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41254-nyu_94-3 Sheet No. 46 Side B 05/14/2019 08:58:42 \\jciprod01\productn\N\NYU\94-3\NYU303.txt unknown Seq: 1 14-MAY-19 8:49 (UN)CIVIL DENATURALIZATION CASSANDRA BURKE ROBERTSON† & IRINA D. MANTA‡ Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denatu- ralization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses. Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends continue, it will continue to increase dramatically. This growth began under the Obama administra- tion, which used improved digital tools to identify potential cases of naturalization fraud from years and decades ago. The Trump administration, however, is taking denaturalization to new levels as part of its overall immigration crackdown. It has announced plans for a denaturalization task force. And it is pursuing denaturaliza- tion as a civil-litigation remedy and not just a criminal sanction—a choice that prosecutors find advantageous because civil proceedings come with a lower burden of proof, no guarantee of counsel to the defendant, and no statute of limitations. In fact, the first successful denaturalization under this program was decided on sum- mary judgment in favor of the government in 2018. The defendant was accused of having improperly filed an asylum claim twenty-five years ago, but he was never personally served with process and he never made an appearance in the case, either on his own or through counsel. Even today, it is not clear that he knows he has lost his citizenship. The legal status of denaturalization is murky, in part because the Supreme Court has long struggled to articulate a consistent view of citizenship and its prerogatives. Nonetheless, the Court has set a number of significant limits on the government’s attempts to remove citizenship at will—limits that are inconsistent with the adminis- tration’s current litigation policy. This Article argues that stripping Americans of 41254-nyu_94-3 Sheet No. 46 Side B 05/14/2019 08:58:42 citizenship through the route of civil litigation not only violates substantive and procedural due process, but also infringes on the rights guaranteed by the Citizenship Clause of the Fourteenth Amendment. Finally, (un)civil denaturaliza- tion undermines the constitutional safeguards of democracy. † Cassandra Burke Robertson is the John Deaver Drinko—BakerHostetler Professor of Law and Director of the Center for Professional Ethics at Case Western Reserve University School of Law. University of Texas School of Law, J.D.; University of Texas LBJ School of Public Affairs, M.P.Aff.; University of Texas M.A. (Middle Eastern Studies); University of Washington, B.A. ‡ Irina D. Manta is the Associate Dean for Research and Faculty Development, Professor of Law, and Founding Director of the Center for Intellectual Property Law at the Maurice A. Deane School of Law at Hofstra University; Yale Law School, J.D.; Yale College, B.A. We would like to thank Avidan Cover, Jennifer Hendricks, Dmitry Karshtedt, Jonathan Weinberg, and Gregory Dolin for sharing their thoughts and sugges- tions on this project. We are also grateful for institutional support from the Case Western Reserve University School of Law and Maurice A. Deane School of Law at Hofstra University. Copyright © 2019 by Cassandra Burke Robertson & Irina D. Manta. 402 41254-nyu_94-3 Sheet No. 47 Side A 05/14/2019 08:58:42 \\jciprod01\productn\N\NYU\94-3\NYU303.txt unknown Seq: 2 14-MAY-19 8:49 June 2019] (UN)CIVIL DENATURALIZATION 403 INTRODUCTION ................................................. 403 R I. THE RENEWED THREAT OF DENATURALIZATION . 407 R A. Recent Trends Shaping Current Denaturalization Policy ............................................... 409 R 1. Newly Digitized Data and Operation Janus . 410 R 2. Zero Tolerance ................................. 412 R B. The Two Trends Converge in Current Litigation . 414 R 1. Baljinder Singh: Newly Digitized Data . 414 R 2. Norma Borgono ˜ : Zero Tolerance and Collateral Consequences ................................... 418 R II. THE RISE AND FALL OF DENATURALIZATION POLICY . 422 R A. The Origin of Denaturalization Authority . 422 R B. Early Growth of Denaturalization . 424 R C. World Wars and the Fear of Communism . 426 R D. The Quiet Period ................................... 428 R III. THE SUPREME COURT’S LIMITS ON DENATURALIZATION .................................... 430 R A. Procedural Protection ............................... 430 R 1. Schneiderman: A Heightened Standard of Proof ........................................ 431 R 2. Baumgartner and Knauer: A More Searching Review on Appeal .............................. 433 R 3. Later Cases: Continued Questions About the Basis for Heightened Procedural Protections . 435 R B. Substantive Constitutional Protections . 439 R 1. Limiting Expatriation as Punishment . 440 R 2. Curtailing Involuntary Expatriation . 443 R 41254-nyu_94-3 Sheet No. 47 Side A 05/14/2019 08:58:42 C. A Retreat to Statutory Formalism . 445 R IV. THE PROBLEM WITH CIVIL DENATURALIZATION . 452 R A. The Procedural Due Process Deficiencies of Civil Denaturalization .................................... 454 R B. Beyond Procedure: The Constitutional Infirmities of Civil Denaturalization ............................... 460 R C. Civil Denaturalization’s Threat to Constitutional Democracy .......................................... 464 R CONCLUSION ................................................... 471 R INTRODUCTION Denaturalization is making a comeback in the United States. For half a century, denaturalization largely disappeared from American policy.1 Civil actions seeking to strip individuals’ citizenship have been 1 See infra Section II.D. 41254-nyu_94-3 Sheet No. 47 Side B 05/14/2019 08:58:42 \\jciprod01\productn\N\NYU\94-3\NYU303.txt unknown Seq: 3 14-MAY-19 8:49 404 NEW YORK UNIVERSITY LAW REVIEW [Vol. 94:402 exceedingly rare in the last fifty years. When they occurred, they were often the product of human rights groups’ efforts to identify former Nazis and war criminals who had used forged and fraudulent creden- tials to avoid accountability.2 Now, however, the government has ramped up the number of denaturalization cases it is filing. News reports detail how government officials are searching through old records, digitizing fingerprint records from decades ago, and looking for irregularities that might lead to new denaturalization actions.3 Immigration and Customs Enforcement (ICE) has requested funding to institute a task force aimed at bringing more civil and crim- inal actions against individuals who were allegedly unqualified to obtain citizenship. The program has so far identified 887 potential leads, and expects to review another 700,000 naturalized citizens’ files, to see if there are grounds for potential denaturalization.4 These additional denaturalization proceedings might seem insig- nificant given the sheer number of naturalized citizens in the country. Every year, approximately 700,000 individuals become naturalized cit- izens of the United States. There are nearly 20 million naturalized citi- zens currently residing in the United States, representing approximately 6.5% of the nation’s citizens.5 Naturalized citizens enjoy the full benefits and responsibility of U.S. citizenship, including the right to vote in state and federal elections, the right to travel with a U.S. passport, the right and duty to serve on a jury, and legal protec- tion against deportation proceedings .6 In fact, the Supreme Court has 41254-nyu_94-3 Sheet No. 47 Side B 05/14/2019 08:58:42 2 See infra Section II.C. 3 See Nick Miroff, Scanning Immigrants’ Old Fingerprints, U.S. Threatens to Strip Thousands of Citizenship, WASH. POST (June 13, 2018), https://www.washingtonpost.com/ world/national-security/scanning-immigrants-old-fingerprints-us-threatens-to-strip- thousands-of-citizenship/2018/06/13/2230d8a2-6f2e-11e8-afd5-778aca903bbe_story.html. 4 DEP’T OF HOMELAND SEC., U.S. IMMIGRATION & CUSTOMS ENF’T, OPERATIONS AND SUPPORT: FISCAL YEAR 2019 CONGRESSIONAL JUSTIFICATION 21 (2018), https:// www.dhs.gov/sites/default/files/publications/U.S.%20Immigration%20and%20Customs% 20Enforcement.pdf. 5 Ana Gonzalez-Barrera & Jens Manuel Krogs tad, Naturalization Rate Among U.S. Immigrants Up Since 2005, with India Among the Biggest Gainers, PEW RES. CTR. (Jan. 18, 2018), http://www.pewresearch.org/fact-tank/2018/01/18/naturalization-rate-among-u-s- immigrants-up-since-2005-with-india-among-the-biggest-gainers (providing the number of naturalized citizens); HENRY J. KAISER FAMILY FOUND., POPULATION DISTRIBUTION BY CITIZENSHIP STATUS, https://www.kff.org/other/state-indicator/distribution-by-citizenship- status (last visited Dec. 27, 2018) (noting that the number of United States citizens living in the fifty states is approximately 295 million as of 2017). 6 Gonzalez-Barrera & Krogs tad, supra note 5. 41254-nyu_94-3 Sheet No. 48 Side A 05/14/2019 08:58:42 \\jciprod01\productn\N\NYU\94-3\NYU303.txt unknown Seq: 4 14-MAY-19 8:49 June 2019] (UN)CIVIL DENATURALIZATION 405 said, the only difference between the rights of naturalized citizens and those
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