INS No Longer Has The Power to Take Away Your Citizenship

Amendments to the Immigration and Nationality Act both in 1990 and 1996 provided the INS with the opportunity to reopen the naturalization proceedings of those who have already been naturalized, in an attempt to revoke said naturalization. If one’s naturalization matter was reopened by the INS, not only did one face losing the precious citizenship previously gained, but also faced possible criminal prosecution for any fraud, misrepresentation, or concealment of material facts. The INS’ power to take away your citizenship by way of an informal administrative proceeding has thankfully been brought to its deserved end.

In the matter of Gorbach v. Reno (9th Cir., 2000), 2000 Daily Journal D.A.R. 80001, the United States Court of Appeals for the Ninth Circuit ruled that the INS lacks the authority to take away one’s citizenship, a process formally known as “administrative denaturalization.” A ten judge panel reminded the INS in no uncertain terms, that in order for an agency such as the Immigration Service to act, they must have the authority to do so. Authority requires more than the opinion of the Immigration Service and/or its directors and subordinates. In fact, federal authority requires derives from constitutional permission and/or congressional mandate.

As indicated above, prior to this landmark decision wherein the INS was reprimanded by the court, the District Director of the INS had the regulatory power to reopen a naturalization proceeding and revoke citizenship that was previously afforded. Common examples of why a naturalization matter be reopened is upon the INS discovering that your citizenship was granted in error, or that the applicant failed to disclose certain facts during the interview, for example an arrest that did not result in a conviction or even a conviction that was so old that it did not appear on an FBI printout. Regarding mistakes made in the adjudication of an application, the Gorbach court, relying upon the results of a KPMG audit requested by the Attorney General herself, indicated that one out of every ten applications is processed in error and that 3.7% of all applications for naturalization are approved in error. As a result, the Justice Department is now attempting to revoke the naturalizations of well over six thousand people previously naturalized.

In light of the foregoing, a class of plaintiffs facing administrative denaturalization proceedings argued that the INS is without the authority to conduct these proceedings.

The INS argued, unsuccessfully, that since the Attorney General has been given the power to naturalize certain persons, implicit in that power is also the power to denaturalize. The Gorbach court disagreed and in so doing stated simply, that the INS is without the regulatory power to denaturalize. Instead, actions to denaturalize must be instituted by the attorneys of the United States, not the INS, and that said actions are not permitted to take place admnisitratively, but must be filed in the District Courts.

Although the Gorbach decision is an important procedural victory for immigrants who wish to become citizens, it should also be a valuable learning tool. While denaturalization may occur as a result of the INS simply learning that it made a mistake in approving an application, denaturalization proceedings normally occur when it is discovered that an applicant failed to disclose, concealed and/or willfully misrepresented material facts. If denaturalized, be advised that any pending family based petitions based upon your once naturalized status will be destroyed.

It goes without saying that the most effective way to avoid denaturalization or “the loss of both property and life; or all that makes life worth living” is to be adequately prepared. Said preparation begins not when planning to attend the naturalization interview, but in determining whether to apply for naturalization to begin with; unscrupulous attorneys concerned more with their own pocket book exact fees from unknowing clients so they may “expunge” criminal convictions which are most often of no use in immigration proceedings. After carefuly and reasoned analysis, if the decision is made to proceed with an application for naturalization, adequate preparation will result in your success not only at the administrative level, i.e. obtaining your citizenship, but will allow you to keep what is rightfully and lawfully yours, namely your life, liberty, property and last but definitely not least, your citizenship.