New York Lawyer's Legal Updates

Denaturalization: How US Government Can Take Citizenship Back

Author: US Citizenship Attorney Alena Shautsova

The scariest nightmare for any former Immigrant: to be placed in proceedings where the US government is seeking to take back the granted citizenship. The good news here (yes, there is good news everywhere!): you would have rights and an opportunity to defend yourself in Court!

Denaturalization must be instituted not in any court, but in a federal court, either through civil proceedings or pursuant to a criminal conviction. These proceedings are initiated through the United States Attorney’s Office or other components within the U.S. Department of Justice. An administrative body of Department of Homeland Security, USCIS does not have authority to institute administrative denaturalization proceedings. See Gorbach v. Reno, 2001 WL 34145464 (February 14, 2001) (Entering order pursuant to Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000)).

A citizenship can be taken away when there is clear, unequivocal and convincing evidence that leaves the issue of illegality free of doubt. Fedorenko v. US, 449 US 490 (1981).

What would be the grounds of such a drastic and severe punishment?

  • Membership in Certain Organizations: subversive, communist or anarchist organization within 5 years of naturalization.
  • Concealment of Material Evidence or Willful Misrepresentation: if the facts had natural tendency to influence a decision of the USCIS officer.
  • Illegal Procurement: does not have to be connected to the naturalization application itself.
  • Subversive Activates; and
  • Military Service Denaturalization: a dishonorable separation from the Armed Forces of an individual who received citizenship based on INA §§ 328 and 329 before he’/she served 5 years, may cause denaturalization (only applies to those who was granted citizenship after Nov. 24, 2003).

Laches, waiver, statute of limitations, and equitable estoppel are not defenses to denaturalization. It means that 5, 10, 20, 55 years later, the proceedings can be started… Also, even if in the course of criminal proceedings the government agrees not to further prosecute the defendant, it does not stop the government to institute denaturalization proceedings. However, if there is an agreement that the US government would not take any action to prevent naturalization, such an agreement would bar an illegal procurement charge.

Sadly, that if the principal Immigrant is denaturalized due to concealment or misrepresentation, the family members who received the status through him would lose their status as well.

That is why it is extremely important to have all your Immigration paperwork done professionally, because ah honest mistake may turn out to be a huge issue several decades later.

18 May 2016
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