The US Department of Justice (DOJ) announced this week that it has opened a division dedicated to denaturalisation – the process of revoking US citizenship from someone who was not born in the country.
More than 20 million US citizens are naturalised, and there has been confusion over how the newly created “Denaturalisation Section” could affect foreign-born American citizens.
Stripping citizenship remains rare occurrence, and the department has emphasised the new team will target serious criminals.
But critics have expressed concerns over the rise in denaturalisation cases brought by the Trump administration. According to the Open Society Justice Initiative, the average civil denaturalisation filing rate for the last eight presidencies was 12 per year – under President Donald Trump, that has risen to nearly 30 per year.
Should naturalised citizens be worried about the DOJ’s denaturalisation efforts?
What will the ‘Denaturalisation Section’ do?
According to the DOJ, the newly minted Denaturalisation Section will investigate and argue cases.
The department says the section was created due to an anticipated increase in the number of denaturalisation referrals from law enforcement agencies.
The team will target terrorists, war criminals, sex offenders, and “other fraudsters”, the DOJ said.
Assistant Attorney General Jody Hunt said allowing these criminals to unlawfully remain citizens “is an affront to our system”.
The division will target people suspected of unlawfully obtaining citizenship and “ensure that they are held accountable for their fraudulent conduct,” Mr Hunt said.
Immigration lawyer Allen Orr told the BBC this was already being handled within the DOJ before. This new section is mostly for optics, in Mr Orr’s view.
Is there precedent for this?
Denaturalisation certainly precedes the Trump administration.
The US government has revoked citizenship many times from the 20th century onwards for various reasons, according to Patrick Weil, a visiting professor at Yale University Law School.
During World War Two, there was a similar office in the DOJ focused on targeting pro-Nazi or fascist Americans who had naturalised.
Decades later, an office of special investigations was created to investigate Americans who had not disclosed Nazi ties. The office, created in 1979, brought cases against some 150 individuals.
In 2004, that office expanded to include naturalised citizens who participated in genocide or similar crimes anywhere in the world, said Mr Weil.
How do you naturalise?
Briefly, here’s what residents seeking citizenship must do:
- Have a lawful permanent resident card (“green card”)
- Prove you have lived in the US continuously for at least five years
- Be able to speak, read and write basic English
- Prove a basic understanding of US history and civics (there is a test)
- Register for the Selective Service if you are a man between age 18 and 26
- Pay a $640 filing fee
The actual application for naturalisation is 20 pages long, featuring questions about days spent outside the US in the last five years, selling weapons, being a “habitual drunkard”, admittance into a mental institution, and associations – indirect or direct – with communists, terrorists and Nazis.
It ends with an oath of allegiance – to “absolutely and entirely renounce” all other national ties.
Should naturalised citizens be concerned?
“The Trump administration will say if you haven’t done anything wrong, you shouldn’t be afraid,” says Mr Orr.
But though the department says it is looking at serious criminals, Mr Orr says there is a lot of room for interpretation. “They expressed they’re going to review cases referred to them – referred how and why? Is it random?”
Mr Orr told the BBC he believes the department may be looking more closely at naturalised Americans from Muslim-majority countries, people of colour, and men, even if they have already cleared the process.
He says new technology and the recent digitising of records could allow for more extensive case review than years prior, and there is no statute of limitations for denaturalisation.
How does denaturalisation work?
That said, even if the federal government brings more denaturalisation cases to court, it does not mean they will go through.
“The courts have been very protective of American citizenship,” says Prof Weil.
He points to a Supreme Court decision in June 2017, where the justices unanimously ruled that the government must establish that a crime played a role in the acquisition of citizenship.
As Justice Elena Kagan wrote: “We have never read a statute to strip citizenship from someone who met the legal criteria for acquiring it.”
It does not concern crimes committed post-citizenship.
“So, for example, if you lied about your date of birth – that’s not going to be a reason to denaturalise you because your date of birth would not have prevented you to be naturalised,” Prof Weil says.
What does the focus on denaturalisation say about US citizenship?
The move certainly fits within the Trump administration’s increased focus on “fixing” the US immigration system.
Prof Weil adds that this announcement seems to be a method of courting voters in an election year, as Mr Trump’s base is “charmed that he is acting very strongly against people who shouldn’t be ‘American’.”
It also brings up the recurring cultural issues around a hierarchy of citizenship: Are naturalised Americans somehow different from born-Americans?
“Are you ever really naturalised?” asks Mr Orr. Most Americans are descendants of immigrants, but naturalised Americans who commit crimes are often linked back to their birthplace, he points out.
“Why is that part of the conversation when it is not one of the parts of the crime?”
“They do it to tell you its a foreign threat that did this, not a US citizen,” Mr Orr says. “It’s more divisive language: you never really get to be American.”
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