Last year, the Ninth Circuit Court of Appeals in Gorbach v. Reno reversed the ruling of a Washington District Court Judge, which had held that the INS’ “administrative denaturalization” rules were unauthorized, and enjoined the INS from proceeding against any individual. The INS rule, which was originally published in 1996, purported to implement a change Congress had made to the naturalization statute two years earlier. While the Ninth Circuit upheld the INS’ rule in principle, THE rule’s Constitutionality could be challenged in practice. The INS published a modification of the rule April 4, 2000, requiring the INS to meet a higher burden of proof to institute administrative denaturalization proceedings.
The INS’1996 rule states that INS may reopen a naturalization proceeding and revoke naturalization if it obtains “credible and probative evidence” that (1) shows that the Service granted the naturalization by mistake; or (2) was not known to the service Officer during the original proceeding; and (i) would have had a material effect on the outcome of the original proceeding; and (ii) would have proven that (A) the Applicant’s application was based on fraud, misrepresentation or concealment of a material fact; or (B) the applicant was not, in fact, eligible for naturalization.
The rule requires that the INS issue a Notice of Intent To Revoke (NOIR) Naturalization within 2 years of the date naturalization was granted, if it believes that the above conditions exist. The burden of proof would then shift to the individual to prove that he was in fact eligible for naturalization.
Procedurally, once an individual receives an NOIR, the individual must respond within sixty days, otherwise, the allegations in the NOIR are deemed admitted. If the individual rebuts the INS allegations, the INS will make a decision. The case will be referred for judicial proceedings if any material issues of fact exist as to the individual’s eligibility for naturalization. The individual whose naturalization is on the line must raise these issues of fact in rebuttal to the NOIR, or risk losing everything.
In its prelude to the new rule, the INS indicates that, in practice, it had made every effort to not institute denaturalization proceedings against individuals unless it had “clear, convincing and unequivocal” evidence that they were not in fact eligible for naturalization, such having been the burden of proof in judicial denaturalization proceedings prior to the 1996 rule. The INS premises the new rule on an objective for consistency with the judicial burden of proof. Although the INS ‘s rule states that the INS had attempted to institute denaturalization proceedings only of the higher standard of proof had been met, the rule provides that INS will, on its own motion, reopen any denaturalization case in which it appears that the proceedings were commenced based on the “credible and probative” evidence standard.
Prior to the publication of this rule, it was estimated that some 4000 cases were held in the balance, awaiting INS’ decisions as to whether denaturalization would be appropriate. Should the INS elect to proceed against these individuals, they will still be permitted to present their defenses in the reopened naturalization proceedings.
While Federal Court review will be available to any individual who INS strips of his citizenship, it make take well over one year to battle the INS’ denaturalization effort through the administrative process.