DENATURALIZATION EFFORTS BY USCIS – PART II
For civil denaturalization, the government must show “clear, convincing, and unequivocal evidence which does not leave the issue in doubt” that the individual procured naturalization illegally and/or concealed or willfully misrepresented a material fact during the naturalization process. There is no statute of limitations for pursuing a civil denaturalization case.
For a criminal conviction, the federal government must show “proof beyond a reasonable doubt” that the individual knowingly obtained or attempted to obtain naturalization through fraud for him- or herself or for another individual. Denaturalization as a result of a criminal conviction is subject to a 10-year statute of limitation.
An individual whose U.S. citizenship is revoked returns to the immigration status he or she had before becoming a U.S. citizen. That individual may be deported if she does not have lawful immigration status after denaturalized and/or can serve jail time if U.S. citizenship was revoked because of a criminal conviction.
Should People Be Concerned About Denaturalization?
Again, denaturalization is rare. Nevertheless, there are more than 20 million naturalized Americans in the United States. As a result, there is concern that the federal government’s denaturalization efforts could lead to the revocation of U.S. citizenship of many individuals who made minor or unintentional mistakes or omissions in their naturalization application. Some of the questions during the naturalization process are broad and vague, such as “Have you ever committed, assisted in committing, or attempted to commit, a crime or offense for which you were not arrested?” In addition, courts have not clarified what constitutes an offense that was material to the individual obtaining citizenship and could be the basis for a denaturalization proceeding. A broad interpretation of the grounds for denaturalization could adversely affect many naturalized Americans, especially because there is no statute of limitations for civil denaturalization. Just the creation of this new office in and of itself is “undoing” their naturalization by taking away these Americans’ assumption of permanence.
In 2017, the Supreme Court held in a unanimous decision in Maslenjak v. United States that only an illegal act that played a role in an individual’s acquisition of U.S. citizenship could lead to criminal denaturalization, narrowing the scope under which an individual may be denaturalized. The Supreme Court ruled that if an applicant made a false statement during the citizenship process, the statement must have played some role in the individual obtaining citizenship in order to warrant the revocation of citizenship. The Court stated that “small omissions and minor lies” that did not influence the award of citizenship do not necessitate denaturalization. Yet, it remains to be seen how courts will determine whether a false statement played a role in an individual obtaining citizenship.
What? I’m Suddenly Not a U.S. Citizen?
Immigration lawyers have always encountered people who thought they were U.S. citizens only to find out they aren’t. The issue often arises when the individual goes to renew his/her driver’s license and doesn’t have a birth certificate or passport, or when the person seeks to renew his passport. Whether this issue will become more common because of the more rigid requirements states are imposing to obtain driver’s licenses or because U.S. Citizenship and Immigration Services (USCIS) and Department of State (DOS) are more closely scrutinizing applications and petitions, remains to be seen.
Determining citizenship can be complicated, especially when a child of U.S. citizens is born abroad. Different rules govern depending on the year of birth, whether the parents were married at the time of birth, whether both parents are U.S. citizens, or whether the U.S. parent lost the right to confer citizenship to his or her children due to spending too much time outside of the United States.
In other cases, children rely on their parents telling them that they are U.S. citizens throughout their youth, only to find out years later that they never were. They’ve spent their lives saying that they U.S. citizens — on work applications, on college applications, everywhere. A false claim to U.S. citizenship is a permanent, nonwaivable ground of inadmissibility.
And, then there are children born in the U.S. to diplomats. Were they born after the diplomat’s termination of status? Are they U.S. citizens? Some children find out only when renewing a passport that they were not, in fact, ever eligible for citizenship even though they had received numerous U.S. passports in the past.
Foreign nationals who encounter issues surrounding proof of their U.S. citizenship are encouraged to seek the advice of experienced immigration counsel to learn their true status.
Conditional Residents (I-751 Applicants) Should Expect Interviews by USCIS
In late 2018, USCIS issued a new policy memo that limits when officers can waive the interview requirement for Form I-751, the petition certain marriage-based green card holders must submit to remove the condition on their permanent residence. Under the previous policy guidance dated 2005, USCIS officers were advised that interviews should be scheduled only when (1) there is insufficient evidence of the bona fides of the marriage, and/or (2) in waiver cases, there is inconclusive evidence to establish eligibility for a waiver. In addition, the earlier guidance encouraged the use of Requests for Evidence (RFEs) to obtain additional evidence in lieu of transferring the petition to the local USCIS office for an interview. In contrast, the 2018 memo states that a waiver of the interview requirement can only be considered if the USCIS officer is satisfied that all the following conditions have been met:
A decision based on the record can be made because it contains sufficient evidence about the bona fides of the marriage, and that the marriage was not entered into for the purpose of evading the immigration laws of the United States;
For cases received on or after Dec. 10, 2018, USCIS has previously interviewed the I-751 principal petitioner;
There is no indication of fraud or misrepresentation in the Form I-751 or the supporting documentation; and
There are no complex facts or issues that require an interview to resolve questions or concerns.
This means that permanent residents who received an immigrant visa outside the U.S. after approval by a U.S. consulate abroad or entered the United States as K visa holders and were never interviewed by USCIS will be required to be interviewed. The memo also contains language that suggests that even individuals who process in the U.S. will experience an uptick in in-person interviews.
I-751 petitions are already facing substantial processing delays that have increased from an average of 12 to 18 months. This new in-person interview requirement may further increase processing times and cause significant delays in obtaining a final decision on the petition. This is in line with reported trends across other USCIS application and petition types.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email firstname.lastname@example.org