What to Make of the Justice Department’s Denaturalization Initiative

On June 11, Brett Shumate, the head of the Civil Division of the Department of Justice, issued a memorandum setting forth five enforcement priorities. One that attracted much attention was “Prioritizing Denaturalization”—that is, stripping citizenship from Americans who were not born as citizens. That section, in turn, listed a further set of priorities for which denaturalization cases to bring.

How worrisome is this? The answer—not a satisfying one—is that it may be too soon to say.

The memorandum, like so much of the Trump administration’s unrelenting assault on immigration, raises several questions. To what extent are “priorities” purporting to guide immigration enforcement real, or just window-dressing for a zero-tolerance effort to root out all illegality? How many innocent people will nonetheless get caught up in the dragnet? And will those targeted have a full and fair opportunity to challenge the government’s actions against them?

Under current law, the Justice Department may not denaturalize an unwilling citizen simply because the department, or the president, does not like them—or even because of acts the citizen committed after naturalization. Rather, it may do so only if the citizen acquired citizenship improperly. And the Justice Department cannot do this by executive fiat: It must prove its case in federal court.

Congress has provided two general ways to denaturalize a citizen involuntarily. The Justice Department can secure a criminal conviction under 18 U.S.C. § 1425, which applies to anyone who “knowingly procures or attempts to procure, contrary to law, the naturalization of any person.” In addition to carrying a possible prison term of up to 25 years, such a conviction automatically results in denaturalization pursuant to 8 U.S.C. § 1451(d).

The other path—the subject of the Shumate memorandum—is for the Justice Department to file a civil suit under 8 U.S.C. § 1451(a) alleging that citizenship was “illegally procured” or was “procured by concealment of a material fact or by willful misrepresentation.” Citizenship is “illegally procured” if the citizen obtained citizenship despite not meeting the statutory requirements. For example, a person who committed a criminal act that demonstrates they lacked the “good moral character” that is required for naturalization, yet who was naturalized anyway, has illegally procured naturalization—even absent any effort to hide that act during the naturalization process.

The inclusion of denaturalization in the Shumate memorandum should come as no surprise: President Trump’s flurry of first-day executive orders provided a preview. An order titled “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats” included a provision directing relevant federal agencies to “[e]nsure the devotion of adequate resources to identify and take appropriate action for offenses described in 8 U.S.C. 1451”—the civil denaturalization statute. While it received some attention, this instruction largely flew under the radar amid the onslaught of administration actions in its opening days.

There are significant differences between the civil and criminal routes. First, a civil suit of this nature is tried before a judge, not a jury. Second, a criminal defendant is entitled to a lawyer, whereas a civil defendant is not. Third—perhaps most important—the civil statute provides no statute of limitations, whereas an indictment under the criminal statute must be filed within 10 years of the offense. Thus, the Justice Department can reach back decades in search of grounds to denaturalize a citizen via civil suit.

Interestingly, the government’s burden of proof—typically a key difference between criminal and civil suits—is not a distinction here. Because of the drastic consequences of denaturalization, the Supreme Court has interpreted the civil denaturalization statute to require “clear, convincing, and unequivocal evidence which does not leave the issue in doubt”—a higher standard than the preponderance of the evidence, which generally applies in civil litigation. The Justice Department has suggested that this standard “is substantially identical with that required in criminal cases—proof beyond a reasonable doubt.”

The Shumate memorandum states that “[t]he Civil Division shall prioritize and maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence.” The memorandum then lists 10 “categories of priorities for denaturalization,” which seems to be in tension with the pledge to “maximally pursue denaturalization proceedings in all cases.” The categories include national security risks, human rights violators, and persons who committed particularly egregious specified crimes. The final category is a loophole big enough to drive a truck through: “Any other cases referred to the Civil Division that the Division determines to be sufficiently important to pursue.” To hammer home the point, the memo adds, redundantly, that “the Civil Division retains the discretion to pursue cases outside of these categories as it determines appropriate.”

To state the obvious: There is zero reason to give the benefit of the doubt to this administration, especially in the realm of immigration. There is every reason to suspect that the administration may intend to apply these statutes to the hilt. The staggering sums Congress just allocated to the Department of Homeland Security via the reconciliation bill may provide further ability to maximally investigate possible denaturalization cases. And Trump has already weaponized the immigration laws to go against perceived ideological enemies, including a bevy of students who participated in protests against Israel’s actions in Gaza or who otherwise engaged in pro- Palestinian speech.

Indeed, in one case the government has been pursuing a Gaza protester on grounds very similar to the denaturalization statutes. The administration targeted Mahmoud Khalil—not a citizen but a lawful permanent resident—due to his role in anti-Israel protests at Columbia University. The original charge against him, relying on a statute of dubious constitutionality, was that Secretary of State Marco Rubio had personally determined that his mere presence in the United States “would have potentially serious adverse foreign policy consequences and would compromise a compelling U.S. foreign policy interest.” Subsequently—in an apparent attempt to forestall a First Amendment challenge—the government added a claim that he should be removed from the United States because he had intentionally misrepresented facts in procuring his green card. After three months behind bars, Khalil is free on bail, but deportation proceedings continue.

Stripping political dissenters of their citizenship is far from a new issue. Anarchist activist Emma Goldman, an immigrant from the Russian Empire who had gained citizenship through marriage, is likely the first and most famous such victim. Searching for a way to neutralize Goldman, the government discovered that her by-now-ex-husband had been naturalized at age 16, in violation of a requirement that he be a legal adult at the age of naturalization. Because her acquisition of citizenship had depended on her husband’s citizenship, his denaturalization stripped her citizenship as well—even though their marriage (and divorce) had occurred decades earlier. After passage of the Alien Anarchists Exclusion Act of 1918, Goldman was arrested and deported to Russia.

Subsequent decades saw further political denaturalizations—as well as nonpolitical ones—including denaturalizations based on Nazi or communist affiliations. The flow slowed to a trickle in 1967 when the Supreme Court decided Afroyim v. Rusk, which invalidated a statute that revoked citizenship for anyone who voted in a foreign election. The Court held that “the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race.” The Court noted that Congress could strip citizenship following “the voluntary renunciation or abandonment by the citizen himself” or where naturalization was “unlawfully procured.” The second proviso is what enables the administration to pursue its current efforts. (The first proviso recently made news when some observers wondered whether Pope Leo XIV would lose his citizenship by becoming the Vatican head of state. The answer is no, unless he renounces it.)

A 2012 history of denaturalizations noted that 22,000 citizens were denaturalized between 1907 and 1967, when Afroyim was decided—but fewer than 150 since then. The post-Afroyim denaturalizations included former Nazi concentration camp guards who obtained citizenship by lying about their past—perhaps the least controversial use of denaturalization statutes.

The issue took on a second life during the Obama administration, when the government discovered that a failure to upload fingerprint records in the 1990s to a central database had allowed some previously deported persons to obtain naturalization. The Department of Homeland Security stood up Operation Janus to investigate further, and a 2016 Department of Homeland Security Inspector General report determined that at least 858 previous deportees had received citizenship under a different identity. The first Trump administration expanded this effort, which received attention at the time but did not result in a massive wave of deportations. (According to a February 2020 news story, the Justice Department filed fewer than 100 denaturalization cases in the first three years of Trump’s presidency.) It did, however, lead to civil denaturalization efforts that, in one case, resulted in a default judgment against a person who apparently had no knowledge of the court case against him. Another case targeted a 63-year-old grandmother who had lived in Florida for 28 years but had taken a plea deal in connection with having prepared paperwork, as a secretary, for an exporter who fraudulently obtained loans from the U.S. Export-Import Bank. The Biden administration, by contrast, apparently did not prioritize denaturalization to any extent.

Shortly after Shumate issued his memorandum, a Republican member of Congress urged that the Justice Department file a civil suit to strip New York City mayoral candidate Zohran Mamdani of his citizenship. Rep. Andy Ogles (R-Tenn.) posted on X a letter that he claimed to have sent to Attorney General Pam Bondi. In the letter, Ogles cited a report that Mamdani had released a rap track in 2017 whose lyrics included “My love to the Holy Land Five/ You better look ’em up.” The “Holy Land Five” is a common shorthand for five former leaders of the Holy Land Foundation for Relief and Development who were indicted in 2004 for allegedly funneling millions of dollars to Hamas. After a 2007 mistrial, they were convicted in 2008 on charges that included providing material support to terrorists. Some supporters maintain that the trial was not fair and that the Holy Land Five were unjustly convicted. In his letter to Bondi, Ogles wrote:

While I understand that some may raise First Amendment concerns about taking legal action based on expressive conduct, such as rap lyrics, speech alone does not preclude accountability where it reasonably suggests underlying conduct relevant to eligibility for naturalization. If an individual publicly glorifies a group convicted of financing terrorism, it is entirely appropriate for federal authorities to inquire whether that individual engaged in non-public forms of support-such as organizational affiliation, fundraising, or advocacy that would have required disclosure on Form N-400 or during a naturalization interview.

 

The naturalization process depends on the good-faith disclosure of any affiliation with, or support for, groups that threaten U.S. national security. If Mr. Mamdani concealed relevant associations, that concealment may constitute a material misrepresentation sufficient to support denaturalization under federal law.

Given the president’s penchant for vengeance, his eagerness to deploy the Justice Department against his perceived enemies, and his administration’s willingness to go to bat for one of Mamdani’s opponents, incumbent Mayor Eric Adams, it would not shock if he instructed the Justice Department to pursue Mamdani, about whom he recently declared “a lot of people are saying he’s here illegally.” Trump would be unlikely to stand down even if, as is probable, the department doubted its ability to prove in a civil suit that Mamdani’s citizenship was “procured by concealment of a material fact or by willful misrepresentation.” (For one thing, if Mamdani name-checked the Holy Land Five because he believed they were wrongly convicted, failure to disclose obviously would not constitute material concealment or misrepresentation.) Trump might even double down and instruct the department to seek a criminal indictment.

Or, in light of his repeated smears of Mamdani as a “communist,” Trump could order the Justice Department to try to find evidence to support that claim. If Mamdani had been a member of a communist organization at any point in the 10 years preceding his naturalization, a Cold War-era statute would have prohibited his naturalization and he would be eligible for denaturalization under 8 U.S.C. § 1451. Indeed, Section 1451 includes a subsection of dubious constitutionality that requires a court to consider membership in a communist organization at any point in the five years after naturalization to constitute “prima facie evidence that such person was not attached to the principles of the Constitution of the United States and was not well disposed to the good order and happiness of the United States at the time of naturalization and, in the absence of countervailing evidence,” to suffice to revoke his citizenship.

It does not seem at all likely that Mamdani could lawfully be denaturalized for any of the reasons discussed above, or for any other reason. (Did you know that, as a Bowdoin College sophomore, he once improperly “borrowed” a dormitory table?) And stripping citizenship from Mamdani, who was brought to this country by his parents at age eight, would not force him to leave the country. A person who loses naturalization reverts to the immigration status he held before obtaining citizenship—Mamdani would become a lawful permanent resident once again. But due to a New York state law requiring that officeholders be citizens, he would be ineligible to be mayor of New York City. And that might be enough to inspire Trump and the Justice Department to try.

Mamdani is not the only prominent naturalized citizen who might find himself in the administration’s crosshairs. Asked by a reporter whether he would consider deporting Elon Musk in light of their on-again, off-again feud, Trump said, “We’ll have to take a look.” According to an October 2024 Washington Post report, Musk was working illegally at the time he built his first company, having entered the country on a student visa. The Post quoted an immigration law expert as saying that if Musk had come clean about his illegal employment, it would have been “highly unlikely” that his subsequent applications—for a work visa, to become a lawful permanent resident, and eventually for citizenship—would have been approved. (Another famous naturalized citizen who reportedly worked illegally is likely safe: Her husband is the president.)

To be sure, there is a First Amendment interest in not being subject to immigration enforcement based on one’s beliefs or statements—including, of course, one’s opposition to the president. While First Amendment values are enforced more robustly now than in Emma Goldman’s time, it can be difficult to prove such a claim, especially if the government takes pains to conceal its true motives. (Rep. Ogles, despite the measured tone of his letter, took no steps to do so. In the X post to which he attached his letter to the attorney general, he wrote that “Zohran ‘little muhammad’ Mamdani is an antisemitic, socialist, communist who will destroy the great City of New York. He needs to be DEPORTED.”)

Civil denaturalization can have dire consequences for family members—as Goldman discovered. The civil denaturalization statute provides that a citizen who acquired citizenship through their parent or spouse is automatically denaturalized if citizenship is “procured by concealment of a material fact or by willful misrepresentation.” It does not, however, specify any consequences for family members of someone whose citizenship was “illegally procured,” and Department of Homeland Security guidance specifies that no family consequences follow in such cases. By contrast, the criminal denaturalization statute sets forth no consequences for family members who may have acquired citizenship through a person convicted of violating the statute—perhaps another reason why an administration inclined to inflict maximum pain on immigrants might turn to civil denaturalization.

Despite the vast potential for abuse, the denaturalization statutes do contain a key limitation: Any concealment, misrepresentation, or illegality in connection with the application for citizenship must have helped cause the application to be granted. If the government discovers that a citizen deliberately failed to disclose a parking ticket, it is extremely unlikely to be able to show that citizenship was “procured ... contrary to law” (the language of the criminal statute) or “procured by concealment of a material fact or by willful misrepresentation” (the civil statute). While this materiality requirement is explicit in only part of the civil statute, the Supreme Court has held that “the misrepresentation must also relate to a material fact.” Likewise, the Court has held that, in the context of the criminal statute, “procured ... contrary to law” means that:

the Government must establish that an illegal act by the defendant played some role in her acquisition of citizenship. When the illegal act is a false statement, that means demonstrating that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts warranting that result.

This limitation will benefit some defendants, but it would not have helped Emma Goldman. And it would not stop the government from launching an investigation for the purpose of harassing a naturalized citizen, hoping that a defendant will be unable to retain counsel, or aiming to get lucky before a rogue district court judge while anticipating reversal on appeal. In theory, the Justice Department could avail itself of a district court victory and detain a citizen while the appellate process plays out.

Other, more remote dangers lurk. If Congress attempts to broaden the scope of denaturalization, a Supreme Court that has shown little regard for precedent could conceivably overturn Afroyim. That case was a 5-4 decision that itself had overturned an earlier decision, Perez v. Brownell, that had been issued just nine years earlier. President Trump, who recently observed that “a lot of bad people” were “born in this country,” and suggested that “we ought to get them the hell out of here too”—including Rosie O’Donnell, with whom he has feuded for decades—might welcome such a development. (At the other extreme, some scholars have suggested that civil naturalization itself is unconstitutional, because the procedural protections provided via civil litigation are inadequate to protect the weighty interest the government seeks to take from the defendant. It seems unlikely that the Supreme Court as currently constituted will look favorably upon such an argument.)

As Emma Goldman wrote ruefully in a 1933 essay titled “A Woman Without a Country,” over a decade after her deportation from the United States:

To have a country implies, first of all, the possession of a certain guarantee of security, the assurance of having some spot you can call your own and that no one can alienate from you. That is the essential significance of the idea of country, of citizenship. Divested of that, it becomes sheer mockery.

A throughline of the Trump administration’s immigration policy is to deprive immigrants of the assurance of having some spot they can call their own. The extent to which the administration is able to extend that deprivation to citizens is yet to be seen. But it will be sure to terrify some naturalized citizens without cause and may dissuade others from naturalizing or coming to the United States in the first place. This is not a bug—it is a feature.