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Supreme Court Limits Citizenship Stripping

The current Application for Naturalization (N-400) form contains 20 pages of questions, requiring applicants to provide detailed information on years of work, study, residence, and travel. Applicants and Petitioners must be prepared to answer dozens of questions and must affirm under penalties of perjury the completeness and truthfulness of information provided.

The penalties for misrepresentation run very high and can include criminal charges. But criminal prosecutions can lead to convictions only when the Government establishes guilt beyond a reasonable doubt and must take place within the time limits established by statutes of limitations, so that a potential accused need not live in a state of permanent apprehension.

Yet the Government may seek a civil penalty that can be even more onerous for some than criminal charges. It is denaturalization or loss of citizenship, which is inevitably followed by deportation.

The Government argued that any misrepresentation in any application for an immigration benefit, even if the individual was otherwise eligible, could be sufficient grounds for revoking naturalized citizenship. Today in a 9-0 decision in the case of Maslenjak v. United States, the Supreme Court put in place a different standard.

Now, the Government must establish by "clear, unequivocal, and convincing evidence, which does not leave the issue in doubt" (Schneiderman v. United States) that either 1) the misrepresented facts are themselves legally disqualifying for citizenship, or 2) the misrepresented facts would have prompted reasonable officials seeking only evidence concerning citizenship qualifications to undertake further investigation and such an investigation would predictably have disclosed some legal disqualification.

This higher burden of proof will have a limiting effect on the number of denaturalization cases brought by the Government. Yet, it is not likely to avail the petitioner Maslenjak, who the record shows misrepresented in her citizenship application facts concerning her husband's military service in a brigade that participated in the Srebrenica massacre—a slaughter of some 8,000 Bosnian civilians. Yet, the Government will be required to prove on remand that a reasonable immigration official who knew the facts and properly applied the law would have denied her petition.

Because the action for citizenship stripping is considered a civil matter, the defendants are not entitled to the services of a public defender. There is also no present time limit, so a naturalized citizen can be stripped of citizenship many years or even decades after the citizenship was obtained.

The decision in Maslenjak notwithstanding, it is not likely that the SCOTUS may see fit to require a statute of limitations on denaturalization actions. Though the SCOTUS has long held that denaturalization proceedings are more closely related to criminal matters than civil due to the grave nature of the consequences that result if the Government prevails, the Court declined to hear a case on point as recently as in 2015 (15-534 Li, Hongyan v. United States).

Are you a naturalized citizen concerned that you may lose your citizenship due to a criminal conviction or a guilty plea deal? Are you applying for an immigration benefit and need advice on how to proceed? Do you think you may have made a prior misrepresentation and need to correct it before it's too late? Contact the Law Office of David Mitchell, Esq. for a free, no obligation consultation.