"Inalienable Citizenship" Accepted for Publication

The article will appear in the North Carolina Law Review.

|The Volokh Conspiracy |

My coauthor Cassandra Burke Robertson and I previously published "(Un)Civil Denaturalization" and "Litigating Citizenship" on (mainly procedural) issues surrounding loss of citizenship. The third article in this trilogy, "Inalienable Citizenship", is now forthcoming in the North Carolina Law Review. The abstract is here:

Over the last decade, citizenship in the United States has become increasingly precarious. Denaturalization cases increased under President Obama and skyrocketed under President Trump. No number of years spent in the United States protects individuals against sudden accusations that they procured citizenship fraudulently or were never eligible for citizenship to begin with. Moreover, the government has challenged the citizenship status even of some individuals—largely from ethnic and religious minority communities—that the government had previously recognized as citizens for decades.

If the U.S. justice system is committed to the values of reliance and finality, how can it permit citizenship to be challenged without any time limit? American courts currently do not recognize a statute of limitations for civil denaturalization or apply the traditional doctrines of equitable estoppel or laches to this context. This state of affairs is partly based on judicial misunderstanding of the property-like features of citizenship and of the punitive nature of removing it. We argue that this must change. Denaturalization and citizenship denial undermine the foundation of our democratic system by tolerating second-class citizenship and promoting chilling effects against free speech and political participation. The time has come for the legislative and judicial branches to recognize that delayed citizenship challenges violate constitutional due-process protections. Security of citizenship is an essential bedrock of our constitutional order.

NEXT: Western District of Pennsylvania Accurately Stated the Modern-Day Relevance of Jacobson v. Massachusetts

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Citizenship should be seen as a privilege. Not a right. Or at least a right with responsibilities. Failure to learn this lesson has been the downfall of many an empire. Latest of which is the Western World.

    1. [citation needed]
      I’ve never heard of any political organization which fell apart due to bad citizenship protocols.

  2. Is there a statute of limitation on a fraudulently obtained degree?

    1. Presumably, there would be a tolling-for-fraud exception to any statute of limitations. That is common for many such statutes.

    2. IMO a degree and citizenship aren’t comparable.

      A degree is a certification that you passed certain courses and (theoretically) learned something of value. If it turns out you didn’t, then claiming the degree is an ongoing fraud against employers and others who relied upon it.

      For most of us citizenship was awarded automatically at birth and doesn’t certify anything other than that. Even for naturalized citizens, all it certifies is that you clocked out your time and passed an incredibly easy citizenship test. In ordinary dealings I don’t rely on the fact that another person is a citizen, except in situations where it’s been artificially made a qualification by law. For example, idiotic export control regulations on electronic parts and software that aren’t even being exported.

      Having said that, I could go either way on stripping citizenship from adults who lied as adults to get it. However, no way I could support taking someone’s citizenship because their parents lied, or even because of something they said themselves as a child.

  3. Fraudulently applying for (and obtaining) citizenship should result in loss of citizenship. Who exactly is losing the citizenship they fraudulently obtained? (Note, they lied on their citizenship application in addition to the crimes listed below). War Criminals, Terrorists, Sex criminals…

    Some case examples.

    1. U.S. v. Dzeko, No. 18-cv-759 (D.D.C.). Successful civil denaturalization of an individual who was convicted in Bosnia of executing eight unarmed civilians and POWs during the Balkans conflict.

    2. U.S. v. Lopez, No. 18-cv-00527 (D. Md.). Successful civil denaturalization of an individual who sexually abused a minor victim for multiple years

    3. U.S. v. al Dahab, No. 15-cv-5414 (D.D.C.). Successful civil denaturalization of individual convicted of terrorism offenses in Egypt who admitted recruiting for al Qaeda within the United States and running a communications hub in California for the Egyptian Islamic Jihad terrorist organization. The defendant was denaturalized while in Egypt, stripped of his passport, and prevented from returning to the United States.

    Why Irina is going to bat for terrorists who lie to get U.S. Citizenship, and then thinks they should keep it…I’m not sure.

    1. “Why Irina is going to bat for terrorists who lie to get U.S. Citizenship, and then thinks they should keep it…I’m not sure.”

      She took one look and it was love at first sight for our resident tousled haired bespectacled Adonis Prof Somin and she is trying to impress him by one upping his ridiculous open border rants.

      1. Ah yes, who can forget that infamous line on the Statue of Liberty

        “Give us your war criminals, your child rapists, your terrorists yearning to destroy America”…

    2. Don’t forget retired U.S. autoworker John Demjanjuk, who had been, at the least, being a death camp guard. Israel thinks he was Ivan the Terrible at Treblinka but didn’t execute him because Israel has a very high standard for conclusive identification, which wasn’t met.

      Demjanjuk is now 91 years old, most of these guys are now dead — but I seem to remember a few more in years past. And yes, you lose your US citizenship for this…

      1. It seems to me that a very narrow exception for stuff like war crimes is not problematic. But for most of the stuff that gives rise to denaturalization, Prof. Manta is right.

        1. “Irina is right”

          So, if you lie to get citizenship, you get to keep it?

          Why wouldn’t someone lie to get citizenship then?

  4. The CC’s usual gang of racists and xenophobes is out in force, with a touch of misogyny for a rare post by the only female blogger.

    1. You don’t need misogyny to think Manta is an idiot. Just reading her stuff accomplishes that.

      As for racism and xenophobia, I think we should be skimming the cream of the rest of the world, without any concern about race. If you’re a law abiding, English literate, well educated capitalist, welcome! Who the hell cares what color you are, or where you came from, so long as you’ll actually be a positive contribution to America?

      OTOH, if you don’t speak English, flunked high school, and signed up with the communist party, I don’t care if you’re a Norwegian albino, forget it.

      Now, there IS a bit of a problem that, for certain countries, you can’t actually confirm the “law abiding” part, because they’re either unable or unwilling to cooperate in vetting their citizens who want to leave. They might even deliberately falsify records to foist terrorists on us.

      And other countries have such low levels of educational attainment that they just aren’t going to be a good source of educated, English literate immigrants, no matter how willing they are to cooperate in having the cream of their crop skimmed off and exported.

      But, really, aside from those practical realities, if somebody makes the grade, I’m happy to have them.

      1. No, the assumption you and the others are making is that people from certain countries do not make the grade. The comments cannot he explained otherwise.

        1. So Capt…

          Quick question for you. Do you believe terrorists who lie to obtain US Citizenship should be allowed to maintain that fraudulently obtained US citizenship?

          Yes or no?

          1. She’s talking about finality of citizenship determinations. Not naturalization = letting in terrorists. You’re the one making that assumption.

        2. As I said, for some countries you can’t realistically verify that people make the grade. For others, verification is possible, but so few will make the grade that they’re not going to be showing up in great numbers anyway.

          Realistically, if you’re selecting immigrants based on rational criteria, (Which ones will be of greatest benefit to the country.) you’re not going to be seeing many immigrants from Trump’s “shithole” countries, because of 1st paragraph issues.

          Racial discrimination and xenophobia don’t figure into that.

          1. Realistically, if you’re selecting immigrants based on rational criteria, (Which ones will be of greatest benefit to the country.) you’re not going to be seeing many immigrants from Trump’s “shithole” countries, because of 1st paragraph issues.

            It’s amazing how so many people who pretend to be against socialism suddenly become in favor of central government planning when it comes to the makeup of the work force.

      2. You may not need misogyny, but this: She took one look and it was love at first sight for our resident tousled haired bespectacled Adonis Prof Somin and she is trying to impress him by one upping his ridiculous open border rants is unnecessary and sexist as hell. To be fair, Amos has distinguished himself in this area before.

        1. Ok I’ll settle for sexism. And as you implied, this is actually one of Amos’s weaker efforts. It was late, I suppose, and several hours after any women had run away from his maskless face.

      3. You don’t need misogyny to think Manta is an idiot.

        Really? She’s a highly qualified law professor who has a lot of published scholarship.

        One of the most unfortunate things about internet discourse is that people very quickly conclude, and express, that even highly accomplished intellectuals who disagree with them are stupid.

        And to be clear, plenty of liberals on the Internet do this too. Richard Epstein is many things, but he isn’t “an idiot” either.

        You literally cannot become a top-flight academic if you are an “idiot”. The amount of work and intellectual capabilities required preclude this. The dumbest person on any major university’s faculty has well-above-average intelligence.

        1. highly qualified law professor(s) who has a lot of published scholarship can have very dumb ideas too.

          1. Except nobody has pointed out why her idea is dumb. It’s just the usual misogynist bitch slapping.

        2. Counterpoint: Bruce Hay.

          Of course, lots of highly accomplished people in the legal field are idiots.

      4. You don’t need misogyny to think Manta is an idiot. Just reading her stuff accomplishes that.

        Brett, have you heard the expression, “Pot calling the kettle black”?

  5. Once you’ve decided something should be handed out to anybody who asks for it, no questions, not taking it away from people who’d fraudulently obtained it does kind of automatically follow.

    1. The argument seems to be not a legal argument but a policy one. It hinges on the idea that that citizenship has different interests involved than other things of value.

      You know I don’t find Prof. Somin’s arguments terribly convincing. But this makes sense to me.

      1. So, Sarcastro…

        You believe that if someone obtains US citizenship under false pretense, lying on their application to obtain it, then it’s their’s for life? Is that your view?

        If a terrorist lies (I know, shocking) to get US Citizenship, then proceeds to recruit for Al Qaeda in the US, then they should keep their US Citizenship that was fraudulently obtained?

        1. 1) It is questionable whether the cost-benefit is there to go deep on people who have been here for a long time.
          a) The benefit on an individual basis is negligible
          b) the cost is a lot of time and trouble doing background checks

          2) This is not to say that if fraud becomes manifest early on that no actions can be taken; neither me nor the OP seem to argue such fraud cannot be addressed – it’s *delayed citizenship challenges* that are the issue.

          3) There is the additional cost of the tone it sets and the fear it’ll put into legitimate naturalized citizens that at any time they could be targeted and kicked off for some technical reason. Or at the very least put on trial for their citizenship.

          4) Not to mention the potential for abuse of discretion. Disfavored people get the deep dive to find a reason to get rid of their citizenship.

          5) Symbolically, this isn’t just about rule of law. Citizenship isn’t just a thing of value, it’s more largely a social and moral act. Making it a thing that is more alienable than the status quo changes the nature of our society into a fundamentally more insular one.

          6) Shut up about terrorism. That’s just rank emotionalism. There is no connection between terrorism and citizenship. If anything, the correlation is that natural born citizens are more likely to be terrorists.

          1. “1) It is questionable whether the cost-benefit is there to go deep on people who have been here for a long time.”

            It’s in the nature of a cleanup effort, where prior administrations had just blown the issue off. Now, to establish that you don’t get vested in fraudulently obtained citizenship if you just can hang on long enough, we have to go back and do the work previous administrations couldn’t be bothered with.

            The delayed citizenship challenges are due to prior administrations just not caring.

            1. You’ve explicated no benefit. Moral hazard isn’t good enough.

          2. We’ll start with 6)

            “6) Shut up about terrorism.”

            No. I won’t. Because Irina is complaining about “removing citizenship from people”, yet those people (who have their citizenship being removed) are disproportionately…terrorists. Here are some cases below.

            Out of the hundreds of thousands of people granted US Citizenship in the last decade or two, a couple hundred have had court cases having it revoked. And there are many TERRORISTS among those cases. Disproportionate to the population. So WHY ARE YOU DEFENDING TERRORISTS?!?! Do you want another 9/11?

            U.S. v. al Dahab, No. 15-cv-5414 (D.D.C.). Successful civil denaturalization of individual convicted of terrorism offenses in Egypt who admitted recruiting for al Qaeda within the United States and running a communications hub in California for the Egyptian Islamic Jihad terrorist organization. The defendant was denaturalized while in Egypt, stripped of his passport, and prevented from returning to the United States.

            U.S. v. Kariye, No. 15-cv-1343 (D. Or.). Successful civil denaturalization of individual who received military training in a jihadist training camp in Afghanistan; coordinated with Osama bin Laden and other known terrorist leaders; and was associated with terrorist organizations including Makhtab Al-Khidamat, a U.S. government-designated terrorist organization and pre-cursor to al Qaeda. The Office of Immigration Litigation coordinated a settlement that facilitated the defendant’s self-deportation to Somaliland despite his presence on No Fly List.

            U.S. v. Hamed, No. 2:18-cv-0424 (W.D. Mo.). Successful civil denaturalization of an individual convicted of conspiring to illegally transfer more than $1 million to Iraq in violation of federal sanctions and of obstructing internal revenue laws with respect to tax-exempt charities. In furtherance of those crimes, the defendant regularly authorized and transferred tax-exempt funds from a non-profit organization’s accounts in the United States to an account in Jordan controlled by a Specially Designated Global Terrorist.

            1. I don’t think there is much of an indication this what she’s talking about.

              I don’t think your examples are proof of your posit that it’s disproportional.

              I also don’t think going after peoples’ citizenship is a needed or advisable remedy for a terrorist.
              We have plenty of other stuff we can do to them, this looks like a dodge of due process for that other stuff, and the cost of making citizenship more easily revocable is nontrivial, as noted above.

              1. Sarcastro: “I don’t think” That much is clear. You really don’t think

                USCIS naturalized 834,000 new citizens in FY 2019. An 11 year high.

                Meanwhile less than 300 people had their citizenship revoked during this time.

                Some more highlights (from 2019-2018)

                Friedrich Karl Berger had his citizenship revoked in 2019/2020 for being a literal Nazi. IE, he was a guard at a Nazi Concentration Camp in WWII.

                Shqaire, Vallmoe had his citizen revoked for “failing” to note he was a member of the PLO and served time for bombing civilian buses in Israel.

                Karkoc, Michael had his citizen revoked for..being literal Nazi

                Odeh, Rasmea…literal terrorist bombing in Israel (2018).

                You want more?

                Yes, this is “Disproportionately War criminals and Terrorists.

                1. Highlights means you’re curating to make a case.
                  Your narrative bespeaks an agenda.

          3. Sarcastro: If someone is a terrorist working against the USA, shouldn’t he be in prison? All stripping his citizenship does is free him in another country where we cannot effectively monitor him, and where it’s easy to eat others of the same opinions.

        2. “You believe that if someone obtains US citizenship under false pretense, lying on their application to obtain it, then it’s their’s for life? Is that your view?”

          If God appears in the sky and says that the person lied, then they lied. Other that that, we’re just talking about process. And there’s certainly room to read the 14A as saying that the Government loses its chance to claim fraud once naturalization is complete.

          1. The courts have decided otherwise. As does common sense.

  6. Better Irina: “The Case For KGB Agents, CCP Hackers, and Al Qaeda Terrorists to be American Citizens.”

    1. Might you explicate where you’re getting this from the OP?

Please to post comments