Strip immigrants of their citizenship

Denaturalization, explained: how Trump can strip immigrants of their citizenship

A new “denaturalization task force” raises questions about who really counts as American.

by Dara Lind

Norma Borgono is a 63-year-old grandmother in Miami, scrambling to make ends meet while living with a rare kidney disease. The 28 years she’s spent in the US since arriving from Peru haven’t been easy or perfect: In 2011, she pleaded guilty to conspiracy to commit mail fraud for her role in a scheme to defraud the Export-Import Bank. But she cooperated with investigators to put together the case against the author of the fraud — the owner of the company where she worked as an office manager — and was sentenced to 12 months of house arrest and another several years of parole.

Borgono thought that was that. But years later, the Trump administration is taking her back to court, and threatening to upend her life. Borgono is a naturalized US citizen, and the Trump administration is seeking to strip her of her citizenship — to denaturalize her.

As explained in a Miami Herald profile, the Department of Justice claims that because Borgono was involved in the fraud scheme before she applied for citizenship in 2007, and because she didn’t mention the fraud when she applied — even when asked to list any crimes for which she’d never been punished — her citizenship application was itself fraudulent. And now it’s seeking to take back the citizenship it claims was given under false pretenses.

The month after Borgono found out that her citizenship was in jeopardy, the Trump administration announced a related initiative targeting naturalized citizens: a “denaturalization task force.” In June, US Citizenship and Immigration Services Director L. Francis Cissna announced that he was launching a team of investigators to complete the work of “Operation Janus,” a government effort stretching back a decade to identify people who’d gotten citizenship under false identities.

The administration’s denaturalization push is working on two levels. As a policy matter, it’s relatively aggressive but not unprecedented — and constrained by law from getting too arbitrary. But for many immigrants, those legal constraints provide little comfort. The sense of vulnerability and fear the administration has been able to inspire among immigrants tends to ripple far beyond those who are directly in its sights, and this is no exception.

“The creation of the task force itself is undoing the naturalization of the more than twenty million naturalized citizens in the American population by taking away their assumption of permanence,” wrote author Masha Gessen in a widely circulated New Yorker column. “All of them — all of us — are second-class citizens now.”

Coming from an administration that often conflates being foreign-born with being foreign — and that is often accused of putting forth a vision of white Americans as “real” Americans and everyone else as suspect — an effort to strip people of the armor of citizenship can’t help but feel, to some, like more proof that the Trump administration is truly motivated by an atavistic, racist vision of “America,” and a desire to restrict the legal equality guaranteed by citizenship to “real” Americans.

1) What reasons can the US government use to take away someone’s citizenship?

To become a citizen is supposed to mark becoming fully equal as an American in the eyes of the law. Immigrants have different rights depending on their legal status, but citizenship is supposed to bestow upon you the full protection of the US Constitution: the right to vote, the right to serve in the armed forces, the right to live where you please.

Emma Goldman — an anarchist thinker who was denaturalized and deported from the US in the early 20th century — articulated this in a pamphlet called “A Woman Without a Country”: “To have a country implies, first of all, the possession of a certain guarantee of security. ... Divested of that, [citizenship] becomes sheer mockery.”

But the government does have the power to take citizenship away from those to whom it’s been granted. And the Trump administration has made it clear that it intends to use that power to identify, and denaturalize, people who it feels won their citizenship based on fraud.

The Department of Justice has the power to file a denaturalization lawsuit against a naturalized citizen under two circumstances: first, if they obtained their citizenship illegally — i.e., they didn’t actually meet the legal requirements of citizenship — or, second, if they lied about or concealed something during the citizenship process that was relevant to their case. (As you can probably guess, what counts as relevant — in legal terminology, “material” — is the source of a lot of questions about when denaturalization is appropriate.) They also have the option to charge someone criminally for fraud in naturalization.

If the government prevails in court, the immigrant reverts from being a US citizen to being a lawful permanent resident (green card holder). And green card holders can be stripped of their legal status, and deported, without a court hearing if they’re found to violate the terms of their status (for example, committing certain crimes).

So denaturalization doesn’t actually kick someone out of the country — or even automatically make them eligible to getting kicked out of the country. But it opens the door to that possibility, by stripping them of the only foolproof protection against deportation an immigrant has.

2) How common is denaturalization?

Denaturalizations have happened consistently over the past few decades — but they’re very rare. One attorney told the Associated Press in June that about 130 denaturalization suits had been filed since 1990 — about seven suits per year. The DOJ told Vox that under the Obama administration, an average of 16 denaturalization suits were filed per year.

Generally, the government doesn’t know when someone has lied to them in the past — if they were going to discover that, they probably would have discovered it at the time of the application for citizenship. And there’s no systematic effort to double-check old case files and make sure that no new information has come to light.

So large numbers of potentially denaturalizable people are only discovered when the government is specifically auditing files for that purpose. In 1997, for example, the government audited more than a million files of people who had been naturalized during a big citizenship push leading up to the 1996 election. They found nearly 5,000 cases of people who had been naturalized despite having criminal histories that should have disqualified them from citizenship.

The Immigration and Naturalization Service, based on its interpretation of a 1990 law, claimed it had the right to simply cancel those naturalizations without going to court. But after a federal judge stopped administrative denaturalizations in 2001, the DOJ’s attorneys didn’t take those 5,000 cases to court to finish the job.

Which points to another thing about denaturalization: Traditionally, the government didn’t think it was worth it to spend resources denaturalizing someone. Cases take time to put together, and denaturalizations might not be the best use of limited government resources.

More importantly, officials tended to understand that denaturalizing someone was very serious business — and so it made sense to reserve it for the most serious offenses. One former official told Vox, “Everybody has in their mind triage cases of who was worthy of denaturalization and who was not.” Not everyone who could be denaturalized necessarily deserved to be.

3) Has the government ever taken a more aggressive, hands-on approach to denaturalizations before?

Absolutely.

Smudging the line between immigrant and citizen might seem to people raised on the myth of a “nation of immigrants” like a betrayal of core American values. But that line has only really been firm for about 50 years. In the first half of the 20th century — when America thought of itself differently — the country took a much more aggressive approach to denaturalizing people. And its reasons were often (from the standpoint of 2018) unjust, racist, or vaguely authoritarian.

The political scientist Patrick Weil, who wrote a 2017 book on denaturalization during this period, found that hundreds of people a year were denaturalized during most years between 1926 and the mid-1940s — with denaturalizations reaching their peak in the years leading up to World War II. About 1,000 people were stripped of citizenship each year from 1935 to 1941. (If you’re interested in this history, Anna O. Law’s review of Weil’s book is a great summary.)

Some of these were political denaturalizations. During World War I, the government decided that engaging in radical political activity after becoming a US citizen was a “retroactive indication of disloyalty” when the person was naturalized — rendering their naturalization fraudulent. Emma Goldman was denaturalized and deported during this period, for espousing pacifism in wartime.

In 1941, naturalization law was explicitly changed to allow for denaturalization for post-naturalization political activity — a provision that was used to denaturalize German Americans organizing for the Bund, a pro-Nazi group. Simply being a member of the Communist Party at the time of naturalization was enough to have citizenship revoked.

But people were also denaturalized for moving abroad within five years of naturalization, voting in foreign elections, or serving in foreign armed forces. And those people weren’t just naturalized citizens; they were native-born citizens as well. For a time, women born in the US were stripped of citizenship for marrying men who were not US citizens. And because naturalization was explicitly limited to white immigrants until 1940 (and not made fully race-neutral until 1952), some Indian immigrants were denaturalized after it was determined they were not in fact white.

The stripping of citizenship from native-born US citizens ended at the same time that denaturalization of naturalized citizens was sharply curtailed: with a 1967 Supreme Court opinion in the case Afroyim v. Rusk that reversed the denaturalization of a Polish-born man who had become a US citizen and then registered to vote in Israel.

With the 1967 case, the Court ruled that individual citizens — not the state — had sovereignty over their citizenship. What that meant was that citizenship was not considered a privilege that could be revoked for misbehavior, or even behavior considered “un-American.” The only valid reason left to revoke people’s citizenship was if they shouldn’t have been granted that citizenship to begin with: if they were not in fact qualified to become a citizen when their application was approved, or if they lied their way into citizenship.

4) What is the “denaturalization task force” being assembled now?

The denaturalization task force that USCIS is assembling now is the next phase of something that, under the Obama administration, was called “Operation Janus” — and that stretches all the way back to the Bush era.

In 2008, a Customs and Border Protection agent discovered that more than 200 people from four countries had become US citizens despite having past deportation orders — something that should have, legally, disqualified them from naturalization — because the deportation order was under one name and identity and the citizenship had been granted to another. The identity fraud hadn’t been caught because the fraudsters’ fingerprints hadn’t been digitized, and so they hadn’t turned up matches in an existing DHS database.

DHS subsequently launched a task force to figure out just how many fingerprint records it was missing from people who should be barred from citizenship. In 2011, it calculated that the answer was 315,000: people who’d been convicted of crimes or were fugitives, or who had been ordered deported from the US since 1990. About half of the 315,000 print sets ultimately got digitized, but the department ran out of money before it could finish the job.

This does not mean that there are hundreds of thousands of fraudulently naturalized citizens out there. It just means that any one set of missing fingerprints might theoretically match to someone who had become naturalized under a different identity.

In late 2016, the government started accelerating its Operation Janus efforts again. In September 2017, the DOJ filed its first three civil denaturalization suits under Operation Janus. (The first successful denaturalization order under the operation was issued in January.)

In June 2018, the director of USCIS, Cissna, announced that he was hiring a team of attorneys for a separate office in California for the purpose of investigating the remaining Operation Janus cases and making the necessary referrals to the Department of Justice for prosecution.

“We finally have a process in place to get to the bottom of all these bad cases and start denaturalizing people who should not have been naturalized in the first place,” Cissna told the Associated Press at the time.

5) Is Trump changing the standards for denaturalization?

Cissna made it clear that the purpose of the task force isn’t to look through past naturalization applications for any evidence of fraud; it’s supposed to be limited to figuring out whether those 315,000 missing fingerprint records that Janus unearthed correspond to anyone who has since been naturalized.

If USCIS sticks to that mandate, the only people targeted will be people who were naturalized under a different identity (since otherwise, their final orders or criminal records would have been found when they applied for citizenship under their real names). Cissna told the AP, “What we’re looking at, when you boil it all down, is potentially a few thousand cases.”

But that’s just the first part of the process: whom DHS is investigating. There’s also the second part: whom the Department of Justice is actually hauling into court.

Under the Obama administration, according to officials who were there, the targets of denaturalization investigations were usually human rights and national security cases — cases in which someone hadn’t just lied to the government on a naturalization application but had covered up involvement in war crimes or donations the US would consider “material support for terrorism.”

But toward the end of the Obama administration, and going into the Trump administration, the government started filing denaturalization suits against people who’d committed other crimes that hadn’t been included on their naturalization applications.

It started with people who had been convicted of sex crimes against children — unsympathetic cases to most Americans, and people who, if they’d included the crimes on their citizenship applications, might well have gotten rejected for not having the “moral character” to become US citizens. In 2015, the government filed to denaturalize a man who’d failed to disclose a conviction for aggregated sexual assault of a child when he applied for citizenship in 1996. (The administration won the case in 2017.)

In November 2017, the government went a step further: It sued to denaturalize five men who had each been convicted of sexual crimes against children after they had been naturalized — because those convictions had included criminal activity stretching back before their naturalizations. And now it’s using the same logic to go after Norma Borgono (as well as the owner of the company where Borgono worked, who’s accused of masterminding the scheme).

Borgono’s family says that if she’d known during her criminal trial that a conviction might put her at risk of losing her US citizenship, she would have fought the conviction. That opens the awkward possibility that she might have won an acquittal — or been convicted of a lesser charge that might not have included information about things she did, or knew about, before becoming a US citizen.

6) Could Trump denaturalize someone over a typo?

The Trump administration’s aggressive interpretation of “fraud” in the Borgono case has raised the concern that it could denaturalize someone over any tiny omission or error in their application, no matter how innocent.

But it can’t denaturalize anyone without the consent of a judge or jury. And it’s not even clear that it can win the Borgono case.

Remember, someone can’t be denaturalized simply for lying (or lying by omission) on her citizenship application. The lie has to be “material.” And the DOJ has just gotten a warning from the Supreme Court about labeling lies as “material” too readily.

In 2017, the Supreme Court ruled unanimously against the government in a denaturalization case, Maslenjak v. United States. The case stemmed from a criminal denaturalization prosecution in which the jury had been told that it didn’t actually matter whether a person’s lie on her citizenship application (in this case, a woman covering for her husband’s involvement in war crimes in Bosnia) was material or not because the criminal statute doesn’t spell that out explicitly.

The Supreme Court not only rejected the government’s reasoning regarding the criminal denaturalization process. The justices, both at oral argument and in the decision (written by Justice Elena Kagan), were extremely concerned that the government was trying to over-broadly define what counted as a material lie.

Kagan spelled out that the heart of denaturalization ought to be that it’s rescinding citizenship that never should have been granted to begin with — that it’s simply rectifying a mistake caused by a fraud. Otherwise, she points out, the standards for denaturalization will get decoupled from those of naturalization — leaving a lot of people in a very vulnerable position.

When it comes to lying, this means that not all lies open someone up to denaturalization, because not all lies disqualify them from naturalization.

This is an important legal bound. It means that even though, in theory, the Trump administration could attempt to denaturalize people for the tiniest imaginable error — a typo, for example, in their naturalization application — it would have a difficult time sustaining that in court.

7) If the Trump administration says its efforts are narrow, why are so many naturalized citizens worried they could be next?

Given the Trump administration’s rhetoric, and the consensus of the Supreme Court, it might seem that the impact of denaturalization efforts is likely to be fairly limited. Yet the response to the news of Trump’s “task force,” or to the story of Norma Borgono, has been anything but. Progressive immigration doves have shared essays like Masha Gessen’s online; naturalized immigrants have voiced concern to friends about whether they could be next.

Most of the people who’ve been naturalized in the US don’t know Supreme Court precedent, or the history of Operation Janus. They know that being a US citizen was supposed to keep them safe, and that it may no longer do that.

That’s the heart of Gessen’s essay. The virtue of citizenship, to an individual, isn’t just the high-minded idea of partaking in America as a civic project. Over the past 20 years, immigration law has changed to make more legal immigrants deportable, while immigration policy has changed to make deportation a realistic fear for more immigrants. During all this time, citizenship was assumed to be a firewall.

Immigrants are reexamining and sometimes discarding that assumption now. But should they?

A lot of opponents of the Trump administration believe that the rule of law has been totally wiped away in everyday government decision-making — but that belief goes too far. The law still prohibits the executive branch from doing some of the things immigrants fear.

At the same time, it’s hardly paranoid to observe that when the government creates an office to tackle a specific, finite task, it’s more likely to create more tasks once the first job is completed than to shutter the office. Having USCIS devote resources specifically to denaturalization is unprecedented in the agency’s (very short) history. That’s an important symbolic change to an agency that’s theoretically supposed to be the “welcoming” arm of the US immigration apparatus — a role it has all but shed this year.

The assumption of bad faith runs to the core. The Trump administration’s protestations about the limited scope of Operation Janus mean nothing because the Trump administration’s words, to its critics, mean nothing at this point. When it comes to immigration, a lot of people are convinced that they know what the real game is. They’re convinced the administration’s true goal isn’t actually to enforce the law — it’s to use the law as its tool to reshape who gets to claim American privileges and power.

8) Why does this matter to people who can’t be stripped of their citizenship?

Because of the message it sends.

When you don’t define citizenship as an inalienable right — to an equal share of membership in the United States of America — you have to define it as membership in some other kind of America instead. You have to define it based on behavior, or even on identity. And while that could, hypothetically, refer to anyone born on US soil, in practice it’s tended to refer to people who seem “culturally” American — whether that means loyalty to the US government, rootedness in living here, or coming from (or contributing to) the proper racial stock.

People to the left of Donald Trump generally don’t look back fondly on the immigration policy of the first half of the 20th century — the period of national-origin quotas set explicitly to retain the “racial balance” the US had in the 1890 census, before a wave of migration from Eastern and Southern Europe threatened to dilute America’s ethnic stock.

But Trump administration officials do. Jeff Sessions and Stephen Miller have cited the 1920s as a time when America was able to assimilate its immigrants successfully (whereas today’s America supposedly cannot).

It’s a reflection of the fact that this administration really does appear to view “Americanness” as something that has a cultural element to it — to believe that being legally American is not sufficient to being truly American.

9) What message is the administration sending?

What counts as “American” isn’t truly defined. But the administration is clearer about what it wishes to define as “American.” The president complains about taking people from “shithole countries,” and says he wants fewer Haitians in the US and more people from Norway.

The administration insists on its right to judge whether it is good for America’s “national interest” to allow someone to enter the US — with that national interest defined as something more restrictive than simply following existing US law.

It is cracking down not just on unauthorized immigrants but on refugees, asylum seekers, and holders of Temporary Protected Status; it seeks to overhaul the legal immigration system to cut tens of thousands of people seeking family-based visas out of line.

Immigrants across the legal spectrum are aware of how vulnerable they are. A 2017 study of immigrant parents found that the people changing their behavior most aggressively to attempt to evade suspicion weren’t unauthorized immigrants but Temporary Protected Status holders — hyper-aware that Trump would soon act to rescind their status (as he in fact did). And the people most worried about their children’s well-being were US citizens themselves.

It’s inevitable that people whose records will never be examined by Operation Janus will be made anxious by it. It’s inevitable that naturalized citizens around America will start wondering if they made a typo all those years ago, or forgot something, or told a white lie, and if that will now be used to deport them.

Legally, it shouldn’t be, and they shouldn’t be worried. But their worry comes from a place far too deep to be calmed by promises that the law ought to protect them. After all, they had thought the law gave them the same rights, as citizens, as any American born here.