Government practice of revoking citizenship threatens due process guaranteed by the Constitution, according to law journal
Imagine that, one minute, you’re a naturalized United States citizen, and the next you’re not. What’s worse, naturalized citizens may not realize their citizenship has been stripped.
Sound like a dystopian nightmare? The scenario isn’t far-fetched, according to Cassandra Burke Robertson, the John Deaver Drinko – BakerHostetler Professor of Law and director of the Center for Professional Ethics at the Case Western Reserve University School of Law.
Robertson said it’s a scene commonly
playing out in predominantly Muslim communities around the country.
“Over the last 50 years,
naturalized citizens in the United States were able to feel a sense of finality
and security in their rights,” she said. “Denaturalization, wielded frequently
as a political tool in the McCarthy era, had become exceedingly rare.”
Denaturalization is the revocation of a naturalized immigrant’s U.S. citizenship by the federal government. The practice, she said, was best known as an accessory to criminal proceedings brought against former Nazis and other war criminals who entered the country under false pretenses.
“Denaturalization is no longer so rare,” Robertson said, noting that the increase began under the Obama administration, which used improved digital tools to identify potential cases of naturalization fraud from years before. “But the Trump administration, with its overall immigration crackdown, is taking denaturalization to new levels.”
Naturalization applies to those who became U.S. citizens—not native-born citizens—so only naturalized citizens can lose their citizenship involuntarily.
The initiative, known as “Operation
Janus,” which was launched in 2008 by the Department of Homeland Security, focuses
on mining data of individuals from “special interest” countries—code for Muslim
communities, Robertson said.
“The White House is pursuing
denaturalization as a civil-litigation remedy and not just a criminal sanction,”
Prosecutors find that
distinction advantageous, she said, because civil proceedings come with a lower
burden of proof, no guarantee of legal counsel to the defendant and no statute
Robertson and Irina Manta, a
law professor at Hofstra University, co-authored an article on the topic, recently
published in the New York
University Law Review.
In the article, Robertson refers
to the case of Baljinder Singh, who sought asylum in the U.S. in 1992. The government
apparently recorded his name as “Davinder” Singh, so he missed his asylum hearing—making
him technically ineligible for citizenship, she said.
The mix-up, likely the result
of a typo, didn’t come to light until 2017.
“It’s totally possible that even today, Baljinder Singh has no idea that he is no longer a citizen,” she said. “He might find out when he tries to renew a passport or go to vote.”
Robertson argues in the
article that stripping Americans like Singh of citizenship through civil
litigation “not only violates substantive and procedural due process,” but also
violates the U.S. Constitution.
What’s next? The legal status
of denaturalization remains murky, she said, in part because the Supreme Court
has struggled to consistently articulate its view of citizenship and its privileges.
Although the Court has set some limits on the government’s attempts at revoking
citizenship, Robertson believes more could be done.
“Our legal system requires
due process,” she said.