Denaturalization: Options For Those Facing Difficult Choices
Author: USA Immigration lawyer Alena Shautsova
As naturalization is the goal of every immigrant in the United States, denaturalization is her/his worst fear. Denaturalization is the process during which the US government is trying to take back the naturalization of a person who became a US citizen. A person who was born in the United States, cannot be “denaturalized.” Only a person who obtained US citizenship via naturalization proceedings and took the Oath to be loyal to the US government.
Note that if a person received a certificate of citizenship (that is when a person became a citizen automatically based on US citizenship of his/her parents) the government may simply rescind it, and does not have to start the denaturalization lawsuit against the person. To learn more about the basis for denaturalization read our blog.
Typical grounds of denaturalization proceedings would be a fraud in obtaining the underlying Immigration benefit; or commitment of unlawful acts discovery of which would have led to the denial of the naturalization. Recently, the denaturalization proceedings were launched against persons who used multiple identities in the United States, and were in fact ordered deported under a different name; and persons who were guilty of crimes against humanity, such as the prosecution of others and who concealed these crimes and obtained US Immigration benefits fraudulently.
In denaturalization proceedings, the government must its case by “clear, unequivocal, and convincing” evidence that does not leave “the issue in doubt.” Fedorenko v. US, 449 U.S. 490, 505 (1981).
This article focuses on the Decision Memorandum by Daniel Renaud and sheds light on the settlement process during the denaturalization proceedings. The Memorandum was shared by the American Immigration Lawyers Association, and is believed to have been obtained via Freedom of Information Act request.
When the government considers taking citizenship of a naturalized citizen, the government’s attorney will mail a person a letter, containing a notice of intent to file the lawsuit to denaturalize the person, and containing an offer to “settle” the matter. Typically, this offer entails that rather than fighting denaturalization proceedings, a person would leave the US voluntarily. Why would a person want to settle the matter? The main reasons would be to try not to get deported and to save the status of his/her derivatives because when the principal loses his/her citizenship, the family members who obtained their status based on that citizenship would logically have to lose their status as well.
To avoid such drastic consequences, depending on person’s circumstances and exact facts of wrongdoing, the parties (that is the person and the government) may reach a settlement under which, for example, a person’s status may revert back to lawful permanent residency and the government would not seek to deport/remove the person, and/or a person’s derivatives would be able to keep their status in the United Statues.
Note that under the denaturalization ground of illegal procurement of naturalization, a child of the citizen who is about to be denaturalized may keep his/her citizenship under INA 340(d). The law, however, does not provide for clear guidelines as to what exactly should happen to the derivatives in which situations, and settlement negotiations may yield different results in similar cases.
Note that if a person is convicted of knowingly procuring naturalization by fraud, the convicting court shall revoke naturalization. In this case, the revocation of citizenship is automatic, and no prior notice is required.
Finally, interestingly enough, that if a person is convicted of crimes while a US citizen, and then he/she is denaturalized, the person cannot be deported based on conviction of crimes of moral turpitude because when they were committed the person was a US citizen, and hence they cannot count for removal purposes. Costello v. INS, 376 U.S. 120 (1964).