Wednesday, September 5, 2018
Immigration Article of the Day: (Un)Civil Denaturalization by Cassandra Burke Robertson and Irina D. Manta
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, they 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. It alleged that an asylum claim was improperly filed more than twenty-five years ago. The denaturalization judgment was granted in 2018, with the defendant never having been personally served with process and never making 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 administration’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 violates the rights guaranteed by the Citizenship Clause of the Fourteenth Amendment. Last, but not least, (un)civil denaturalization undermines the constitutional safeguards of democracy.