UNMAKING AMERICANS INSECURE CITIZENSHIP IN THE UNITED STATES INSECURE CITIZENSHIP IN THE UNITED STATEs 1 ACKNOWLEDGMENTS The lead author of this report is Laura Bingham, senior managing legal officer of the Open Society Justice Initiative. The report was co-authored by Natasha Arnpriester, a Justice Initiative Aryeh Neier Fellow, without whose outstanding contributions, including extensive research and data analysis on denaturalizations, the report would not have been possible. The report was edited by David Berry and James A. Goldston. Many others have contributed to the report from within and outside the organization. Special thanks to the many colleagues from the Open Society Foundations who have guided the development and drafting of the report, in particular: Brooke Havlik, Angela Kelley, Wendy Patten, Maggie Soladay, Betsy Apple, Erika Dailey, Robert O. Varenik, Michèle Eken, and Laura Lázaro Cabrera. Deepest thanks to all those who dedicated their time and shared their personal histories and professional experience in order to inform the report, with the hope that it does justice to their contributions. We are likewise grateful for the pro bono research assistance provided by attorneys from a number of law firms including White & Case, LLP, Akin Gump Strauss Hauer & Feld LLP, and Davis Wright Tremaine LLP. For more information contact: Laura Bingham Senior Managing Legal Officer Open Society Justice Initiative [email protected] 2 UNMAKING AMERICANS © 2019 Open Society Foundations This publication is available as a PDF on the Open Society Foundations website under a Creative Commons license that allows copying and distributing the publication, only in its entirety, as long as it is attributed to the Open Society Foundations and used for noncommercial educational or public policy purposes. Photographs may not be used separately from the publication. Photo credits: Cover © Mario Tama/Getty Page 19 © Lucy Nicholson/Reuters/Newscom Page 42 © Drew Angerer/Getty Pages 114, 131, 133, 135, 153 © Griselda San Martin for the Open Society Foundations Design and layout: Ellery Studio, Berlin ACKNOWLEDGMENTs 3 TABLE OF CONTENTS EXECUTIVE SUMMARY 6 Three Intersecting Modes of Citizenship Deprivation 7 Denaturalization 8 Denial and Revocation of Documentation of U.S. Citizenship 9 Political Attacks on Citizenship by Birth in the United States 9 Key Findings 10 Recommendations 14 To the U.S. Congress 14 To the U.S. Department of Homeland Security 16 To the U.S. Department of Justice 16 To the U.S. Department of State 16 Description of Research 17 I. HISTORY AND CONTEXT 19 Introduction 19 Citizenship and Its Deprivation in the United States: A Brief History 20 The United States in Comparative Perspective: Nationality and Human Rights 27 Comparative Case Studies 35 Conclusion 40 II. DENATURALIZATION: A RADICAL MEASURE IN THE HANDS OF ZEALOTS 42 Introduction 42 Denaturalization Data at a Glance 45 The Denaturalization Statutes 48 How Did We Get Here? History and Bureaucracy of Denaturalization 59 Denaturalization under the Trump Administration 70 Statelessness 76 Denaturalization Threatens Constitutional Rights 85 Excerpts from Plea & Settlement Agreements 108 Conclusion 112 4 UNMAKING AMERICANS III. DENIAL AND REVOCATION OF DOCUMENTATION OF U.S. CITIZENSHIP 114 Introduction 114 The Burdens of Proof: A Brief History of Documenting United States Citizens 116 Yemeni-Americans 120 The U.S. Southern Border 124 Proving U.S. Citizenship: Anatomy of a Case 137 Constitutional Rights 149 Conclusion 151 IV. POLITICAL ATTACKS ON CITIZENSHIP BY BIRTH IN THE UNITED STATES 153 Background: Jus Soli Citizenship in the United States 153 The American Political Community 154 Impact: What We Stand to Lose 158 Conclusion 160 CONCLUSION: THE THIN END OF THE WEDGE 161 ENDNOTES 162 TABLE OF CONTENTs 5 EXECUTIVE SUMMARY Citizenship is essential to the realization of basic human rights. While rights are understood to be universal, as a practical matter they often require citizenship and the state protection that comes with it to be enjoyed. Although international law and the U.S. Constitution grant non-citizens substantial legal protection, without citizenship, rights such as freedom of movement can be restricted; without citizenship, it can be very difficult for people to access healthcare, education, and housing. Given the critical importance of citizenship, it is surprising that U.S. citizenship law and practice are riddled with gaps, weaknesses, and opportunities for arbitrary decision-making. Under the administration of President Donald Trump, those gaps and weaknesses have been freshly exposed and exploited to deny or deprive citizenship from certain people in a context of overt racial and religious animus, as part of a broader effort to fundamentally redefine the meaning of U.S. citizenship. If left unchecked, the insecurity of citizenship will continue to increase. The power to take away or deny citizenship creates a gaping and unresolved loophole in the protection of human rights. It also creates dilemmas for those who seek to enforce human rights. On one hand, the sanctity and security of citizenship on an equal and non-discrimina- tory basis should be protected. But on the other, the desirability of secure citizenship must not be exploited as a way to deprive non-citizens of the full complement of human rights. Citizenship is inherently political in any society and acutely so in democratic societies in which citizens have a share in the establishment of government. Throughout history, citizenship, including the denial and revocation of citizenship, has been manipulated for political ends. At its most extreme, the effort to take away citizenship results in statelessness, a condition that renders people literally without a place to go, without the state protection that ensures rights in practice, and often without any means to challenge their condition. Sadly, there is a long history of governments using the revocation of citizenship as a weapon. From the Nazis revoking the citizenship of Jews to the Dominican Republic’s more recent assaults on the citizenship of Dominicans of Haitian descent, governments have used this tactic against racial, ethnic, and religious minorities; political opponents; and other disfavored groups, often as a prelude to mass arrests, expulsions, and executions. Today, the Trump administration appears willing to follow in these footsteps, and the American public appears increasingly content to acquiesce. 6 UNMAKING AMERICANS In the United States, citizenship is welded to the Constitution, and elaborated in nationality and immigration law and regulations.1 Citizenship is also constructed through a deeply rooted founding narrative—alive today—that the citizenry is united by ideals such as freedom, equality, and inalienable rights, rather than through heredity or ethnicity. Much can be learned from the study of how Americans become non-citizens in the eyes of the law, as the law itself serves as a deeply coded reflection of the national consciousness of any era. American ideals concerning citizenship have not always been reflected in practice. The country’s history shows that, when nativist movements have surged, citizenship law has been amended to the detriment of vulnerable groups. Examples abound, including the Naturalization Act of 1906 and the National Origin Act of 1924, of the U.S. government manipulating citizenship in discriminatory ways. These dynamics form the backdrop for the current U.S. administration’s xenophobic and nativist platform. This report focuses on one component of that larger enterprise, examining the systematic deployment of state powers over citizenship—including deprivation of nationa- lity, deportation, exclusion, and exile—to attack racial and ethnic minorities, immigrants, and other members of marginalized groups, and to normalize their inhuman treatment. Three Intersecting Modes of Citizenship Deprivation This report is divided into four main chapters. The first reviews the history of citizenship and its deprivation in the U.S., and examines how U.S. citizenship laws and practices compare to those of selected other countries. The second, third, and fourth chapters cover several policy areas that govern access to citizenship in the United States, and show how weaknesses in the regime can be exploited. These chapters examine: • Denaturalization, which is the revocation of U.S. citizenship acquired by foreign nationals or formerly stateless people through naturalization. The key actors in this process are lawyers within the United States Department of Justice (DOJ) including assistant U.S. attorneys who initiate judicial denaturalization actions in federal courts. • Denial and revocation of U.S. passports, an area of practice that involves decision-making initially by the United States Department of State as to whether or not the affected individual is in fact a U.S. citizen. Those whose citizenship is contested or denied must bring affirmative litigation, which the DOJ defends on behalf of the U.S. government. • Political attacks on citizenship by birth in the United States. This includes policy proposals and surrounding rhetoric regarding the status of children born in the United States to non-citizens. EXECUTIVE SUMMARy 7 In each area, public statements, official documents, and media reports over the past two years have cited worrying actual or proposed shifts in policy that merit the in-depth study provided here. Denaturalization Since 2008, the U.S. government has undertaken