Revocation of Naturalization [61 FR 55550] [FR 63-96]

DOCUMENT NUMBER: FR 63-96

FEDERAL REGISTER CITE: 61 FR 55550

DATE PUBLISHED: October 28, 1996

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 340

[INS No. 1634-93]

RIN 1115-AD45

Revocation of Naturalization

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This rule amends the Immigration and Naturalization Service (Service) regulations relating to revocation of naturalization under section 340 of the Immigration and Nationality Act (Act). This rule establishes an administrative process whereby a district director may reopen and reconsider applications for naturalization pursuant to section 340(h) of the Act. This rule will facilitate the transfer of naturalization authority contemplated by Congress from the courts to the Attorney General while retaining the protection for the individual provided under judicial naturalization.

EFFECTIVE DATE : October 24, 1996.

FOR FURTHER INFORMATION CONTACT: Jody Marten or Thomas Cook, Naturalization and Citizenship Services Branch, Adjudications Division, Immigration and Naturalization Service, 425 I Street, NW, Room 3214, Washington, DC 20536, telephone (202) 514-3240. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

Background

The Immigration Act of 1990 (IMMACT), Public Law 101-649, dated November 29, 1990, amended section 340 of the Act, Revocation of Naturalization, to bring the reopening process of section 340(i) of the Act into conformity with the change to Administrative Naturalization. That section, now designated 340(h), provides the Attorney General with the power to correct, reopen, alter, modify, or vacate an application granted under Administrative Naturalization. Such power had heretofore rested within the discreti on of the courts, which had held exclusive jurisdiction over naturalization prior to the enactment of IMMACT.

With the change to Administrative Naturalization brought about by IMMACT, however, courts no longer hold jurisdiction over naturalization applications. It is now the responsibility of the Service to receive applications for naturalization and conduct examinations to determine statutory eligibility for citizenship. Additionally, the Service renders formal determinations on grants and denials of applications for naturalization, and provides for administrative review of applications subject to denial for caus e before a final determination is made. Accordingly, Congress had amended section 340(i) of the Act to provide the Attorney General with the reopening power previously held by the courts.

In fact, the amendment to section 340(h) of the Act simply replaces the court's jurisdiction with that of the Attorney General, leaving the authority described in that statute unchanged. Taking this into account, the Service has developed a regulatory proposal that resembles the way courts conducted proceedings under the pre-amended section 340(i) of the Act. In developing the proposed rule, the Service relied upon Federal Rules of Civil Procedure 60(b) and related jurisprudence. On July 28, 1994, the Ser vice published a proposed rule in the Federal Register at 59 FR 38381 with request for comments by September 26, 1994, to provide a procedure for the Service to reopen administrative proceedings pursuant to section 340(h) of the Act, as amended. The proposed rule was structured in a manner that would facilitate the transfer of naturalization authority contemplated by Congress while protecting the individual's rights provided under judicial naturalization.

The proposed rule redesignated § 340.11 as § 340.2 and changed the heading to distinguish the actions described therein from those described in § 340.1. In addition, it clarified the procedures and guidelines for recommending institution of revocation proceedings or criminal procedures. The proposed rule at § 340.1(e)(2) was rewritten to clarify the appeal process to the district director with the referral to the Administrative Appeals Unit.

Discussion of Comments

The Service received comments from five individuals. Three of the commenters stated they were concerned about the 1-year deadline on re-opening of applications for naturalization. One commenter stated 1 year was not sufficient time if an applicant's fraudulent means of securing naturalization became apparent more than 1 year after being naturalized. Another commenter objected to the length of time of 1 year that the Service had to reopen a naturalization application, while the Executive Office for Immigr ation Review (EOIR) at the same time published regulations and provided the applicant only with 30 days in which to file a motion to reconsider a final administrative decision under 8 CFR 3.2. Another commenter raised concern for the due process rights of the applicant, and two commenters stated personal service was a fundamental fairness issue. The following is a summarized discussion of those comments and the Service's response.

Section 340.1(b)(1) Procedures for Reopening of Naturalization Proceedings

The Service proposed that the district director under whose jurisdiction the original naturalization proceeding took place has jurisdiction to reopen proceedings under this section. The notice of intent to reopen naturalization proceedings and to revoke naturalization must be served no later than 1 year after the effective date of the order admitting a person to citizenship, as

determined under § 337.9 of this chapter.

One commenter suggested that, in requiring service of a notice of intent to reopen naturalization and deny naturalization within 1 year of the original naturalization decision, the Service had adopted too narrow a reading of its authority under section 340(h). He stated grounds for naturalization revocation may become known after the 1-year time frame. For example, terrorists and other persons who may have committed criminal and terrorist acts which would have rendered them ineligible for naturalization ma y come to the Service's attention more than 1 year after naturalization. He pointed out by limiting administrative reopening to 1 year, the Service is prevented from revoking naturalization in these situations.

The Service believes the 1-year period for reopening a naturalization case and filing a notice of intent to revoke naturalization does not provide sufficient time if the applicant's fraudulent means of securing naturalization become apparent more than 1 year after being naturalized. The Service believes the 1-year rule imposes a limitation on the exercise of the Attorney General's authority that is not required by statute.

Furthermore, the Service found that extending the 1-year time limit to 2 years still has the effect of keeping the number of reopenings to actions truly corrective in nature and maintains the original intent of this regulation. The Service does not intend the reopening process to be used in cases requiring extensive investigation of possible grounds for revocation. The Service views the reopening proceedings as more of a corrective measure, as opposed to a simplified alternative to revocation proceedings under section 340(a) of the Act. If evidence of any of the above-listed grounds is obtained after 2 years from the time naturalization vested, or investigation of possible grounds for reopening extends beyond such period, the Service must forego administrative reopening and proceed with judicial revocation proceedings under section 340(a) of the Act.

The Service also changed the jurisdiction from that of the district office where the original naturalization took place to the district office having jurisdiction over the naturalized person's last known place of residence in the United States to make the jurisdiction consistent with § 340.2. The Service also changed the language from the proposed regulation from notice of intent to deny to notice of intent to revoke naturalization. Although the naturalized applicant has been served a notice of intent to reopen naturalization proceedings, he or she remains a citizen until the Service revokes naturalization.

Section 340.1(b)(2) Notice of Intent To Reopen Naturalization Proceedings and To Revoke Naturalization

The proposed rule states that if the district director determines that reopening a naturalization proceeding is warranted under § 340.1(a), he or she shall prepare a written notice of intent to reopen naturalization proceedings and to revoke naturalization. The notice shall advise the applicant of his or her right to submit a response to the notice and to request a hearing, as provided in § 340.1(b)(3). The Service is further obligated to serve the notice of intent to reopen naturalization proceedings and to revoke naturalization upon the applicant by personal service, as described in § 103.5a(a)(2).

Two commenters stated that personal service on the newly naturalized citizen was an absolute prerequisite for reopening naturalization proceedings.

One commenter said the Service should require personal service as described by § 103.5a(a)(2) because it is less restrictive than unspecified personal service under 8 CFR 246.1 for rescission. He also said that the Service should send certified letters with return receipt requested. The commenter stated this requirement should be the same as that required for service of an order to show cause, i.e., to be the individual's last known address. Two of the commenters stated that, in general, the proposed reg ulation would place the citizen and former alien in the same position as a lawful permanent resident alien, or a person with less standing. They stated that personal service is a fundamental tenet and prerequisite to due process.

In response to the comments, the Service has added a new paragraph (b)(2)(ii) to § 340.1, to clarify that the use of certified mail is a form of "personal service." It will read as follows: "The Service shall serve the notice of intent to reopen naturalization proceedings and to revoke naturalization upon the applicant by personal service, as described in § 103.5a(a)(2) of this chapter. When personal service is accomplished by certified or registered mail, return receipt requested, but the notice is retur ned as undeliverable, the Service shall serve the notice again, using one of the other methods of personal service described in § 103.5a(a)(2) of this chapter."

One of the commenters also stated the persons being naturalized should be advised that their naturalization could be revoked within 1 year of being naturalized. The Service believes there is no reason to provide additional notice regarding reopening of citizenship applications since the naturalization requirements and procedures are clearly stated in the regulations. In addition, upon applying for naturalization, the instructions for completing the Form N-400, Application for Naturalization, specify the p enalties for an applicant who knowingly and willfully falsifies or conceals a material fact or submits a false document. The applicant also signs under penalty or prejury that the application and evidence submitted with it are all true and correct.

Section 340.1(b)(3) Applicant's Opportunity To Respond and To Request Hearing

In this paragraph, the applicant may submit a response to the Service's notice of intent to reopen naturalization proceedings and to revoke naturalization within sixty (60) days. The applicant may request a hearing before an immigration officer, and must submit a written request for a hearing together with any statements and/or additional documents.

One commenter considered it unfair that the Service has 1 year in which to initiate naturalization proceedings, while the applicant is required to appeal a final decision within 30 days under the proposed EOIR regulations cited at 8 CFR 3.2. The commenter stated that this promotes the convenience of the Service rather than the fundamental fairness and justice to all parties to implement the Woodby standard of clear, convincing, and unequivocal evidence. See Woodby v. Immigration and Naturalization Service , 385 U.S. 276 (1966). The commenter contended that there is a greater onus on the applicant to provide evidence to rebut the Service's allegations. None of the other commenters addressed the time in which an applicant must respond to the Service's notice.

The Service believes that the 2-year period established in § 340.1(b)(1), for service of a notice of intent to reopen a naturalization proceeding and to revoke naturalization is well-founded, given Fed. R. Civ. P. 60(b) and the cases decided in the courts under section 340(h) before Congress vested this authority in the Attorney General. The EOIR regulation that the commenter relies on pertains to administrative practice before the Board of Immigration Appeals, and is not relevant to the reopening of a nat uralization proceeding under section 340(h).

Section 340.1(b)(4) Withdrawal of Application or Failure To Respond

The Service proposed that the applicant may submit a written statement admitting the facts which the district director alleges as grounds for reopening, and withdraw the application for naturalization. In addition, the applicant must sign the statement under oath or affirmation or certify the truth of the statement under penalty of perjury. If the applicant fails to submit a response to the notice of intent to reopen naturalization proceedings and to revoke naturalization within the period specified in § 340.1(b)(3), the applicant shall be considered to have admitted the grounds for reopening and to have withdrawn the application for naturalization.

In light of these consequences of failing to respond, two commenters felt personal service on the newly naturalized citizen was an absolute prerequisite for reopening naturalization proceedings.

One commenter said that failure to respond should constitute withdrawal only, not admission of grounds for revocation. He said preventing an alien from contesting deportability because of failure to respond unfairly penalizes the alien. Because the Service might not have to prove deportability by the Woodby standard, the commenter is concerned that the alien's right to due process is not properly protected. But an alien's admission of the allegations underlying a deportation charge is sufficient to meet the Woodby standard. Cf. Matter of Rodriguez-Majano, 19 I & N Dec. 811, 812 (BIA 1988). And treating a default as an admission is not unknown to the law. F. Rule Civ. P. 55. So long as the individual has notice of the allegations, and of the consequences of a failure to respond, the Service does not believe that § 340.1(b)(4)(ii) poses any due process problems.

As indicated in the discussion of § 340.1(b)(2), the Service believes it has resolved the due process issue, by not only recognizing use of certified or registered mail as a form of "personal service," but by providing further that the notice must be served anew if the certified or registered mail is returned as "undeliverable." In addition, in revising the last sentence of § 340.1(b)(2), the Service will serve the notice again using one of the methods of personal service described in § 103.5a(2). The Ser vice believes it has protected the applicant's due process rights by advising him or her of the procedures for appealing the notice of intent to revoke naturalization. Therefore, the final rule maintains that failure to respond will be deemed an admission of the stated grounds for reopening and denying naturalization.

Section 340.1(g)(3) Effect of Final Decision of Denial Upon Applicant's Status

The Service proposed that, when a decision to reopen naturalization proceedings and to revoke naturalization becomes final, the district director shall order the applicant to surrender his or her certificate of naturalization. The district director shall then cancel the certificate of naturalization.

One commenter stated that, in addition to the cancellation of the certificate of naturalization, the district director should order the applicant to surrender his or her certificate of naturalization and any U.S. passport in his or her possession. Then, the Service should notify the Department of State.

The Service believes that until a decision to reopen naturalization proceedings and to revoke naturalization becomes final, through failure to appeal or through exhaustion of all administrative and/or judicial appeals, the applicant remains a citizen of the United States. When the Service makes a final decision, the naturalization is rendered void ab initio and the applicant must surrender his or her certificate of naturalization for cancellation. The Service agrees that when an individual's citizenship h as been revoked, his or her U.S. passport should be canceled as well. Therefore, the district office having authority over the revocation will notify the Department of State, Passport Services, Washington, D.C., of the revocation of naturalization since the cancellation of a passport is within its authority.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that the rule will not have a significant impact on a substantial number of small entities because of the following factors. This rule proposes a procedure for the Service to reopen naturalization applications filed by individuals. The affected parties are not small entities, and the impact of the regulation is

not an economic one.

Executive Order 12866

This rule is considered by the Office of Management and Budget to be a "significant regulatory action" under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly, this rule has been reviewed by the Office of Management and Budget.

Executive Order 12612

The regulation adopted herein will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988

This rule meets the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988.