• Denaturalization
  • August 17, 2016
  • Law Firm: The Law Offices of Grinberg Segal PLLC - New York Office

    However, citizenship should only be taken away where there is clear, unequivocal and convincing evidence that leaves the issue of illegality free of doubt. Fedorenko v. Us., 449 U.S. 490, 505--06 (J 981). Moreover, a naturalized USC cannot lose citizenship except through a final determination brought in denaturalization proceedings under 8 U.S.C. §1451 or administratively. U.S. v. Clarke, 628 F.Supp.2d 1 (D.D.C. 2009) [refusing to dismiss charge that defendant kidnapped a United States citizen because the person obtained citizenship by fraud]. If USCIS believes there are grounds for revocation, they can recommend the institution of such proceeding pursuant to INA §340(a). 8 C.F.R.§340.2(a). The venue for such proceedings is in the judicial district in which the naturalized citizen resides. INA §340(a). But what if the citizen is in prison? Given the specific definition of residence in INA §101(a)(33), the Ninth Circuit determined that there is a "rebuttable presumption that an incarcerated individual 'retains residence in the judicial district where he lived prior to incarceration." US. v. Arango, 670F.3d 988, 995-99 (9th Cir. 2012) [remanding for determination whether prison is in fact place of residence]. But see U.S. v. Stabler, 169 F.2d 995,998 (3d Cir. 1948) [last residence was proper venue because a person does not acquire a domicile while imprisoned].
    1. Membership in Certain Organizations; Prima Facie Evidence-INA §340(c), 8 U.S.C. §1451(c). Membership or affiliation with a subversive, communist, or anarchist organization under INA §313, 8 U.S.C. § 1424, within.5 years of naturalization is prima facie evidence that the applicant was not attached to the principles of the U.S. Constitution and was not well-disposed to the good order and happiness of the U.S. at the time of naturalization. INA §340(c), 8 U.S.C. § 1451(c).
    2. Concealment of Material Evidence or Willful Misrepresentation-INA §340(a), 8 U.S.C. §1451(a). In Kungys v. u.s., 485 U.S. 759 (1988) the Court's plurality opinion cast aside the previous standard defaming material misrepresentation for denaturalization purposes in Chaunt v. U.S., 364 U.S. 350 (1960) and determined that "the test of whether ... concealments or misrepresentation were material [under 8 US.C. §1451(a)] is whether they had a natural tendency to influence the decision of the INS." Denaturalization based on a material misrepresentation requires 4 independent elements: "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." 485 U.S. at 767. Determination of materiality is therefore a mixed question of law and fact. u.s. v. Gaudin, 515 U.S. 506, 521-22 (1995). The government must prove that the citizen procured naturalization by unlawful conduct. Us. v. Stelmokas, 100 F.3d 302,337-42 (3d Cir. 1996). And that the naturalized citizen did so willfully. Us. v. Arango, 670 F.3d 988,994-95 (9th Cir. 2012) [existence of possible agreement with government to discount prior marriage fraud raised issue of fact as to whether any misrepresentation was willful]. If the government establishes materiality, the respondent may rebut the presumption of denaturalization by demonstrating that he nevertheless met the statutory requirements. Kungys, 485 U.S. at 777; Monter v. Gonzales, 430 F.3d 546, 554 (2d Cir. 2005) [applying Kungys test to material misrepresentation in I-751 and reversing removal where respondent was denied the opportunity to overcome the presumption]. See also US. v. Rebelo, 646 F.Supp.2d 682 (D.N.I. 2009) [granting denaturalization for material misrepresentation for not disclosing the nature of charges and eventual conviction, and for wrongful procurement where applicant was naturalized while still on probation]; Us. v. Mahalia, 545 F.Supp.2d 1035, 1041-44 (CD. Cal. 2008) [summary judgment granted to U.S. on material misrepresentation and illegal procurement where person naturalized on basis of living with United States citizen spouse in marital union was not living with his spouse]; US. v. Nunez-Garcia. 262 F.Supp.2d 1073, 1084-85 (C.D. Cal. 2003) [rejecting defendant's claim that he told the notary the correct information where defendant read and spoke English and signed document]; US. v. Damrah, 412 FJd 618, 625-28 (6th Cir. 2005) [upholding conviction under 1425(a) and (b) and automatic denaturalization under 1451 (e) of Moslem cleric who was a member of and assisted organizations that persecuted others]; US. v. Ekpin, 214 F.Supp.2d 707, 715-17 (S.D. Tex. 2002) [misrepresentation was willful and material where applicant answered "no" to whether he had committed a crime for which he had not been arrested and he sexually abused his daughter during the 5-year Good Moral Character period].
    3. Illegal Procurement-INA §340(a), 8 U.S.C. §1451(a). In Fedorenko v. US., 449 U.S. 490 (1981), the Court addressed the meaning of "illegally procured" under INA §340(a) and determined that because naturalization under INA §§316(a), 318;8 U.S.C. §§1427(a), 1429 requires lawful admission to the U.S., Fedorenko's citizenship was illegally procured where misrepresentations on his application for admission rendered his admission unlawful. Therefore, under Fedorenko, denaturalization based on illegal procurement may be based on misconduct not arising out of the naturalization application. Accord. Intenji v. USCIS, 737 F.3d 311 (4th Cir. 2013) [where respondent failed to reveal prior husband in an employment based AOS and there was no finding of a violation of INA 212(a)(6)(C)(i) her LPR status was invalid for purposes of naturalization because 8 C.F.R. § 103.2(a)(2) requires an applicant to certify that all information on an application is true and correct]; US. v. Geiser, 527 F.3d 288 (3d Cir. 2008) [upholding illegal procurement finding because under the plain meaning of the Refugee Relief Act of 1953, a concentration camp guard "personally" assisted in the "persecution" of others]; US. v. Firishchak, 468 F.3d 1015, 1025 (7th Cir. 2006) [memjoer of Ukrainian Auxiliary Police illegally procured citizenship even ifhe was not personally involved in Nazi atrocities]; US. v. Wittje, 422 F.3d 479 (7th Cir. 2005) [rejecting equal protection argument against denaturalization and involuntary argument against DPA]; US. v. Friedrich, 402 F.3d 842 (8th Cir. 2005) [working as a guard at Nazi concentration camp was sufficient to establish; assisting in persecution for purposes of illegal procurement]; US. v. Demjanjuk, 367 F.3d 623, 636-37 (6th Cir. 2004) [voluntarily providing assistance in persecution is not an element for illegal procurement of residency through the DPA]; US. v. Reimer, 356 F.3d 456 (2d Cir. 2004) [person who assisted Nazis in the persecution of Jews illegally procured citizenship]; US. v. Dailide, 316 F.3d 611, 618 (6th. Cir. 2003) [revoking citizenship of former member of Lithuanian special unit that persecuted Jews during WWII based on illegal procurement]; US. v. Rebelo, 646 F.Supp.2d 682, 692-96 (D.N.J. 2009) [granting denaturalization under wrongful procurement where applicant was naturalized while still on probation in violation of 8 C.F.R. §316.10(c)(I)]; Us. v. Mahalia, 545 F.Supp.2d 1035, 1040-41 (C.D. Cal. 2008) [summary judgment granted to U.S. on illegal procurement and material misrepresentation where person naturalized on basis of living with USC spouse in marital union was not living with spouse]; US. v. Nunez-Garcia, 262 F.Supp.2d 1073, 1081-83 (C.D. Cal. 2003) [person who committed aggravated felony prior to the 5-year period and a CIMT (crime involving moral turpitude) for lewd conduct in public during the 5-year period illegally procured citizenship]; us, v. Samaei, 260 F.Supp.2d 1223 (M.D. Fla. 2003) [person who committed second petty theft before swearing-in ceremony but after interview illegally procured citizenship because he lacked GMC]. Illegal procurement has been extended to encompass illegal acts reflecting on a person's GMC which arose before naturalization, but for which the person was not arrested, charged or convicted until after he became a citizen. u.s. v. Suarez, 664 F.3d 655 (7th Cir. 2011) [followed Jean-Baptiste and found that naturalization could be revoked for illegal procurement where person charged after he became a U.S.C. for unlawful acts (possession with intent to distribute drugs) committed before he naturalized]; U.S. v. Dang, 488 F.3d 1135 (9th Cir. 2007) [rejecting ultra vires. void-for-vagueness, overbreadth, and Uniformity Clause challenges to GMC regulation at 8 C.F.R. §316.IO(b)(3)(iii) in the context of denaturalization for illegal procurement where petitioner committed crimes of arson, willful injury to a child and others prior to naturalization]; US. v. Jean-Baptiste, 395 F.3d 1190 (lith Cir. 2005) [denaturalizing a person who had a minor role in one incident of cocaine trafficking but was not arrested, charged, or indicted until after he became a citizen]; US. v. Mwalumba. 688 F.Supp.2d 565 (N.D. Tex. 201 O) [followed Jean-Baptiste and rejected plea agreement stating no further prosecution was a bar to denaturalization proceeding]; US. v. Lekarczyk. 354 F.Supp.2d 883 (W.O. Wis. 2005) [following Jean-Baptiste where bank fraud. forgery-uttering and bail jumping all occurred before but were not charged until after citizenship obtained]; Us. v. Ekpin, 214 F.Supp.2d 707, 713-15 (S.D. Tex. 2002) [illegal procurement sustained where applicant admitted to committing aggravated felony during statutory period but conviction was subsequent to naturalization]. A conviction under 18 U.S.C. §1425 for knowingly procuring naturalization in violation of law is a grounds for automatic denaturalization. INA §340(e), 8 U.S.C. §1451(e). However, if there was an agreement that the government would' not take any action to prevent naturalization despite prior fraudulent conduct, such agreement may bar an illegal procurement charge. US. E Arango, 670 F.3d 988,993-94 (9th Cir. 2012) [existence of possible cooperation agreement with government not to consider prior marriage fraud when petitioner sought naturalization may bar illegal procurement claim].
    4. Subversive Activities-INA §340(a), 8 U.S.C. § 1451(a). Refusing to testify before a congressional committee regarding pre-naturalization subversive activities not revealed: in the' application is a ground for revocation where the person has been convicted of contempt for such' refusal and where it occurs within' 10 years of naturalization.
    5. Military Service Denaturalization-Naturalization under INA §§328, 329 may be revoked if the person is dishonorably separated from the Armed Forces before serving honorably for a period or periods aggregating 5 years. Applies to citizenship granted after Nov. 24, 2003.


    • (1) through court proceedings;
    • (2) through administrative proceedings; or
    • (3) as a result of a criminal conviction for knowingly procuring naturalization by fraud under 18 U.S.C. §1425, where the judge strips the person of citizenship.
    1. Court Proceedings-Revocation of naturalization by acourlunder INA §340(a), 8 U.S.C. §1451(a), is initiated by a U.S. Attorney in an action in a state or federal court competent to hear naturalization matters under INA §31 0, 8 U.S.C. § 1421. The basis for revocation is that the order and certificate were procured illegally or were procured by the concealment of a material fact or willful misrepresentation. Id. See, e.g., Us. v. Szehinskyj, 277 F.3d 331 (3d Cif.. 2002) [material misrepresentation is not necessary to revoke naturalization 'a's it is sufficient to demonstrate person did not qualify for the Displaced Persons' Act visa because he persecuted others]; US. v. Tittjung, 235 F.3d 330, 340-42 (7th Cir. 2000) [persecutor's ineligibility for DPA visa even without material misrepresentation renders naturalization invalid]; Us. v. Kiang, 175 F.Supp.2d 942 (E.D. Mich. 2001) [naturalization revoked because conviction for sexual misconduct under pre-1994 Michigan statute is a CIMT during Good Moral Character period]; US.v. TaI'ango-Pena, 173 F.Supp.2d 588 (E.D. Tex. 2001) [naturalization revoked where LPR status was procured by fraud because petitioner was not USC]; Us. v. Wasylyk, 162 F.Supp.2d 86, 87-89 (N.D.N.Y. 2001) [Nazi denaturalization case where LPR status illegally procured because respondent was a war criminal]. The action generally must be brought in the judicial district where the naturalized citizen resides. The government must comply with the Brady rule and provide all exculpatory evidence when denaturalization is based alleged criminal activities. Demjanjuk v. Petrovsky, 10 F.3d 338, 353 (6th Cir. 1993). At least one circuit has granted denaturalization on summary judgment. Us. v. Dailide, 227 F.3d 385, 388-90 (6th Cir. 2000). But see US. v. Singh, 94 F.Supp.2d 540 (W.O. Pa. 1999) [where naturalized USC pled guilty to a crime that antedated his application, INS was denied summary judgment because the failure to note on the naturalization application that he had committed a crime for which he was not arrested was a factual question]. 
      • l.a. Burden of Proof-The government "carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship." Fedorenko v. Us., 449 U.S. 490, 505 (198)) [quoting Costello v. Us., 365 U.S. 265, 269 (1961)]. The government must prove its case by "clear, unequivocal, and convincing" evidence that does not leave "the• issue in doubt." Id. at 505. The standard is informed by the recognition that the loss of citizenship "can haye seyere and Unsettling consequences." Id. ' 
      • l.b. Memorandum of Understanding-USC IS, OIL, and the U.S. Attorney offices have entered into, an MOU that allows OIL by "delegation and acquiescence" of the local U.S. Attorney offices to file denaturalization suits and litigate actions under 8 U.S.C. §14SI(a). USCIS will recommend whether there should be civil or criminal prosecutions and the U.S. Attorney offices will decide whether to prosecute criminally. MOU between the United States Attorney’s Offices, the Immigration and Naturalization Service and the Civil Division-Office of nunigration Litigation Regarding Actions to Revoke Naturalization, reprinted in 77 No. 30 Interpreter Releases 1130, 1144-50 (Aug. 7, 2000). 
      • l.c. Defenses to Denaturalization-Laches, waiver, statute of limitations, and 'equitable estoppel may not be defenses to denaturalization. INSv. Pangilinan, 486 U.S. 875, 883~84 (1988); Robertson-Dewar v. Holder, 646 F.3d 226,229-30 (5th Cir. 2011) [II-year delay in adjudicating natz application' was not affirmative misconduct warranting termination of deportation proceedings]; us. v. Mandycz, 447 F.3d 951, 964-66 (6th Cir. 2006) [when government acts in its sovereign capacity, laches does not apply]; us. v. Robelo, 358 F.Supp.2d 400, 407-13 (D.N.I. 2005) [general statute of limitations for penalties and forfeitures under 28 U.S.C. §2462 is inapplicable to denaturalization proceedings]; us. v. Reve, 241 F.Supp.2d 470, 478 (D.N.I. 2003) [denaturalization for material misrepresentation may not be fought through equitable defenses such as waiver, laches or estoppel]; Us. v. Koreh, 856 F.Supp. 891, 893 n.3 (D.N.I.1994). In the view of one cour1, denaturalizing an incompetent person does not violate due process. Us. v. Mandycz, supra at 961-64. Nor does a plea agreement that states the U.S. will "not further prosecute the defendant" prohibit a denaturalization proceeding US. v. Mwalumba, 688 F.Supp.2d 565, 571-76 (N.D. Tex. 2010) [government could bring denaturalization proceeding, because plea only applied to criminal matters and denaturalization is civil]. But see Us. v. Wang, 404 F.Supp.2d 1155 (N.D. Cal. 2005) [rejecting statute of limitations and laches defenses, but allowing an estoppel claim where USC asserted that government was aware of his crimes prior to naturalization. The court rejected the estoppel defense on the merits because there was no affirmative misconduct].
    2. Administrative Revocation-DRS has recognized it does not have the authority to administratively revoke naturalization and has eliminated 8 C.F.R. §340.l; 76 FR 53764, 53769, 53804. (Aug. 29, 2011). Instead, it has issued a regulation permitting it to recommend revocation pursuant to INA §340(a) to DOl. 8 C.F:R. §340.2(a).
    3. Revocation after Conviction for Naturalization Fraud-8 U.S.C. § 1451(e). If a person is convicted of knowingly procuring naturalization by fraud, the convicting court shall revoke naturalization US. v. Inocencio, 215 F.Supp.2d 1095 (D. Rawaii 2002) [no prior notice needed as revocation is automatic under §1451(e)], aff'd, US. v. Inocencio, 328 F.3d 1207 (9th Cir. 2003) [revocation of naturalization as a result of a conviction under 18 U.S.C. § 1425(b) 5 years after sentencing does not violate due process]; US. v. Damrah, 412 F.3d 618, 625-28 (6th Cir. 2005) [upholding conviction under §§1425(a) and (b) and automatic denaturalization under §1451(e) of Moslem cleric on grounds he was a member of and assisted organizations that persecuted others]; US. v. Maduno, 40'F.3d 1212, 1217 (11th Cir.1994) [filing notice of appeal of conviction does not divest the court of authority under 8 U.S.C. § 1451(e) to revoke naturalization].
    4. Effect on Family Members of Denaturalization-Denaturalization based on concealment or material misrepresentation causes any person who claimed citizenship through the denaturalized parent or spouse to lose their citizenship. INA §340(d), 8 U.S.C. § 1451(d);
    5. Cancellation of Certificate. The AG may cancel a certificate of citizenship when the document was obtained illegally or fraudulently. Cancellation of the document does not affect the citizenship of the person. INA §342, 8 U.S.C. §1453.


    1. Generally-Pursuant to INA §349(a), 8 U.S.C. § 1481(a), a native born or naturalized USC may lose citizenship by voluntarily performing any of the following acts with the intention of relinquishing citizenship:
      • Obtaining naturalization in of taking an oath of allegiance to a foreign state after age 18;
      • Entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving in any foreign army as a commissioned or noncommissioned officer;
      • Accepting, serving in or performing duties of any office, post or, employment of a foreign government;
      • Making a formal renunciation of U.S. citizenship before a diplomatic or consular officer on a DOS form. However, a parent or guardian cannot renounce or relinquish U.S. citizenship of a child who acquired U.S. citizenship at birth. 7 FAM 1292(e).  And a national, who within 6 months after attaining the age of 18 asserts his or her claim to U.S. nationality shall not be deemed to have lost U.S. nationality by the commission of certain acts.
      • Making a formal written renunciation in the United States but only when the U.S, is in a state of war; Kauftnan v, Holder, 524 P.3d 1334 (D,C; CiT. 2008); Kauftnanv, Holder, 686 P,Supp,2d 40 (D,D,C; 2010) [finding term "state of war" unambignous and that U,S, was in state of war regarding terrorism when' petitioner applied, case remanded to USCIS], Cj Walker v, Holder, 714 P,Supp,2d 44 (D,D,C, 2010) [dismissed mandamus for failure to plead that he applied to Homeland Security or DOJ to renounce and was denied]. See also Schnitzler v. U.S., 863 F.Supp.2d 1 (D.D.C. 2012) [mandamus moot and no Article III standing for declaratory relief where prisoner requested renunciation and USCIS stated it would hold his application in abeyance until he was released]. But see Shuss v. USCIS, 899 F.Supp.2d 37, 41-42 (D.D.C. 2012) [finding INA § 349(a)(6) bars issuing a CLN while person is incarcerated in the U.S. without addressing Kaufman].
      • Committing an act of treason against, or attempting by force to overthrow, or bearing arms against the U.S.
    2. Burden of Proof-INA §349(b), 8 U.S.C; §1481(b), The burden of demonstrating loss of citizenship is on the U.S. by a preponderance of the evidence" Moreover, the expatriating acts listed in INA §349(a) are presumed to be voluntary, but such presumption may be rebutted,
    3. Relinquishment Voluntary and Intentional-Naturalization lawfully obtained cannot be lost without a determination by DOS under INA §358 that citizenship was voluntarily relinquished, Afroyim v, Rusk, 387 U,S, 253 (1967) [statute expatriating USC due to voting in foreign election violates the Pour1eenth AmendIllent], Expatriation is constitutionally permissible only where the government proves that a party voluntarily engaged in the expatriating act and intended to relinquish citizenship, Vance v, Terrazas, 444 U,S, 252 (1980); Breyer v, Ashcroft,350 P.3d 327 (3d Cir, 2003) [continued military service in the Waffen SS after age 18 did not, under the totality of the circumstances, demonstrate intent to relinquish citizenship]; Action SA, v, Marc Rich & Co" Inc" 951 P.2d 504, 506-07 (2d Cir, 1991); US v' Schiffer, 831 P,Supp, 1166, I J 86-96 (E.D, Pa, 1993) [citizenship relinquished by serving in. Romanian Army and Nazi SS], Compare Kashani v, Shultz, 653 P,Supp, 1486 (E.D,N,Y, 1987) [citizenship not relinquished by taking seat in foreign parliament without evidence of intent to relinquish] with Kahani v, Secy, of State, 700 P'supp, 1162 (D,D,c' 1988) [relinquishment found where renunciation made at U.S. consulate],
    4. Presumption Against Expatriation-In Matter of Kekich, 19 I&N Dec, 198 (BrA 1984), the BIA read Terrazas as pennitting the government to satisfy its burden, in light of the statute's presumption of voluntariness, by demonstrating by a preponderance of the evidence under INA §349(b) that the USC committed one of the intentional expatriating acts enunciated in INA §349(a), However, under DOS regnlations, 22 c'F,R, §50AO(a)-(b), a presumption against expatriation applies to cases where a person is:
      • Naturalized in a foreign country;
      • Takes a routine oath of allegiance; or
      • Accepts non-policy level employment with a foreign government. See Fox v, Clinton, 751 F'supp,2d 122 (D,D,c' 2010) [USC did not expatriate by naturalizing through the Law of Return in Israel and taking an oath that was not required for naturalization instead of formally renouncing before a U,S, consular officer abroad],Cf. Fox v. Clinton, 684 F.3d 67, 75 (D.C. Cir. 2012) [finding expatriation where USC naturalized in Israel under the “Law of Return”]. The presumption is applicable retroactively to cases previously denied, However, the presumption is not applicable where someone;
      • Formally renounces U.S. citizenship before a consular officer;
      • Takes a policy level position in a foreign state; • Is convicted of treason; or
      • Performs an act made potentially expatriating by statute accompanied by conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that the individual intended to relinquish U.S. citizenship. Statement about possible loss of U.S. citizenship and dual nationality, DOS, reprinted in 67 No. 37 Interpreter Releases 1092 (Oct. 1, 1990). See generally Office of Legal Counsel, DOJ, Survey of the Law of Expatriation (June 12, 2002), www.usdoj.gov/olc/opiniondocs/expatriation.pdf. See also Matter of CMS, Decision No. 90-12 (Board of Appellate Review July 5, 1990), reported in 67 No. 27 Interpreter Releases 799-800 (July 23, 1990).
    5. Certificate of Loss of Nationality (CLN)—Before a consular officer may issue a CLN she must follow 20 C.F.R. §§ 50.40, 50.50 and 7 FAM 1293 and be assured that the person has the requisite intent and mental capacity to renounce his citizenship. See e.g. Weber v. DOS, 885 F.Supp.2d 46 (D.D.C. 2012) [mandamus and APA under “unreasonably withheld” provision denied where DOS refused to issue CLN because it is not a nondiscretionary decision].
    6. Loss of Citizenship and LPR Status—Costello v. INS, 376 U.S: 120 (1964) [denaturalized USC cannot be deported for 2 ClMTs when he was convicted of the crimes while he was a USC]; Matter of Vielma-Ortiz, 11 I&N Dec. 414 (BlA 1965) [loss of citizenship does not result in automatic loss of LPR status]; 8 C.F.R. § 340.1(g)(4) [a person remains a USC until a decision to reopen proceedings and deny naturalization becomes final]; U.S., v. Clarke, 628 F.Supp.2d 1, 8-9 (D.D.C. 2009) [cannot void citizenship without a final order pursuant to 8 U.S.C. § 1451]. But see Matter of Gonzalez-Muro, 24 I&N Dec. 472 (BIA 2008) [reaffirming Matter of Rossi, 11 I&N Dec. 514 (BlA 1966), distinguishing Costello, and finding that respondent could be removed for crimes he was convicted of while a USC, because he committed the crimes as an LPR, had citizenship revoked because he committed the crimes before naturalization, and obtained citizenship by concealing the activity].