’s anti-nativist.

            There’s the potential here for an abuse, which is why I agree that civil proceedings aren’t appropriate here. That actual abuses are taking place has yet to be demonstrated.

            1. Ah – I didn’t catch that you’d circled back. Manta is calling out the performative nativism, and I will agree with you that she seems to be a bit performative herself in doing so.
              ======================
              I don’t think the issue is potential for abuse per se. Civil litigation has fewer safeguards such that even normal, good faith process is going to fail more often.

              Given the numbers and the interest here, the cost-benefit doesn’t make sense, unless you’re sending a message. And the message looks to me like ‘we hate illegals so much and we don’t much care about running over some naturalized folks as we go get ’em.’ Bleach.

              1. There’s a “performative” aspect to all law enforcement: The law needs to be seen being enforced, or else nobody fears violating it. In THAT sense this is performative: Trump’s administration wants people applying for citizenship to see that if they obtain citizenship under false pretenses, they’re not home free. They’ll lose it again.

                And thus the crime of obtaining citizenship under false pretenses is discouraged.

                I don’t know that it’s “nativist”, unless your’e going to claim that all immigration law is “nativist”, which robs the word of any impact. Reason is, of course, open borders, and as a practical matter opposes ALL immigration law, though they’d rarely go so far as to admit that ‘all”.

                If you’re going to have any immigration law at all, you’re going to have some sort of potential for entry under false pretenses, and need for enforcement.

                1. I’d concur, except that this is by all accounts a vanishingly small problem they’ve spent this time and trouble to deter.

                  IMO it’s nativist because of the additional costs it presents to valid naturalized citizens for very marginal benefits to rule of law.
                  Meanwhile us natives are unaffected.
                  This cost falling so heavily on already naturalized immigrants is not general when it comes to immigration law.
                  =======================
                  I can’t be sure but this does provide a particular flavor of red meat whose flavor appeals not to you or I so much as to the growing knee-jerk ‘fear of the dusky hordes’ crowd. I mean, look at the immigration threads these days around here these days. Maybe it’s Reason, but more and more it’s not ‘how dare you conflate my opposition to illegals to anti-immigrant sentiment’ but rather ‘lets stop all immigration for…reasons.’ And I’ll betcha they also like this policy for…reasons.

                  Now the above theory is pure narritivism, I will admit, and so nothing I can particularly support factually, and if challenged I’ll lay flat. But damn does this fit the narrative pretty.

                  1. I don’t think it’s so much a vanishingly small problem, as it is a problem prior administrations didn’t care to do anything about. Which is not the same thing at all. Not caring about a problem does tend to result in having limited evidence as to its scope, which should not be confused with evidence of limited scope.

                    We now have an administration which is more interested in all sorts of immigration law enforcement than prior administrations, as a matter of announced policy that played a part in getting Trump elected. Having different priorities than prior administrations is supposed to lead to having different policies. There’s nothing illegitimate about that: The voters are allowed to elect somebody with different priorities, and get different policies as a result.

                    1. It’s hard to say, but the Trump Admin is as in the dark as you or I are and yet prioritized this.

                      You can see this as just hardening another soft target in our immigration system, but 1) even you admit that this an overreaction, and 2) there is no evidence this target was soft, and 3) if you’re into native born Americans being favored, this policy makes you quite happy.

                      But yeah, I should stop playing telepathy games about the secret agenda behind Admin policies. Lets just agree it’s a bad policy change and I’ll quit my hypocritical speculations.

                    2. I don’t think it’s so much a vanishingly small problem, as it is a problem prior administrations didn’t care to do anything about.

                      So it’s not vanishingly small after all? Or is it?

                      It’s a small problem when it comes to whether immigrant communities ought to be concerned, but a big one when it comes to the question of whether the government ought to be making a major effort to address it. Which way do you want to go?

                      As Sarcastro points out, you don’t have to have willful abuse of the procedure for the process to be, in effect, abusive. Civil procedures are somewhat error-prone here, so if you target lots of people for investigation you are going to make mistakes. Maybe the damage false positives do is big enough that it’s not worth the gain from denaturalizing anyone other the most egregious examples.

                    3. What it is, Bernard, is a problem we don’t really know the scope of, because prior administrations didn’t consider it important enough to find out. Absence of evidence, not evidence of absence.

                      Might be a small problem, after all, if US citizenship is one of the few valuable things people don’t try to steal.

                    4. I don’t think it’s so much a vanishingly small problem, as it is a problem prior administrations didn’t care to do anything about.

                      OK Brett. So you think, or at least suspect, it’s not a small problem.

                      That’s fine. You’re entitled, and neither of us actually knows. But if that’s what you, or Trump officials, think, then don’t minimize the numbers who will be affected by this policy. There will be lots of investigations, and even those that turn up no problem will cause a lot of stress, worry, maybe legal fees, on the part of those investigated.

                      Where there are court proceedings there will be mistakes, and more problems, not to mention serious problems for the families of those denaturalized, who may be here legally.

                      IOW, there is, at this point, ample reason fro concern. Just as we don’t know the scope of the problem, we don’t know the scope of the planned project. OTOH, we do have a pretty good idea of the Administration’s attitude towards immigrants, so it makes sense to fear that this won’t be a careful process with plenty of regard for the innocent.

                    5. The challenge, of course, is that very few immigrants know much about immigration law. They hire an immigration law who handles almost all the details, and at the end they get handed their immigration documents. Are you 100% sure that your lawyer did everything right? The fact that you didn’t instruct your lawyer to lie doesn’t mean that there isn’t a mistake in your paperwork somewhere, waiting for a hostile examiner to pounce on later and scream “AHA! Now we’ve got you!” After 20 or 30 years, I want to see a pretty egregious violation to justify denaturalization.

                    6. Right.

                      So your lawyer entered your address incorrectly, or misunderstood something you told him, and now you’re going to be denaturalized.

                      Don’t tell me that won’t happen. It will, and plenty of people, including some of the commenters here, will applaud it.

  3. “Director of the Center for Intellectual Property Law”

    Supreme Court issued a major Intellectual Property decision this week but some people just like to play politics I guess.

    1. Or, you know, note a paper’s publication that they’ve probably been working on for some time.

      1. Its a political paper, outside her expertise.

        1. You know her expertise?

          Quit with this attacking the messenger BS, Bob.

  4. Just in case you didn’t follow the link and read the paper:

    “But even if the program results in only a few hundred additional
    proceedings …”

    In other words, out of hundreds of thousands of naturalized citizens, the number involved is actually tiny. Hundreds, in fact. And that number includes those who committed fraud to become naturalized. God forbid we should keep the system honest. Another Volokh propaganda piece.

    ” Give me your tired, your poor, your criminal masses …” After all, for the Volokh class of people, ANY immigrants mean lower wages for the bottom earners, bigger profits for business, and higher stock prices for their portfolios. And without them, who the hell is going to cut the grass and clean up the leaves every year?

    1. Then why make this change?

      Changes in procedure have a symbolic force as well.

      Volokh propaganda. the Volokh class of people. I get you mean rich people, but yeesh. Also, statistically, wrong.

      1. All I see is the comedy in the phrase “volokh class of people” when read as if it were German.

    2. From the paper:

      In fact, in a 2017 article in the U.S. Attorneys’ Bulletin, several government officials “encourage[d] Federal prosecutors to consider referring cases for civil denaturalization when a case is declined for prosecution.” They wrote that filing civil proceedings rather thancriminal actions offers several “benefits”: Civil litigation carries alower burden of proof, there is no statute of limitations on civil denaturalization, there is no right to a jury trial, and there is no right to appointed counsel.

      “Benefits.”

      If your claim is that there are “criminal masses” involved, then use criminal procedures to prove it.

    3. IF the program results in only a few hundred additional proceedings.

      IF the program actually results in hundreds of thousands of proceedings…

    4. And how are you any different from your garden-variety socialist?

  5. Natualized citizens who defrauded the United States should be denaturalized…

    And upon issuance of the denaturalization order, they should be immediately deported to their country of origin.

    And I say that as the first-born US citizen in my family of naturalized citizens, including my parents, grandparents and brother…

    1. “Natualized citizens who defrauded the United States should be denaturalized…”

      Absolutely, if they get caught right away. If you’re looking back 20 or 30 years, I’m not so sure. Charge them with a crime, collect the fine, and get on with something else.

  6. The constitution says that anybody naturalized in the US is a citizen. That should be the last word on the matter. If they government thinks that you are not eligible, they have the opportunity to show that at the naturalization proceeding.

    1. Ah, so you’re of the “once you get it, even by cheating, you get to keep it” school of thought.

      I’m actually cool with that, if you get to spend your time as a citizen in prison.

      1. If they can prove beyond a reasonable doubt that you committed a crime, sure.

        1. Indeed, and I HAVE said that I think this should be handled as a criminal trial, with all the appropriate protections, not as a civil proceeding.

          But that’s a separate issue from whether the government should move to denaturalize citizens who obtained their citizenship fraudulently. It should, but should have to prove it like any other crime.

          1. What would you consider a sufficiently serious offense to merit denaturalization?

            It’s fine to say it should be handled as a criminal trial – I definitely agree – but let’s start with what offense even merits denaturalization if proven.

            And should there be a statute of limitations on some of them? I mean, a statute of limitations on a normal criminal offense means,
            “once you get it, even by stealing, you get to keep it” if you get away with it for long enough.

            1. On the one hand, it seems OK to denaturalize Nazis who obtained American citizenship by forgetting to mention that they’d been Nazis. (Or, for anyone who isn’t horrified by Nazis becoming Americans, by any other group that seems incompatible with being extended citizenship here that fits within your personal politics, if they wouldn’t have been welcome if the truth were told at the time.) On the other hand, the reason why statutes of limitation exist is because memories get fuzzy and documents get lost. This is just as true over in civil court as it is in criminal court. So there’s arguments both ways.

  7. The border should be closed. Zero immigration for 10 years.

    1. We don’t need to close it. We just need to close it to Hispanics, a group who overwhelmingly makes America worse.

    2. Why do you hate President Trump so much?

      If there was no immigration, then who would pick his grapes and remove the condoms from his golf course pools?

      1. This argument is as stupid as it is tired. From 1924-1965, there was basically zero immigration to the United States. Somehow, even in places that were all white, tomatoes got picked, hotels got cleaned, and people were taken care of in nursing homes.

        1. Take it up with President Trump then.

          He’s the one employing immigrants.

        2. We had a guest worker program in that exact time period, where Mexicans came and worked here. We also had high numbers of illegal immigrants, dropping only during the baby boom.

          1. Yes, and men came to do some of the work, and then went home. They didn’t bring their families with them and women weren’t coming in to squat “citizen” children out of their bodies.

        3. ” From 1924-1965, there was basically zero immigration to the United States.”

          May I suggest googling “bracero program”?

          1. May I suggest googling the definition of “immigrant?”

            1. Do trolls use it to mean something other than “people from somewhere else who come here to live and work”?

    3. Nativist.

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