Revocation of Citizenship

• Decision Date: 03 March 1997
• Docket Number: 97-6
• Citation: 21 Op. O.L.C. 44
• Parties: Revocation of Citizenship
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

21 Op. O.L.C. 44

Revocation of Citizenship

No. 97-6

United States Department of Justice

March 3, 1997

DAWN E. JOHNSEN Acting Assistant Attorney General Office of Legal Counsel

Revocation of Citizenship

The Immigration and Naturalization Service has authority to institute either administrative or judicial proceedings to denaturalize citizens whose criminal convictions disqualified them from citizenship as a matter of law. Whether the proceedings are administrative or judicial, the INS must establish the allegations in its complaint by clear unequivocal, and convincing evidence.

The INS has no authority to seek denaturalization if the INS examiner had discretion to find that an applicant was of good moral character, and in fact did exercise that discretion so as to find that the applicant was of good moral character, unless the INS establishes in its complaint by clear, unequivocal and convincing evidence either that the applicant gave false testimony with the intention of obtaining an immigration benefit or lhat the examiner's decision resulted from the applicant's willful misrepresentation or concealment of a material fact.

The INS may seek denaturalization if the applicant made a false oral statement under oath (regardless of whether the testimony is material) with the subjective intent of obtaining immigration benefits. Alternatively, the INS may seek denaturalization if the applicant procured naturalization by concealment or willful misrepresentation of a material fact In either case the INS must prove its complaint by clear, unequivocal, and convincing evidence.

MEMORANDUM OPINION FOR THE GENERAL COUNSEL IMMIGRATION AND NATURALIZATION SERVICE

You have asked for our opinion on certain questions that were originally raised by the House Subcommittee on National Security, International Affairs, and Criminal Justice of the Committee on Government Reform and Oversight, in connection with the Immigration and Naturalization Service's ("INS") naturalization program.^[1] We begin by outlining the legal principles governing proceedings for denaturalization (or revocation of citizenship). See Parts I-UI below. In light of those principles, we then answer the particular questions you have posed. See Part IV below.

I.

The controlling statute, the Immigration and Nationality Act ("INA") § 340(a), 8 U.S.C. § 1451(a) (1994), reads in relevant part as follows [ 45] It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any district court of the United States in the judicial district in which the naturalized citizen may reside at the time of bringing suit for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation . . . .^[2]

Section 340(a) provides two distinct legal bases for denaturalization or revocation of citizenship. The first permits the INS to seek revocation if the naturalized person has procured citizenship illegally. "[T]here must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship 'illegally procured;' and naturalization that is unlawfully procured can be set aside." Fedorenko v. United States, 449 U.S. 490, 506 (1981).

Second, revocation is available if the person procured naturalization "by concealment of a material fact or by willful misrepresentation." INA § 340(a), 8 U.S.C. § 1451(a).^[3] Denaturalization on this basis "plainly contains four independent requirements: the naturalized citizen must have misrepresented or concealed some fact, the misrepresentation or concealment must have been willful, the fact must have been material, and the naturalized citizen must have procured citizenship as a result of the misrepresentation or concealment." Kungys v. United States, 485 U.S. 759, 767 (1988).

Whichever of these two theories the INS pursues in seeking denaturalization, it must prove the allegations in its complaint "by ' "clear, unequivocal, and convincing" evidence which does not leave "the issue in doubt." ' " Id. at 781 (citation omitted); see also Id. at 772; Fedorenko, 449 U.S. at 505; Polites v. United States, 364 U.S. 426, 435 (1960); Chaunt v. United States, 364 U.S. 350, 355 (1960); Schneiderman v. United States, 320 U.S. 118, 123, 125 (1943).^[4]

Once the United States has met its burden in a judicial denaturalization proceeding, the court must enter an order revoking the naturalization order and canceling [ 46] the certificate of naturalization. Fedorenko, 449 U.S. at 518. The court "lack[s] equitable discretion to refrain from entering a judgment of denaturalization." Id. at 517.

Although proceedings for denaturalization have traditionally been judicial in character, administrative denaturalization is also permissible in some circumstances. We understand that, if the INS institutes denaturalization proceedings with regard to any of the naturalization cases approved between September 1995 and September 1996 that are currently the subject of a congressional investigation, those proceedings will ordinarily be administrative.

The relevant INA regulation, which was promulgated under the authority of INA § 340(h), see Revocation of Naturalization, 61 Fed. Reg. 55, 550 (1996) (to be codified at 8 C.F.R. pt. 340), ^[5] provides a procedure for the reopening of naturalization proceedings by the district director under whose jurisdiction a naturalized citizen resides. The regulation authorizes the INS to ' 'reopen a naturalization proceeding and revoke naturalization in accordance with this section, if the Service obtains credible and probative evidence which: (1) Shows that the Service granted the application by mistake; or (2) Was not known to the Service Officer during the original naturalization proceeding; and . . . (i) Would have had a material effect on the outcome of the original naturalization [proceeding]; and (ii) Would have proven that: (A) The applicant's application was based on fraud or misrepresentation or concealment of a material fact; or (B) The applicant was not, in fact, eligible for naturalization." Id. at 55, 553-54 (to be codified at 8 C.F.R. § 340.1(a)). Notice of intent to reopen naturalization proceedings "must be served no later than 2 years after the effective date of the order admitting a person to citizenship, " id. at 55, 553 (§ 340.1(b)(1)), i.e., two years after the naturalized citizen has taken the oath of allegiance to the United States. The naturalized person has the opportunity to respond and may request a hearing, id. at 55, 553 (§340.1(b)(3)), and has a right to counsel, id. at 55, 554 (§ 340.1(b)(5)). The burden of proof in such administrative proceedings — as in judicial denaturalization cases — is on the INS to prove its complaint by clear, unequivocal and convincing evidence.^[6] A decision adverse to the naturalized citizen may be appealed administratively, id. at 55, 554 (§ 340.1(e)), and, if the administrative appeal is also adverse [ 47] to that individual, he or she may seek judicial review under INA § 310, 8 U.S.C. § 1421. Id. at 55, 554 (§ 340.1(f)).

II.

In this Part, we examine revocation of citizenship on the first of the two bases — that naturalization was illegally procured. In Part HI below, we turn to the second basis for denaturalization — that naturalization was procured by concealment of a material fact or willful misrepresentation.

As we have noted above, an alien may be naturalized only upon "strict compliance with the . . . 'terms and conditions specified by Congress.'" INS v. Pangilinan, 486 U.S. 875, 884 (1988) (quoting United States v. Ginsberg, 243 U.S. 472, 474 (1917)). See also INA § 310(d), 8 U.S.C. § 1421(d) ("A person may only be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this title and not otherwise") (emphasis added); Maney v. United States, 278 U.S. 17, 22 (1928) (Holmes, J.); Tutun v. United States, 270 U.S. 568, 578 (1926) (Brandeis, J.); Johannessen v. United States, 225 U.S. 227, 240-42 (1912); Schneiderman, 320 U.S. at 161-62 (Douglas, I, concurring); United States v. Beda, 118 F.2d 458, 459 (2d Cir. 1941) (A. Hand, J.). The ordinary prerequisites for naturalization are set forth in INA §316, 8 U.S.C. § 1427 (1994), and include requirements as to lawful residence in the United States, ^[7] good moral character, attachment to the principles of the United States Constitution, and favorable disposition to the United States. At the time of applying for naturalization, the applicant bears the burden of establishing that he or she possesses the qualifications for citizenship. INA § 316(e), 8 U.S.C. § 1427(e); INA §318, 8 U.S.C. § 1429 (1994). The standard of proof is whether the applicant has established the necessary facts by a preponderance of the evidence. See 8 C.F.R. § 316.2(b) (1997).

The requirement that the applicant be of good moral character is particularly relevant to the questions you have posed. A finding of good moral character is precluded as a matter of law if, within the statutory period required for establishing good moral character, the applicant falls within any of several categories set forth in INA § 101(f)(1)-(8), 8 U.S.C § 1101(f)(8) (1994). These legally disqualifying categories include, among others, being an habitual drunkard; deriving one's income principally from illegal gambling; having two or more gambling convictions; and having been confined, as a...