By Can Foreign-Born Citizens Be Denaturalized for Post-Naturalization Behavior and Beliefs?
By George Fishman, Center for Immigration Studies
It is a Trump administration civil law enforcement priority to “prioritize and maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence”. There has been significant recent discussion of the possible denaturalization of naturalized immigrants involved in terrorism, welfare fraud, or other crimes. This paper examines whether and under what circumstances a naturalized citizen might be stripped of citizenship for actions or statements that occur after he or she has become a U.S. citizen.
The Constitution grants Congress alone the authority to prescribe rules for naturalization. Federal law has long required that to become a naturalized citizen, a lawful permanent resident must be “a person of good moral character, attached to the principles of the Constitution of the United States, and well-disposed to the good order and happiness of the United States” and must take an oath to support and defend the Constitution and renounce all allegiance and fidelity to their prior country of citizenship.
The Supreme Court has explained that “[c]itizenship obtained through naturalization is not a second-class citizenship” but “carries with it the privilege of full participation in the affairs of our society”. It has concluded that “once citizenship has been acquired, its loss can have severe and unsettling consequences”, and the government “carries a heavy burden of proof” in a denaturalization proceeding.
However, at the same time the Court made clear that “there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship” and “Failure to comply with any of these … renders … citizenship ‘illegally procured,’ and naturalization that is unlawfully procured can be set aside.” Denaturalization does not constitute punishment. It is, rather, as a federal court has put it, an “undoing of that which should not have been done in the first place”.
Under federal law, the federal government can seek to denaturalize, or revoke the citizenship, of those who illegally procured naturalization or procured it by concealment of a material fact or by willful misrepresentation.
The Supreme Court has ruled that in a denaturalization proceeding, in order to prove that a citizen lacked attachment to the Constitution at the time of naturalization, the government must provide “‘clear, unequivocal, and convincing’ evidence which does not leave the issue in doubt”. However, the Court has seemingly indicated that Congress would have the power to substitute a lower standard of proof.
It is fair to conclude that under the Constitution, naturalization may only be revoked where it was illegally procured. So, to what extent, if any, can the government revoke naturalization based on behavior engaged in or beliefs expressed post-naturalization?
As one federal court has concluded, post-naturalization behavior and beliefs “can at best rise only to the level of evidential facts” as to a citizen’s behavior and beliefs at the time of naturalization. While the Supreme Court has expressed dubiousness as to the “logical validity” of the “presumption that disqualifying views expressed after naturalization [are] accurate representations of [a citizen’s] views when he took the oath”, the Court has “not h[e]ld that evidence of subsequent acts would as a matter of law be insufficient proof of an earlier fraudulent intent”, as one federal court has put it.
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