As with many actions the Trump administration has taken to reduce and eliminate immigration over its four-year term, new and redoubled efforts to reduce permanent residence and naturalization continue. All is not lost, although despite the looming Biden presidency taking office on January 20, 2021, the Trump administration is still working hard to discourage immigration and keep foreigners out of the United States. Consider the following Trump administration actions:
- Making the civics portion of the naturalization test harder. The Trump administration piloted a revision of the civics portion of the naturalization test over the summer and is moving ahead with implementation. Despite the looming Biden presidency taking office on January 20, 2021, the Trump administration has just announced that those applying for naturalization before December 1, 2020, will take the current version of the test, but those who apply on or after that date will take the revised version.
According to U.S. Citizenship and Immigration Services, the revised test includes “more questions that test the applicant’s understanding of U.S. history and civics” and includes a variety of topics “that provide the applicant with more opportunities to learn about the United States as part of the test preparation process.” The English portion of the test will remain the same. Despite assertions that the changes are vital to “ensure that [the test] remains an instrument that comprehensively assesses applicants’ knowledge of American history, government and civic values,” about two-thirds of native-born Americans couldn’t even pass the current version of the test, according to a 2018 survey.
- Keeping immigrants out of the United States, and keeping people from becoming permanent residents. The Trump administration has issued a variety of executive orders that have the effect of keeping foreigners out of the United States and blocking various avenues toward immigrant status. Litigation has been successful in many cases to either block or at least mitigate the most draconian aspects of these policies. In one case to watch that was filed in California on November 9, 2020, Anunciato v. Trump, more than 245 visa applicants and their U.S. sponsors sued to block a Presidential Proclamation issued June 22, 2020, to bar them and others from receiving visas and coming to the United States. The plaintiffs argue that the proclamation unlawfully bars them from immigrating, has caused extraordinary hardship, and is arbitrary and capricious.
- Doubling down on efforts to find denaturalization cases to prosecute. Toward this end, the Trump administration created the Denaturalization Task Force in 2018 and the Denaturalization Section in 2020. The focus now is on denaturalizing those who can be found ineligible when they were naturalized. With more than $200 million dedicated to this new effort, predictably, cases have increased. The New York Times reported that “denaturalizations have ramped up under the Trump administration: Of the 228 denaturalization cases that the department has filed since 2008, about 40 percent of them were filed since 2017, according to official department numbers. And over the past three years, denaturalization case referrals to the department have increased 600 percent.” That might not sound like a lot relative to the 20 million or so naturalized U.S. citizens currently in the country, but the very existence of this concerted effort to find and prosecute denaturalizations can be expected to have a chilling effect on the pursuit of U.S. citizenship, and on naturalized citizens’ peace of mind. Indeed, as part of its budget request for fiscal year 2019, the Trump administration said it expected to review at least 700,000 immigrant files for possible denaturalization. Reportedly, the administration is looking for technical issues and even flaws in grants of permanent residence as bases for denaturalization efforts.
Denaturalization historically has been a rare step taken in only exceptional cases; for example, Nazi war criminals in hiding in the United States who lied about their past on their applications have been denaturalized. Material fraud is a problem, of course, but the idea has always been that U.S. citizenship isn’t awarded or taken lightly, so denaturalization applied too widely or for more minor or technical reasons can have a destabilizing effect and therefore should be avoided. There isn’t supposed to be a two-tiered U.S. citizenship, one level for U.S.-born citizens and a lower level for those who are naturalized. U.S. citizenship is supposed to be permanent and reliable, and once it’s granted, it’s a done deal—until now.
Indeed, Sarah Pierce, a policy analyst for the Migration Policy Institute, said that although “this effort may result in relatively few denaturalizations, it shows that the administration’s desire to keep immigrants ‘looking over their shoulder’ extends past legalization and even naturalization. If you weren’t born here, this administration is trying to keep you uncomfortable.”
Fortunately, it remains difficult to actually denaturalize someone, thanks in part to Maslenjak v. United States, a Supreme Court case decided in 2017, which made it clear that the government cannot denaturalize someone simply for a false statement but needs to prove that the statement “sufficiently altered those processes as to have influenced the award of citizenship.” The Court noted that people sometimes make false statements out of fear, embarrassment, a desire for privacy, or other reasons. If citizenship could be revoked regardless of a person’s intent, this could “[open] the door to a world of disquieting consequences.” It would give prosecutors “nearly limitless leverage—and afford newly naturalized Americans precious little security” even if they otherwise meet the legal criteria for U.S. citizenship. No, the Court said: the law is not intended as a “tool for denaturalizing people who, the available evidence indicates, were actually qualified for the citizenship they obtained.”
The Court noted that misrepresentations that have a direct effect on the applicant’s eligibility are material; for example, if an individual lies about having been physically present in the United States for the required number of years, that would directly implicate eligibility for naturalization under the law. But otherwise, the Court said, the government’s reading that any false statement no matter how irrelevant can result in denaturalization “would create a profound mismatch between the requirements for naturalization and those for denaturalization. Some legal violations that do not justify denying citizenship would nonetheless justify revoking it later.” The government could thus “take away on one day what it was required to give the day before,” thus unmooring the revocation of citizenship from its award.
Do all of these efforts constitute an attempt to limit the number of new voters, to prevent foreigners from establishing lives in the United States, or to scare foreigners away from even trying—or some combination of all of the above? We might not need to wonder much longer. It remains to be seen what the coming Biden administration will do to mitigate these anti-immigrant efforts and turn back to the norms and values that have served our country so well for so long, of course. President-elect Biden’s plan for immigration does state that the administration plans to “streamline and improve the naturalization process to make it more accessible to qualified green card holders,” noting that the Trump administration “has made it far too difficult for qualifying green card holders to obtain citizenship.” Biden pledges to “restore faith in the citizenship process by removing roadblocks to naturalization and obtaining the right to vote, addressing the application backlog by prioritizing the adjudication workstream and ensuring applications are processed quickly, and rejecting the imposition of unreasonable fees.”
But on its way out the door, the Trump administration’s damaging efforts may yet have long-term effects that outlast its term and are no less real for being less concrete. The result could be a decrease in immigrants’ ability to trust in the desirability, attainability, and stability of permanent residence, U.S. citizenship, and establishing a life in the United States. The tarnishing of America’s historic, inspiring role as a shining beacon of freedom and hope in the world may be the biggest tragedy of this disheartening era.
Contact your WR attorney for advice in specific situations.
- USCIS news release, https://www.uscis.gov/news/news-releases/uscis-announces-a-revised-naturalization-civics-test
- 2020 (revised) version of the civics test, https://www.uscis.gov/citizenship/2020test
- 2008 (current) version of the civics test, https://www.uscis.gov/citizenship/find-study-materials-and-resources/study-for-the-test
- USCIS test updates page, https://www.uscis.gov/citizenship/find-study-materials-and-resources/check-for-test-updates
- 128 civics questions and answers (2020 version), https://bit.ly/3eYzjI0
- Maslenjak v. United States, https://www.supremecourt.gov/opinions/16pdf/16-309_h31i.pdf
- Department of Justice press release on new Denaturalization Section, https://www.justice.gov/opa/pr/department-justice-creates-section-dedicated-denaturalization-cases
- “Featured Issue: Denaturalization Efforts by USCIS,” American Immigration Lawyers Association, https://www.aila.org/advo-media/issues/all/featured-issue-denaturalization-efforts-by-uscis
- “Justice Dept. Establishes Office to Denaturalize Immigrants,” New York Times, https://www.nytimes.com/2020/02/26/us/politics/denaturalization-immigrants-justice-department.html
- “Trump Administration Is Spending Enormous Resources to Strip Citizenship From a Florida Truck Driver,” The Intercept, https://theintercept.com/2019/04/04/denaturalization-case-citizenship-parvez-khan/
- “Due Process and Denaturalization,” American Bar Association, https://www.americanbar.org/groups/litigation/committees/civil-rights/articles/2019/due-process-and-denaturalization/
- “The Trump Administration’s Plan to Strip Citizenship From Thousands of Americans,” ACLU/ILRC, https://www.aclu.org/sites/default/files/field_document/trump_administrations_plan_to_strip_citizenship_from_thousands_of_americans.pdf
- “2 of 3 Americans Wouldn’t Pass U.S. Citizenship Test,” U.S. News & World Report, https://www.usnews.com/news/politics/articles/2018-10-12/2-of-3-americans-wouldnt-pass-us-citizenship-test