Ninth Circuit Ok’s INS’ Denaturalization Program

In August of 1998, I reported that a Federal Judge in Seattle, Washington had stopped INS’ “administrative denaturalization” program. The United States Court of Appeals, Ninth Circuit, has just issued an opinion permitting the INS to take away citizenship of naturalized citizens under this expedited procedure.

Prior to the Immigration Act of 1990, the federal district court (and courts of record in any state or territory) had the sole authority to naturalize and denaturalize. That meant that applicants for naturalization had to have a hearing in front of a U.S. District Court Judge. It also meant that, if the INS wanted to denaturalize someone, the INS had to apply to the U.S. District Court to reopen the case in order to revoke the naturalization.

The Immigration Act of 1990 transferred the power to naturalize to the U.S. Attorney General. The Act did not say anything about the power to denaturalize. Attorney General Reno delegated her power to the Immigration & Naturalization Service. In 1996, the INS issued regulations which allowed the agency to administratively reopen a naturalization case and revoke a naturalization where there is Acredible and probative evidence which

(1) shows that the INS granted the application by mistake; or

(2) was not known to the INS Officer during the original naturalization proceeding; and

(i) would have had a material effect on the outcome of the original naturalization; and

(ii) would have proven that:

(A) the applicant’s application was based on fraud or misrepresentation or concealment of a material fact; or

(B) the applicant was not, in fact, eligible for naturalization.

Under the 1996 regulations, the INS must notify a person of its intent to revoke his naturalization. The citizen then has sixty days to rebut the allegations. If the applicant does not respond, the INS will revoke his citizenship without a hearing. Once a response is filed, the INS has 180 days to make a decision. INS may either revoke the person’s naturalization, or refer the case to the U.S. Attorneys for judicial revocation of the case pursuant to prior law. If the INS revokes the citizenship, the person may appeal the decision to the Administrative Appeals Unit.

Subsequent to the implementation of these regulations, the INS attempted to denaturalize more than 1500 people. Because many immigration law specialists believe that these regulations are unconstitutional, many lawsuits were filed in U.S. District Court to stop the INS from employing this procedure. In July of 1998, U.S. District Court Judge Barbara Jacobs Rothstein issued an injunction barring the INS from beginning or continuing any administrative denaturalization proceeding throughout the United States. That bar remained in effect until June 4, 1999 when the U.S. Court of Appeals for the Ninth Circuit issued an opinion, in Gorbach v. Reno, that upheld the INS’ right to use the administrative procedure to denaturalize citizens. The court held that when Congress transferred the power to naturalize to the Attorney General, it transferred the power to reopen the naturalization order in order to revoke it.

The Opinion was issued by U.S. Circuit Judges Rymer and Alarcon. U.S. Circuit Judge Kleinfeld dissented from the Opinion. However, this matter is not yet settled. When one of the party’s to a case disagrees with the decision issued by a three-member panel of U.S. Circuit judges, the party may request an “en banc” hearing which is a hearing by a majority of the judges of that particular circuit. It is expected that Ms. Gorbach and the other plaintiffs in this case will request an en banc hearing. As always, we will keep you informed of all developments in this most important area of immigration law. In the meantime, because the stakes are so high and the time is so short, it is essential that anyone facing an administrative denaturalization procedure contact an experienced immigration attorney immediately upon receipt of a notification of intent to revoke a naturalization.