Stripping Naturalized Americans of Citizenship Faces High Legal Hurdles

“America is for Americans and Americans only.” So declared top Trump aide Stephen Miller at a campaign rally last year. This vision is manifested not just in the administration’s efforts to deport people the administration claims are present in the country unlawfully, but also in changes to who gets to become an American citizen — or stay one.

In direct conflict with the plain language of the 14th Amendment and more than a century’s worth of Supreme Court case law, the administration is attempting to end the right to citizenship for an estimated 255,000 children born in the United States each year to parents who are on temporary visas or are not authorized to be in the country.

Even those who have already become U.S. citizens are not safe. Justice Department lawyers have been instructed to “maximally pursue denaturalization proceedings,” with broad flexibility on who to target. Like the denaturalization drives of the first half of the 20th century, this effort sends a clear message to 24.5 million naturalized Americans in the United States: Your status as citizens and the life you have built are not secure. The message is creating fear among naturalized citizens that saying the wrong thing could make them the next target.

But it is not easy to strip naturalized Americans of their citizenship. The law imposes a high bar, and the Supreme Court has been particularly vigilant in cases where a person’s political beliefs may be driving the effort. Unfortunately, if the administration’s goal is to cast a pall of uncertainty over naturalized citizens, it can be achieved by bringing a small number of loudly heralded cases.

According to denaturalization scholar Patrick Weil, more than 22,000 Americans had their citizenship revoked during the 20th century, which is more than in any other democracy. Most of these took place during the first half of the century and targeted people based on their political affiliations, race, and even gender.

Prominent anarchist Emma Goldman was repeatedly targeted by President Theodore Roosevelt’s administration, which eventually succeeded in denaturalizing her and deporting her to Russia in 1919. During World War I, President Woodrow Wilson’s administration began denaturalizing German- and Asian-born citizens, along with anarchists and people who spoke out against the war. President Franklin Roosevelt redoubled these efforts during World War II, adding alleged Nazi sympathizers to the list of targets.

These abuses, which mainly attempted to use laws meant to correct fraud in the naturalization process, led to a series of Supreme Court decisions imposing strict guardrails on government attempts to deprive naturalized Americans of their citizenship.

As a result, in recent decades, citizenship stripping has been rare, with only 11 denaturalization cases on average each year from 1990 to 2017. Most involved people who had hidden serious criminal activity or involvement in human rights violations when applying for citizenship, such as a Nazi policeman who persecuted Jews during World War II and a former member of the Bosnian Serb Army who concealed his service in a unit responsible for the 1995 Srebrenica massacre. Recent denaturalization efforts under President Barack Obama and during President Donald Trump’s first term have also not resulted in large numbers of cases.

The Constitution grants Congress the power to establish a “uniform rule of naturalization” — to set the terms and conditions under which a foreign-born national may become a citizen. The authority to revoke citizenship, however, is limited. In 1967’s Afroyim v. Rusk, the Supreme Court affirmed the principle announced 70 years earlier in United States v. Wong Kim Ark that the Constitution does not give Congress the authority to forcibly deprive a naturalized American of citizenship: The 14th Amendment protects “every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race.”

The only situation in which citizenship can be revoked without the citizen’s consent is if it is unlawfully procured. This rule was cited by the Court in the 1981 case Fedorenko v. United States and has been relied on by courts across the country.

The law provides two paths for the government to revoke unlawfully procured citizenship: civil and criminal proceedings.

The civil statutes authorizing revocation have a long and complex history, but the current law, 8 USC 1451(a), provides that a naturalized person’s citizenship can be taken away if it was “illegally procured” or “procured by concealment of a material fact or by willful misrepresentation.”

To show that these conditions are met, the government must establish that the person did not meet the three requirements for citizenship when they applied. The first two are objective: five years of lawful permanent residence in the United States with physical presence for at least half that time and continuous residence since the application was filed.

The third requirement is “good moral character,” which is not defined in immigration law. The statute does, however, provide a list of behaviors or activities that preclude a finding of good moral character — including certain criminal offenses, participation in persecution or Nazi genocide, and false testimony for the purpose of obtaining an immigration benefit. The law also says that even if someone is not within the listed categories, an adjudicator is not precluded from finding a lack of good moral character “for other reasons.”

This gives adjudicators considerable leeway when considering whether people qualify for citizenship in the first instance. U.S. Citizenship and Immigration Services recently announced policies that further expand that discretion. The government can also seek to revoke citizenship by claiming the citizen misrepresented or withheld information about some activity that showed a lack of good moral character.

While the civil revocation provision in section 1451(a) looks at a person’s actions prior to naturalization, another provision of the civil code, section 1451(c), allows the government to pursue denaturalization for actions taken up to five years after naturalization on the theory that behavior within that period shows a lack of allegiance to the United States at the time of naturalization. Under section 1451(c), joining or being affiliated with certain organizations or advocating certain views in the period following naturalization is prima facie evidence that citizenship was obtained by “concealment of a material fact or by willful misrepresentation.” The types of affiliations that can trigger this rule are broad, extending to organizations that advocate destruction of property.

This may appear to leave room for the government to target naturalized citizens based on First Amendment–protected activity, such as joining a protest arranged by an organization that could be regarded as advocating for the destruction of property. The Trump administration has arrested, detained, and deported pro-Palestinian protesters who have attended demonstrations where property was damaged. Denaturalizations could become an extension of that effort.

Alternatively, the government may commence a criminal prosecution under 18 USC 1425, which requires proof beyond a reasonable doubt that an individual “knowingly procur[ed] or attempt[ed] to procure, contrary to law, the naturalization or evidence of naturalization or of citizenship.” Such cases must be brought within 10 years of the offense. Conviction requires the government to establish that the citizen lied about facts that either would have led the immigration official to deny naturalization or would have led to discovery of other facts warranting a denial.

However, the courts have imposed significant constraints on these citizenship-stripping laws, particularly in cases where the government seems to be targeting citizens’ association or speech.

In 1824, the Supreme Court held that a naturalized citizen is “a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native.” Since the 1940s, it has issued a series of decisions recognizing the importance of citizenship rights. Among other things, the Court has rejected congressional attempts to treat naturalized Americans differently than the native born and rebuffed attempts to denaturalize Americans based on their country of origin, beliefs, or statements, no matter how unpopular or even odious. Unless a citizen consents to give up their citizenship, the government must prove that they illegally acquired that citizenship in the first place and meet an elevated burden of proof.

Fundamental Protections

The Supreme Court jurisprudence constraining the government’s attempts to strip citizenship from Americans developed around the time of World War II and in its aftermath. The legal disputes often involved the most unsympathetic people — alleged Nazis and communists — and arose at a time when the United States was at war with Germany and in the throes of the Second Red Scare and McCarthyism. Rather than cave to the political climate, the Court articulated several key principles and rules limiting the government’s authority to denaturalize citizens that remain in effect today.

In the 1943 case Schneiderman v. United States, the Court emphasized that citizenship is a “precious right” and it would “be difficult to exaggerate its value and importance.” Taking it away is “more serious than a taking of one’s property, or the imposition of a fine or other penalty.” This recognition permeates its subsequent decisions and forms the basis for the stringent standards it set.

The Schneiderman Court also showed its skepticism of denaturalization attempts that have a nexus to First Amendment–protected speech and activities. The justices rejected the Roosevelt administration’s attempt to revoke the citizenship of a Nazi sympathizer, holding that his country of origin, beliefs, or statements — even if hated by a majority of the country — were irrelevant to the determination of whether to take away his citizenship. Rather, rights to “liberty in thought and action [belong] to all those upon whom the right of American citizenship has been conferred by statute, as well as to the native born.” Concurring, Justice Wiley Rutledge said that a citizen living under a threat of denaturalization could never be truly free. “If he belonged to ‘off-color’ organizations, or held too radical or, perhaps, too reactionary views . . . he could not open his mouth without his words being held against him. . . Such a citizen would not be admitted to liberty. His best course would be silence or hypocrisy. This is not citizenship,” he wrote.

Again in 1946, the Court in Knauer v. United States affirmed its commitment to ensuring that naturalized citizens are able to fully exercise their First Amendment rights. Although the Court concluded that Knauer had fraudulently procured his citizenship, it warned that naturalized citizens must have “the right to speak freely, to criticize officials and administrators, and to promote changes in our laws;” to do otherwise would “make denaturalizations the ready instrument for political persecutions.”

The Court has also consistently turned back congressional attempts to impose conditions on naturalized citizens. In Schneider v. Rusk, the justices struck down a law that allowed the government to revoke the citizenship of naturalized Americans who lived in their native country. No such rule applied to native-born Americans. This discrepancy, the Court held, relied on “the impermissible assumption that naturalized citizens as a class are less reliable, and bear less allegiance to this country than do the native born.” The Afroyim Court invalidated a law that would have stripped a naturalized citizen of his citizenship for moving to Israel and voting in its elections. Congress does not have “any general power, express or implied, to take away an American citizen’s citizenship without his assent,” it ruled.

Heightened Scrutiny

In addition to establishing fundamental rules recognizing citizenship as a right of the highest order, insisting on equal rights for naturalized and native-born citizens, and protecting naturalized citizens’ First Amendment rights, the Court established stringent rules for reviewing citizenship stripping cases.

Clear, unequivocal, and convincing proof

The Court has repeatedly held that, given the vital interest at stake, citizenship cannot be taken away in a civil proceeding unless the government provides clear, unequivocal, and convincing evidence that revocation is warranted. This standard is “substantially identical with that required in criminal cases — proof beyond a reasonable doubt.”

In-depth scrutiny of record

In applying the clear, unequivocal, and convincing standard, the Court reviews the record with heightened scrutiny. In the 1944 case Baumgartner v. United States, for example, the Court did not defer to the lower court’s finding that a German-born citizen had not truly and fully renounced his allegiance to Germany and did not intend to support the Constitution and laws of the United States. Instead, it conducted a detailed review of the timing and content of Baumgartner’s statements and diary entries about the virtues of Hitler and the German government and concluded that the evidence was insufficient to “penalize a naturalized citizen for the expression of silly or even sinister-sounding views which native-born citizens utter with impunity.”

Similarly in Schneiderman, the Court conducted a thorough canvass of Schneiderman’s Communist writings to conclude that his membership in the Communist Party did not mean that he supported overthrowing the American government by force and thus was not attached to the Constitution.

Proof of willfulness and materiality

As the United States entered the Cold War and Sen. Joe McCarthy (R-WI) led the House Un-American Activities Committee to root out suspected Communists, the Supreme Court again stepped in to limit citizenship-stripping efforts. In Nowak v. United States in 1958, the Court required the government to show that a citizen’s alleged opposition to the principles of the Constitution was willful; mere support for the Communist Party, which held those views was not enough.

Two years later, in Chaunt v. United States, the Supreme Court imposed a fourth requirement: materiality. The government had filed a civil case arguing that Chaunt’s citizenship should be revoked because he falsely denied membership in the Communist Party, lacked the requisite attachment to the Constitution, and had concealed and misrepresented his record of arrests. The Court held that the government had to show that any information Chaunt concealed would have warranted denial of citizenship or might have been useful in an investigation leading to the discovery of other facts justifying denial of citizenship. The “tenuous” connection between Chant’s prior arrests and his connection to the Communist party did not meet that standard.

By the time the Court issued Afroyim in 1967 holding that unlawful procurement was the only circumstance in which a naturalized American could be deprived of citizenship then, the Court had established strict legal requirements for citizenship stripping.

In 1988, Justice Antonin Scalia wrote for the majority in Kungys v. United States and summarized the four-part test for civil denaturalization when citizenship was unlawfully procured: the naturalized citizen must have misrepresented or concealed some fact, the misrepresented or concealed fact must have been willful, the fact must have been material, and the naturalized citizen must have procured citizenship as a result of the misrepresentation or concealment.

The only issues in dispute in the case were materiality and procurement. The majority opinion defined the materiality test as whether the misrepresentation or concealment had a natural tendency to produce the conclusion — by evidence that is clear, unequivocal, and convincing — that the applicant was qualified for citizenship. As for the requirement of procurement as a result of misrepresentation or concealment, the majority held that a material misrepresentation created a presumption that the naturalized citizen had been unqualified, but that she could rebut that presumption with a showing by a preponderance of the evidence that she actually had met the statutory requirement for naturalization.

Criminal Denaturalization

The Court has held firm to these principles in criminal denaturalization cases as well. In 2017, in Maslenjak v. United States, the Court considered criminal denaturalization pursuant to 18 USC 1425 which — similarly to the civil denaturalization provision — provides that an American’s citizenship can be revoked if the individual knowingly procured, contrary to law, the naturalization of any person.

A unanimous Court rejected the government’s argument that any false statement in the naturalization process was sufficient to establish that the citizen “knowingly procured” their citizenship unlawfully. Rather, the unlawful act — in this case, making a false statement — must have a causal connection to the acquisition of citizenship, meaning be material.

During oral argument, Chief Justice John Roberts showed the absurdity of ruling otherwise. The naturalization application asks whether the applicant ever committed a crime or offense for which he was not arrested. If a naturalized citizen drove 60 miles per hour in a 55 mph zone, Roberts pointed out, but later answered “no” to that question, his citizenship could be revoked. Such a result could lead to nearly any naturalized citizen being stripped of the right to citizenship for a failure to disclose even the most minor offense.

In sum, even during periods of heightened suspicion of foreign nationals, the Court has imposed strict limits on government efforts to strip citizenship, including a high burden of proof, de novo examination of the record, and materiality and willfulness requirements.

Previous efforts to define who is an American came at some of the darkest periods in our history. The Supreme Court’s 1856 Dred Scott decision finding that Black Americans could not be citizens was followed by the Civil War and eventually the 13th Amendment abolishing slavery and the 14th Amendment guaranteeing birthright citizenship.

In the 20th century, denaturalization efforts clustered around the two world wars and the two red scares. German- and Asian-born citizens were targeted for denaturalization during World War I, as were anarchists and labor leaders. During and after World War II, the government renewed its crusade against Japanese- and German-born Americans and also sought to denaturalize alleged communists and Nazis.

But the Supreme Court emphatically put a stop to efforts to strip naturalized Americans of the “precious right” of their citizenship, especially where those efforts targeted people for their race, ethnicity, or political views. These foundational decisions are particularly powerful because they came at a time of intense political upheaval, often involving the most unsympathetic people. The Supreme Court did not give an inch then and courts today must hold the line and follow its rulings to protect naturalized citizens from being punished for who they are or what they believe.