By Amanda Frost (American University Washington College of Law), GLOBALCIT collaborator
In 1967, the United States Supreme Court put an end to the U.S. government’s aggressive denaturalisation campaigns, declaring in Afroyim v. Rusk that denaturalisation for any reason other than fraud or mistake violated the U.S. Constitution. More than fifty years later, the Trump administration has resurrected denaturalisation by broadly defining fraud and mistake, as well as by seeking to remove citizenship through the civil system, under which the target has few procedural protections.
A Brief History of Denaturalisation in the United States
For the first half of the twentieth century, the U.S. government argued that it had nearly unfettered power to denaturalise its citizens under its inherent sovereign power to protect national security and manage foreign policy. At first, the courts accepted these arguments, allowing the government to revoke the citizenship of more than 22,000 Americans between 1907 and 1967—more than any other democracy. After growing increasingly uneasy with the practice, the Supreme Court held in Afroyim v. Rusk that the government has no constitutional authority to revoke citizenship without the consent of the citizen—though the Court was careful to note that “[o]f course . . . naturalisation unlawfully procured can be set aside.”
That decision, along with the easing of cold-war tensions and the rise of civil liberties, slowed the flood of denaturalisations to a trickle. Between 1968 and 2013, the U.S. government denaturalised fewer than 150 citizens, and most of those who lost their citizenship had lied about their significant roles in perpetrating crimes against humanity in their home countries. Only a few years ago, leading citizenship scholars such as Patrick Weil and Peter Spiro confidently, and correctly, declared that “denaturalisation has largely become a thing of the past.”
Denaturalisation Under the Trump Administration
Over the past two years, the Trump administration has revived denaturalisation as part of its agenda to discourage immigration. In 2017, former Attorney General Jeff Sessions announced that the U.S. Department of Justice “will aggressively pursue denaturalization” and that “denaturalization will play a prominent role in securing the integrity of our immigration system.” The Trump administration has asked Congress to provide additional funding to review over 700,000 naturalised citizens’ files, and has hired dozens of staff for a new office in California dedicated to denaturalisation. As the New York Times explained in an article in December 2018, denaturalisation has become the “next front” in the Trump administration’s opposition to immigration.
Legal Basis for Expanding Denaturalisation
The Trump administration has revived denaturalisation by aggressively interpreting denaturalisation statutes and pursuing denaturalisation through civil proceedings, in which the procedural protections are lower than in criminal cases.
Under 8 U.S.C. § 1451, the government can denaturalise a citizen if naturalisation was “procured by concealment of a material fact or by willful misrepresentation” or because it was “illegally procured.” A naturalised citizen’s intentional misrepresentation or omission of a material fact is one ground for denaturalisation, but individuals can also be denaturalised because they were ineligible for naturalisation, even if they were unaware of the grounds of ineligibility and engaged in no fraud or misrepresentation.
Moreover, because the questions on the naturalisation forms are both broad and vague, the potential for an innocent mistake is high. For example, the form asks: “Have you EVER committed . . . a crime or offense for which you were NOT arrested”—a phrase that encompasses an enormous amount of conduct. Failing to disclose political protest in a country that prohibits it, or driving a few miles above the speed limit, or parking illegally could all be grounds for a subsequent denaturalisation. As a result of these broadly-worded statutes, a large number of naturalised citizens are at risk of being investigated and losing their citizenship by an administration that chooses to pursue denaturalisation aggressively.
The government can also choose to file denaturalisation cases in the civil rather than criminal justice system, which comes with fewer procedural protections. The target of denaturalisation is not entitled to a government-funded lawyer, there is no right to in-person service of the complaint, the standard of proof is lower than in criminal cases, and there is no right to a jury. In addition, there is no statute of limitations in civil denaturalisation cases. A naturalised citizen is therefore always at risk of being denaturalised based on an error in the application process. In a 2017 Bulletin sent to U.S. Attorneys’ offices, the U.S. Department of Justice has noted these “advantages” of civil denaturalisation and urged government attorneys to bring civil rather than criminal denaturalisation cases.
Finally, the government is not required by law to weigh the equities when selecting targets for denaturalisation. In the past, the Department of Justice has taken into consideration the length of time the individual had been a citizen, whether the individual had a criminal record, and whether the individual possessed the necessary qualifications for citizenship. If these factors weighed in the individual’s favor, the government chose not to pursue denaturalisation even when the law would allow it. Based on recently-filed cases, however, it appears that the Trump administration no longer takes these factors into consideration.
The first target of the Trump administration’s expanded denaturalisation program, Baljinder Singh, is an example of its aggressive approach to denaturalisation. Singh has lived twenty-seven of his forty-four years in the United States, twelve of those as a U.S. citizen. He married a U.S. citizen and he has no criminal record. The government targeted Singh for denaturalisation because as a teenager he failed to attend an immigration court hearing after notice of that hearing was sent to an address at which he no longer lived—likely an innocent error that did not affect the merits of his case. Because Singh was denaturalised through the civil justice system, the government was not required to serve notice of the denaturalisation proceedings on him personally. Singh did not appear in court to defend his citizenship, quite possibly because he was unaware of the proceedings against him.
The Trump Administration’s Policy and Political Goals in Expanding Denaturalisation
The Trump administration’s expansion of denaturalisation furthers its broader agenda to discourage would-be immigrants from coming to the United States and encourage those already in the United States to leave. Denaturalisation is in accord with other policies that constrain legal immigration to the United States, such as the travel ban that prevented visa-holders from coming to the United States, restrictions on H-1B visa holders, and denying green cards to legal immigrants who have received government benefits. Like these other policies, denaturalisation contributes to the Trump administration’s message that all immigrants are suspect, regardless of their legal status, their criminal history, and whether they are now U.S. citizens.
The result is that all immigrants live in fear that their legal right to remain in the United States can be revoked at any time. As journalist and naturalised citizen Masha Gessen wrote for the New Yorker, the denaturalisation campaign has eroded the “assumption of permanence” that she and twenty million other naturalised Americans had once enjoyed. Although naturalised citizens were once considered equal to native-born citizens, she concludes “we are second-class citizens” now.
 387 U.S. 253 (1967).
 See Patrick Weil, The Sovereign Citizen: Denaturalization and the Origins of the American Republic (2013).
 Afroyim v. Rusk, 387 U.S. 253, 267 n.23 (1967).
 Weil, supra, at 180. See also Peter J. Spiro, Expatriating Terrorists, 82 Fordham L. Rev. 2169, 2170 (2014).
 Press Release, U.S. Dep’t of Justice, Office of Pub. Affairs, Justice Department Secures the Denaturalization of a Senior Jihadist Operative Who Was Convicted of Terrorism in Egypt, Apr. 20, 2017.
 U.S. Attorneys’ Bulletin, Civil Immigration Enforcement and the Office of Immigration Litigation-District Court Section, Vol. 65, No. 3 (July 2017), at 6.
 Department of Homeland Security, U.S. Immigration and Customs Enforcement Budget Overview, Fiscal Year 2019 Congressional Justification, at 21, https://www.dhs.gov/sites/default/files/publications/U.S.%20Immigration%20and%20Customs%20Enforcement.pdf.
 Seth Freed Wessler, Is Denaturalization the Next Front in the Trump Administration’s War on Immigration?, N.Y. Times, Dec. 19, 2018.
 Fedorenko v. United States, 449 U.S. 490, 506 (1981). See also United States v. Jean-Baptiste, 395 F.3d 1190, 1191 (11th Cir. 2005) (denaturalising defendant despite absence of fraud or misrepresentation because individual was statutorily ineligible to naturalise based on prior conviction); United States v. Dang, 488 F.3d 1135 (9th Cir. 2007) (same); United States v. Suarez, 664 F.3d 655 (7th Cir. 2011) (same).
 Kritika Agarwal, Stripping Naturalized Immigrants of Their Citizenship Isn’t New, Perspectives on History, Smithsonian.com, Jul. 24, 2018. At oral argument during Maslenjak v. United States, 137 S. Ct. 1918 (2017), Chief Justice Roberts asked the lawyer representing the government whether the failure to list the “offense” of driving 60 miles an hour in a 55-mile-an-hour zone would allow the government to seek denaturalisation years later, and the lawyer responded that it would. See Transcript of Oral Argument at 27-30.
 U.S. Attorneys’ Bulletin, Civil Immigration Enforcement and the Office of Immigration Litigation-District Court Section, Vol. 65, No. 3 (July 2017).
 Department of Justice Circular Letter No. 107 (Sept. 20, 1909).
 Cassandra Burke Robertson and Irina D. Manta, (Un)Civil Denaturalization, 94 NYU L. Rev. __ (forthcoming 2019).
 Tung Nguyen and Sherry Hirota, Trump’s Next Target: Legal Immigrants, Sep. 25, 2018.
 Masha Gessen, In America, Naturalized Citizens No Longer Have an Assumption of Permanence, The New Yorker, Jun. 18, 2018. See also Matthew J. Gibney, Should Citizenship be Conditional? The Ethics of Denationalization, The Journal of Politics, vol. 75, no.3, July 2013, pp. 646-658, at 652 (describing how denationalization “violat[es] liberal principles of equal respect by generating a group of second-class citizens”); Schneider v. Rusk, 377 U.S. 163 (1964) (arguing that “discrimination aimed at naturalized citizens drastically limits their rights . . . creat[ing] a second-class citizenship”).