INS Can Void Citizenship, Court Says

In a groundbreaking decision, a deeply divided federal appeals court in San Francisco ruled Friday that the U.S. Justice Department can revoke citizenship of naturalized immigrants through closed administrative hearings outside the court system.

In a 2-1 decision, the U.S. 9th Circuit Court of Appeals overturned a 1998 injunction by a federal judge in Seattle that had brought to a halt the new procedures being used by the Immigration and Naturalization Service, a unit of the Justice Department.

The decision could affect 4,500 pending cases nationwide, including hundreds in California, attorneys said. Most of the cases involve individuals who allegedly failed to disclose an arrest at the time of naturalization proceedings. The decision also will affect future cases, unless it is overturned.

INS spokesman Bill Strassberger said the agency was pleased with the decision. “We feel that the administrative denaturalization process is less cumbersome than the existing judicial denaturalization process,” he said.

Attorneys representing thousands of immigrants who have been threatened with the loss of citizenship said they were deeply disappointed. They said they will seek a review by a larger panel of 9th Circuit judges, a step that would require a majority vote of the circuit’s 22 active judges. Failing there, the plaintiffs could seek a review from the U.S. Supreme Court.

“Citizenship is among a person’s most cherished rights, and this is the first time any court has ever held that the INS may take that right away on its own without going before a judge,” said Washington, D.C., attorney Jonathan S. Franklin.

Seattle attorney Robert Gibbs said the new INS program has led to the largest “citizenship stripping” campaign in the nation’s history.

Friday’s ruling came in a national class-action lawsuit challenging the right of the INS to void grants of naturalization that officials believed had been approved by mistake or through fraud.

The INS adopted the rules in 1996 after conducting a study of the 1 million people granted citizenship from August 1995 to September 1996. The study found that about 6,300 people allegedly lied or failed to tell the INS about prior arrests. But the agency acknowledged that only 369 of those people committed crimes that would have barred citizenship.

Proponents of the new policy said that lying under oath--as most of those targeted under the new program were accused of doing--should disqualify applicants from the privileges of citizenship.

But immigrant advocates said the new program violated their clients’ constitutional right not to testify against themselves and in numerous instances unfairly targeted people for innocent or minor mistakes.

The agency had instituted 2,722 denaturalization proceedings under the program and had revoked the citizenship of 16 people at the time U.S. District Judge Barbara J. Rothstein issued her injunction. The agency had 1,900 more cases under review at that time.

Among them was that of Agueda Escalante, a 39-year-old homemaker from La Puente, one of the plaintiffs in the class action, who faces loss of her citizenship because she allegedly failed to disclose a 1993 arrest on suspicion of cultivating marijuana.

According to court documents, four police officers who went to her house, saying they were responding to a 911 call, reported finding a marijuana plant. Escalante protested that it was a common houseplant, but the officers did not believe her. She was handcuffed and taken to a police station. In fact, her contention was true, and the police dropped the matter once they realized their mistake, the documents say.

“Ms. Escalante did not consider this misunderstanding with the police to have been an arrest, because she was released without charge,” says a brief filed by attorney Franklin. He also asserts that Escalante was not asked at her naturalization interview whether she had ever been arrested. And he maintains that the arrest did not bar a finding of good moral character and would not have prevented her from being naturalized had it been considered by the INS.

Nonetheless, once the encounter was discovered by INS officials, proceedings were instituted against Escalante. Those proceedings were put on hold as a result of the injunction Rothstein issued in July.

Under the INS regulations, in the agency’s administrative hearing, naturalized citizens do not have the right of cross-examination and they must prove that the government erred. If a person is then denaturalized and loses an appeal before the INS, he or she can appeal the decision to a federal district court.

Previously, if the government wanted to revoke an individual’s citizenship, it had to start the procedure by filing suit in federal court.

Such cases were brought infrequently--for example against accused Nazi war criminals--and were subject to exacting procedural standards, with the burden of proof on the government.

The case decided Friday created a sharp split among three conservative judges. Both Pamela A. Rymer of Pasadena, who wrote the majority opinion (joined by Judge Arthur Alarcon), and Andrew Kleinfeld of Anchorage, who dissented, were appointed by President Bush.

In her majority opinion, Rymer said the Justice Department’s appeal presented solely the legal question of the INS’ statutory authority to reopen naturalization applications and vacate naturalization orders.

Rymer noted that the INS had adopted the regulations six years after Congress made significant changes in naturalization procedures. Before 1990, federal courts had the sole jurisdiction to naturalize citizens. That year, Rymer said, the structure was changed significantly when Congress transferred the exclusive power to naturalize from the courts to the attorney general.

With that transfer, U.S. Atty. Gen. Janet Reno “assumed the adjudicative role previously reserved for the courts,” Rymer wrote.

She acknowledged that Congress did not explicitly give the attorney general the power to revoke citizenship. However, she added, “it seems to us that the power to revoke is implicit in the authority now conferred on the attorney general.”

“The public interest counsels in favor of bringing certainty to the process as quickly as possible,” Rymer wrote.

Kleinfeld issued a vigorous dissent. “The attorney general not only grabbed the ball on denaturalization, but ran out of bounds with it,” he wrote.

He also noted that the panel majority had conceded that Congress had not explicitly given the new authority to the attorney general. Kleinfeld said the power to revoke citizenship is so important that it should not be inferred from Congress’ silence. “Taking over denaturalization proceedings, shifting the burden of proof from the government to the citizen, and imposing two layers of administrative proceedings before the naturalized citizen can get to court [on appeal] is all quite a lot to infer from silence,” he wrote.

INS officials have dismissed several of the cases they filed initially under the new procedure, including one against former Soviet refugee Irina Gorbach, among the plaintiffs in the suit. Gorbach, a software engineer for Microsoft, said her problems with the INS arose when she moved to Bellevue, Wash., from Salt Lake City while her citizenship application was pending. She said she had informed the INS of the move, but proceedings were initiated against her.