by Ava Benach
Introduction: Immigration Fears Under the Trump Administration
It is not even two weeks into the second Trump administration and the fear in the immigrant community is overwhelming. At Benach Collopy, we have tried to offer our clients and friends a clear-eyed assessment of risk. Although the situation is quite unpredictable, we continue to advise that people know their rights in their home, in the workplace, and in the streets. We urge clients not to react to rumors and to understand their own level of risk of an ICE enforcement action.
Naturalized Citizens: Emerging Concerns
The fear and worry among non-citizens is pretty predictable . However, what has surprised us is the number of naturalized U.S. citizens who have reached out to us worried about their citizenship. We did not expect that. However, the administration’s willingness to challenge well-established principles such as birthright citizenship, the constitutional order that all born in the U.S. are U.S. citizens, except for a very limited exception for the children of diplomats, and the reports that ICE arrested a Puerto Rican U.S. military veteran in Newark, NJ contribute to the culture of fear, even those who are U.S. citizenship.
Clarifying U.S. Citizenship
Let’s be very clear: A US CITIZEN IS A US CITIZEN. There is no legal difference between someone who gained citizenship because of birth born in the U.S. and those who chose to become citizenship through naturalization. A U.S. citizen who naturalized is a U.S. citizen equal in every respect to anyone born in the U.S.
But can immigration take away citizenship from someone that it naturalized?
This is the question we have gotten from a number of former clients who had a challenging naturalization but prevailed and were sworn in as U.S. citizens.
Legal Grounds for Denaturalization
A naturalized US citizen can have their citizenship taken away if the government proves by clear, convincing and unequivocal evidence in a federal court proceedings that the person erroneously obtained citizenship. Alternatively, the U.S. can revoke citizenship as the result of criminal proceeding that demonstrates beyond a reasonable doubt that citizenship was “illegally procured.” The fact that this must go to a federal court indicates just how serious a case must be, how convincing the proof of the government must be, and the immense burden of proof on the government to prove its case. Because of the difficulty for the government to revoke citizenship, for decades before the Trump administration, the government averaged about ten denaturalization cases a year.
Revocation for Ineligibility or Fraud
Naturalization can be revoked if the applicant was, in fact, ineligible for naturalization by failing to meet the requirements for citizenship. This procedure does not require to prove that an applicant engaged in fraud or concealment of a material fact, but simply whether the applicant satisfied the requirements of the citizenship statute. Naturalization may also be revoked if it was obtained by “concealment of a material fact or by willful misrepresentation.”
The DOJ’s Process and Burden of Proof
The process of denaturalization also serves as a disincentive for the government to bring a denaturalization case. If USCIS identifies an alleged error in a naturalization case it granted, it can refer the case to the Department of Justice to decide whether to petition the federal court to denaturalize the person. USDOJ policy for many years has been not to seek denaturalization due to errors and irregularities but to reserve denaturalization efforts for those cases presenting public safety, national security, and human rights issues. USDOJ is instructed to consider the length of citizenship, the conduct of the applicant since citizenship, and other equities. USDOJ almost determine whether it can convince a federal judge that citizenship as wrongly bestowed. Given the high burden of proof for denaturalization, it is no wonder that the number of cases brought every year is minimal.
The Trump Administration’s Approach
Is it possible that USDOJ takes a more aggressive approach. Of course. That is what the Trump administration is promising. But the USDOJ will still have to go to federal court to prove its case. While the Trump administration is threatening aggressive action, the numbers of naturalized citizens, the challenges of proving illegal procurement or fraud are significant and these factors mean that the vast majority of naturalized citizens have nothing to worry about.
Rest Assured: Your Naturalization Status is Secure
One thing we would add for people who got citizenship with our representation: we are 100% confident in the legality and propriety of your naturalization. As you know, we do not hide facts, we do not lie, we do not conceal truths from the USCIS. We reveal all relevant information and fight through it. Where the negative factors have been revealed and overcome, a naturalized citizen is in a strong position because any potential irregularities have already been analyzed and considered. We do not think our former clients have much to worry about.