Citizenship: a not-so-inalienable right?

Opinion by Habib Olapade
June 2, 2017, 12:57 a.m.

Citizenship is a precious right. While many Americans were blessed with that right by virtue of their birth, others have obtained citizenship through naturalization. Throughout our history, naturalized citizens such as Andrew Carnegie, Madeleine Albright, Felix Frankfurter, Albert Einstein, Wayne Gretzky and Mikhail Baryshnikov have enriched every area of our national life including business, government, law, science, sports and the arts.

The Trump administration’s nativist policies do not seem to account for these positives. Most liberals and moderates have not been phased, though, because multiple federal courts have imposed injunctions on the president’s immigration executive orders. What most observers have not realized, however, is that Trump has pivoted from executive orders and is now advancing his agenda with aggressive legal positions in deportation hearings.  

Take the case of Divna Maslenjak, an ethnic Serbian born and raised in modern-day Bosnia. After the former Yugoslavia’s collapse in the early 1990s, armed clashes broke out between Bosnia’s majority Muslim and minority Serb populations. In April 1998, Maslenjak, her husband, Ratko, and her two children traveled to Belgrade to meet with an American immigration official assisting refugees. The Maslenjaks received asylum status in the United States by convincing the government that Ratko would be drafted into the Bosnian Serb army against his will if they remained in Yugoslavia.       

She lied. During the asylum petition period, Ratko was already serving in the Bosnian Serb army as a company commander in the Bratunac Brigade. Indeed, he was tangentially involved in the genocide of 8,000 Bosnian Muslims in Srebrenica. Although the records did not directly implicate Ratko in war crimes, they do demonstrate that he was participating in active duty on the date the genocide occurred and was promoted to a higher rank two months later. Ratko was subsequently arrested for, and convicted of, making false statements to immigration officials, subjecting him to mandatory deportation. Ratko filed another petition for asylum but during his hearing, Divna admitted that she initially lied about his participation in the Bosnian army. After this confession, the government sought to deport Divna under 18 U.S.C. 1425, which states that the government may strip a naturalized American of her citizenship when she obtains it by violating a federal law. In this case, Divna violated 8 U.S.C. 1427, which prohibits individuals from giving false testimony in order to receive an immigration benefit.

The Maslenjaks are not exactly plaintiffs who arouse sympathy — which is exactly why the administration is seeking to capitalize on this situation. Trump’s Justice Department is asking the Supreme Court to interpret 18 U.S.C. 1425 so as to permit denationalization whenever a citizenship applicant lies on their petition files — regardless of how immaterial the lie is. The government’s position is not simply inhumane, it could also have drastic consequences. This is so because the government’s position would permit federal prosecutors to denaturalize anyone — potentially conferring unlimited discretion on justice department officials. For instance, during oral argument, Chief Justice Roberts tried to test the limits of the government’s position with a hypothetical. Citizenship applicants must complete an N-400 application for naturalization, which among other things, asks the candidate to state whether she or he ever committed a criminal offense, however minor, regardless of whether there was an arrest. Chief Justice Roberts admitted that quite some time ago he drove sixty miles per hour in a fifty-five mile-an-hour zone. He inquired whether a naturalized citizen who did not report this incident on their N-400 application but lived in the nation for twenty years could suddenly be deported for this white lie. Justices Kagan and Sotomayor asked if a self-conscious female applicant who understated her weight could also be denaturalized under the government’s theory.

Mr. Parker responded that the government could denaturalize an applicant under both circumstances — provoking visible indignation from every bench member except Justices Thomas and Gorsuch. Disgusted, Justice Kennedy commented that the government’s argument “demean[ed] the priceless value of citizenship.” Justice Breyer admitted that it was “rather surprising that the [U.S. government thinks naturalization laws should be] interpreted in a way that would throw into doubt the citizenship of a vast percentage of the population.”           

18 U.S.C. 1425’s text also suggests a more natural reading. The government should only be permitted to denaturalize a citizen under this provision if it can prove that the resident obtained citizenship because of the violation. While this standard would not save the Maslenjaks, it would prevent the current administration from deporting citizens for baseless reasons such as lies about minor traffic violations or weight gain.      

Finally, constitutional concerns could arise if 18 U.S.C. 1425(a) was interpreted to require errorless naturalization filings. The Constitution expressly authorizes Congress to “establish a uniform rule of naturalization.” This general grant to confer citizenship, however, generally does not permit Congress to strip natural born or naturalized Americans of their citizenship. There are two exceptions to this rule, though. An American can lose their citizenship provided she (1) voluntarily renounces allegiance to the union or (2) unlawfully procures naturalization. Because federal courts presume that immigration statutes and regulations ultimately seek to “secure the blessings of liberty … to all those upon whom the right of American citizenship has been conferred,” during denaturalization proceedings, immigration statutes are interpreted as far as reasonably possible to favor the citizen. Therefore, even if readers believed that there was a close case between the government’s position and the more natural reading for the statute, this ambiguity should be resolved in the citizen’s favor. Deportation agents have better things to do than concern themselves with trifles.           


Contact Habib Olapade at holapade ‘at’

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