Revocation of Naturalization

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: Proposed rule.

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summary: This proposed rule would amend the regulations of the

Immigration and Naturalization Service (Service) relating to revocation

of naturalization under section 340 of the Immigration and Nationality

Act (Act). Specifically, this rule proposes an administrative process

whereby a district director may reopen and reconsider applications for

naturalization pursuant to section 340(i) of the Act. The purpose of

this rule is to facilitate the transfer of naturalization authority

contemplated by Congress while retaining the protection for the

individual provided under judicial naturalization.

dates: Written comments must be submitted on or before September 26,

1994.

addresses: Please submit written comments in triplicate, to the Record

Systems Division, Director, Policy Directives and Instructions Branch,

Immigration and Naturalization Service, 425 I Street NW., Room 5307,

Washington, DC 20536. To ensure proper handling, please reference INS

No. 1634-93 on your correspondence.

for further information contact: Ron Chirlin, Senior Immigration

Examiner, Naturalization and Special Projects Branch, Adjudications

Division, Immigration and Naturalization Service, 425 I Street NW.,

Room 3214, Washington, DC 20536, Telephone: (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

The purpose of this proposed rule is to provide a procedure for the

Service to reopen administrative naturalization proceedings pursuant to

section 340(i) of the Act, as amended by the Immigration Act of 1990,

(IMMACT), Public Law 101-649, dated November 29, 1990. Congress 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 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 discretion of the courts, which

had held exclusive jurisdiction over naturalization prior to the

enactment of IMMACT.

Section 340 of the Act sets forth the requirements and procedure

for revoking an order of naturalization. In this statute, Congress has

given the Attorney General two distinct avenues by which to set aside

an order of naturalization. Section 340(a) provides that the United

States Attorney may institute revocation proceedings in Federal court

based on the ground that naturalization was procured by concealing or

misrepresenting a material fact or by illegality. The United States

Attorney may institute such proceedings at any time based on an

affidavit of good cause prepared by the Service. The purpose of

revocation proceedings under section 340(a) of the Act is to set aside

an order of naturalization and to cancel a certificate of

naturalization. The burden rests with the Government to establish that

naturalization should be revoked.

Alternatively, section 340(i) allows for reopening of orders of

naturalization. Prior to amendment by IMMACT, section 340(i) permitted

a court to reopen naturalization proceedings before expiration of the

term of court. The Government would move, pursuant to Federal Rule of

Civil Procedure 60(b), to seek the court's reopening and

reconsideration of a naturalization petition, usually on the grounds of

fraud, mistake, or in light of new, previously undiscoverable evidence.

If the court granted the Service's motion, it would reopen

naturalization proceedings and render a new decision on the petition

for naturalization. The burden remained upon the petitioner to

establish eligibility for naturalization. Section 340(i) was viewed as

a means to ensure that courts would not be restricted in their power to

consider motions made pursuant to applicable rules of civil procedure.

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 cause before a final determination is made. It

follows therefore that Congress has amended section 340(i) of the Act

to provide the Attorney General with the reopening power previously

held by the courts.

The IMMACT's amendment to section 340(i) 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 attempted to develop a regulatory framework

that resembles the way in which courts conducted proceedings under the

pre-amended section 340(i) of the Act. To this end, the Service has

relied upon Fed. R. Civ. P. 60(b) and related jurisprudence. In so

doing, the Service believes that the proposed framework will facilitate

the transfer of naturalization authority contemplated by Congress,

while retaining the protection for the individual provided under

judicial naturalization.

The Proposed Rule

The Service proposes to add to Title 8 of the Code of Federal

Regulations a new Sec. 340.1, which sets forth the process for

reopening naturalization applications pursuant to section 340(i) of the

Act. Under this proposed rule, the Service's power to reopen would be

limited to situations where the Service obtains evidence, unavailable

during the original naturalization proceeding, that it granted

naturalization by mistake, that the applicant procured naturalization

by fraud or misrepresentation, or that the applicant was not in fact

eligible for naturalization. In determining when reopening of

naturalization is appropriate, the Service found instructive the

grounds described in Fed. R. Civ. P. 60(b), as that provision codified

the common-law concept that courts have the authority to relieve a

party of a final judgment for the reasons described above. Moreover,

there exists a developed body of administrative and judicial case law

for reopening on these grounds.

In 8 CFR 340.1(b), the Service proposes that notices of intent to

reopen naturalization proceedings under section 340(i) of the Act be

served on the affected party no later than 1 year from the time

naturalization vested. The Service found that setting a 1-year time

period for such action would assist in keeping reopenings limited to

actions truly corrective in nature, as the Service does not intend the

reopening process to be used in cases requiring extensive investigation

of possible grounds for revocation.

Section 340.1(b) also proposes notice and response requirements for

administrative reopening of naturalization applications. The Service

proposes that the district director who originally granted the

naturalization proceedings pursuant to this regulation. The proposed

regulation also provides that the applicant be personally served with

notice of intent to reopen naturalization proceedings and to deny

naturalization. The Service must include with the notice all evidence

upon which the intended reopening is based. The proposed regulation

further provides that the applicant must be given sixty (60) days

during which to respond to the notice, as well as the opportunity to

submit any evidence in support of the naturalization application. The

applicant may also request an informal, nonadversarial hearing to

present evidence in response to the notice of intent to reopen

naturalization proceedings, and to challenge the grounds for reopening

alleged by the district director. The proposed regulations provide that

the applicant, in lieu of responding to the notice of intent to reopen

naturalization proceedings, may also elect to withdraw the

naturalization application which the district director intends to

reopen. The applicant may do so either in writing, or by failing to

respond in any way to the notice.

Section 340.1(c) describes the evidence that the district director

must consider when rendering a decision on whether to reopen

proceedings and deny the naturalization application. Because a reopened

naturalization application is treated as a continuation of the original

naturalization proceedings, the burden rests with the applicant to

establish eligibility for naturalization. The district director's

decision to reopen the naturalization application must reflect that he

or she has considered all evidence of record relating to the

naturalization application. Because the Service recognizes the need to

provide the applicant with a prompt adjudication on whether the

application will be reopened and denied, the regulation at

Sec. 340.1(d) proposes that such decision must be rendered no later

than 180 days after service of the notice of intent to reopen

naturalization proceedings and to deny naturalization.

Section 340.1(e) proposes that the applicant may seek

administrative appeal of a district director's adverse decision. If the

district determines, however, after examining the evidence of record,

that reopening is inappropriate, the Service must forego further

investigative action under section 340(i) of the Act, but may pursue

plenary revocation action under section 340(a) of the Act. All

administratively final decisions under this proposed rule are subject

to judicial review in Federal court.

The Service wishes to point out that until a decision to reopen

naturalization proceedings and to deny 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. Once a decision adverse to the applicant becomes final,

however, the naturalization is rendered void ab initio and the

applicant must surrender his or her certificate of naturalization for

cancellation.

This rule proposes to redesignate Sec. 340.11 as Sec. 340.2 and to

change the heading to distinguish the actions described therein from

those described in Sec. 340.1. The Service also proposes changes in the

language and format of redesignated Sec. 340.2 to clarify the

recommendation procedures and requirement set forth in that section.

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 economic 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 not considered by the Department of Justice,

Immigration and Naturalization Service, to be a ``significant

regulatory action'' under Executive Order 12866, Sec. 3(f), Regulatory

Planning and Review, and the Office of Management and Budget has waived

its review process under section 6(a)(3)(A).

Executive Order 12612

The regulations proposed 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 12606

The Commissioner of the Immigration and Naturalization Service has

certified that she has assessed this rule in light of the criteria in

Executive Order 12606 and has determined that this rule will not have

an impact on family formation, maintenance, or general well-being.

List of Subjects in 8 CFR Part 340

Citizenship and naturalization, Law enforcement.

Accordingly, part 340 of chapter I of title 8 of the Code of

Federal Regulations is proposed to be amended as follows:

PART 340--REVOCATION OF NATURALIZATION

1. The authority citation for part 340 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1443.

2. A new Sec. 340.1 is added to read as follows:

Sec. 340.1 Reopening of naturalization application by district

director pursuant to section 340(i) of the Act.

(a) Reopening, general. On its own motion, the Service may reopen a

naturalization proceeding and deny naturalization in accordance with

this section, if the Service obtains credible and probative evidence

which:

(1) Was not available during the original naturalization

proceeding;

(2) Would have had a material effect on the outcome of the original

naturalization proceeding; and

(3) Which tends to prove that:

(i) The Service granted the application by mistake;

(ii) The applicant procured naturalization by fraud or

misrepresentation; or,

(iii) The applicant was not in fact eligible for naturalization.

(b) Procedure for reopening of naturalization proceedings.

(1) Jurisdiction. The district director under whose jurisdiction

the original naturalization proceeding took place has jurisdiction to

reopen proceedings under this section, except that notice of intent to

reopen naturalization proceedings and to deny naturalization must be

served no later than 1 year after the effective date of the order

admitting a person to citizenship, as determined under Sec. 337.9 of

this chapter.

(2) Notice of intent to reopen naturalization proceedings and to

deny naturalization. If the district director determines that reopening

a naturalization proceeding is warranted under paragraph (a) of this

section, the district director shall prepare a written notice of intent

to reopen naturalization proceedings and to deny naturalization. The

notice shall describe in clear and detailed language the grounds on

which the district director intends to reopen the proceeding. The

notice shall include all evidence which the district director believes

warrants reopening of the proceeding. 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 paragraph (b)(3) of this section. The

Service shall serve the notice of intent to reopen naturalization

proceedings and to deny naturalization upon the applicant by personal

service, as described in Sec. 103.5a(a)(2) of this chapter.

(3) Applicant's opportunity to respond and to request hearing.

(i) Within sixty (60) days of service of the notice of intent to

reopen naturalization proceedings and to deny naturalization, the

applicant may submit a response to the Service. The response may

include any statements and/or additional evidence the applicant wishes

to present in response to the proposed grounds for reopening.

(ii) The applicant may request a hearing on the notice of intent to

reopen naturalization proceedings and to deny naturalization before an

immigration officer authorized to review naturalization applications

under sections 310 and 335 of the Act. The applicant must submit a

written request for a hearing together with any statements and/or

additional evidence described in paragraph (b)(3)(i) of this section

within sixty (60) days of service of the notice. The Service shall

schedule a requested hearing as soon as practicable.

(4) Withdrawal of application or failure to respond.

(i) Upon receipt of the notice of intent to reopen naturalization

proceedings and to deny naturalization, the applicant may submit a

written statement admitting the facts which the district director

alleges as grounds for reopening, and withdrawing the application for

naturalization. The applicant shall sign the statement under oath or

affirmation or shall certify the truth of the statement under penalty

of perjury.

(ii) If the applicant fails to submit a response to the notice of

intent to reopen naturalization proceedings and to deny naturalization

within the period specified in paragraph (b)(3) of this section, the

applicant shall be considered to have admitted the grounds for

reopening and to have withdrawn the application for naturalization.

(5) Right to counsel. The applicant may be represented at any time

during reopening proceedings by an attorney or other representative

qualified under part 292 of this chapter.

(6) Burden of proof. Upon service of a notice of intent to reopen

naturalization proceedings and to deny naturalization, the applicant

bears the burden of persuading the district director that,

notwithstanding the evidence described in the notice, the applicant was

eligible for naturalization at the time of the order purporting to

admit the applicant to citizenship.

(c) Record of reopened proceedings. The record shall include, but

is not limited to:

(1) The applicant's application for naturalization;

(2) The Service's notice of intent to reopen naturalization

proceedings and to deny naturalization with proof of service to the

applicant;

(3) All evidence forming the basis for reopening the naturalization

application;

(4) The applicant's statements and/or evidence in response to the

Service's notice and in support of the application; and

(5) The record of the hearing, if a hearing was held.

(d) Decision. The district director shall render a written decision

on the reopened naturalization application within 180 days of service

of the notice of intent to reopen naturalization proceedings and to

deny naturalization. The decision shall consist of findings of fact,

conclusions of law, and a final determination on the naturalization

application. Notice of decision shall be served on the applicant and

his or her attorney or representative.

(e) Appeals. (1) The applicant may appeal an adverse decision under

paragraph (d) of this section to the Office of Examinations,

Administrative Appeals Unit. Any appeal shall be filed with the

district director within thirty (30) days after service of the notice

of decision. Appeals received after the 30-day period has tolled may be

subject to dismissal for failure to timely file.

(2) If, after reviewing the record, the district director

determines that the applicant has adequately rebutted the grounds for

reopening but, after such determination, obtains additional evidence of

the grounds set forth in paragraph (a) of this section, the Service may

not seek further action regarding reopening of the application, but

instead may pursue revocation proceedings under section 340(a) of the

Act.

(f) Judicial review. If a decision of the Office of Examinations,

Administrative Appeals Unit, is adverse to the applicant, the applicant

may seek judicial review in accordance with section 310 of the Act.

(g) Effect of final decision of denial upon applicant's status. (1)

A decision to reopen a naturalization proceeding and to deny

naturalization shall be effective as of the date of the original order

purporting to admit the applicant to citizenship. The order purporting

to admit the applicant to citizenship shall then have no legal effect.

(2) A district director's decision to reopen naturalization

proceedings and to deny naturalization will be final, unless the

applicant seeks administrative or judicial review within the period

specified by law or regulation.

(3) When a decision to reopen naturalization proceedings and to

deny 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.

(4) Notwithstanding the service of a notice of intent to reopen

naturalization proceedings and to deny naturalization, the applicant

shall be considered to be a citizen of the United States until a

decision to reopen proceedings and deny naturalization becomes final.

(h) Applicant's request for reopening or modification of

application. After having been granted naturalization and administered

the oath of allegiance and renunciation, an applicant may move that the

Service reopen his or her naturalization application for the purpose of

amending the application in accordance with Sec. 334.5 of this chapter.

Sec. 340.11 [Redesignated as Sec. 340.2 and revised]

3. Section 340.11 is redesignated as Sec. 340.2 and is revised to

read as follows:

Sec. 340.2 Revocation proceedings pursuant to section 340(a) of the

Act.

(a) Recommendation for institution of revocation proceedings.

Whenever it appears that any grant of naturalization may have been

illegally procured or procured by concealment of a material fact or by

willful misrepresentation, the facts shall be reported to the district

director having jurisdiction over the naturalized person's last known

place of residence in the United States. If the district director is

satisfied that a prima facie case exists for revocation pursuant to

section 340(a) of the Act, he or she shall report the facts in writing

to the Assistant Commissioner, Adjudications, with a recommendation

regarding the institution of revocation proceedings.

(b) Recommendation for criminal prosecution. If it appears to the

district director that a case described in paragraph (a) of this

section or one in which a final decision has been reached under

Sec. 340.1(g) is amenable to criminal penalties under 18.U.S.C. 1425

for unlawful procurement of citizenship or naturalization, the district

director may present such facts to the appropriate United States

Attorney for possible criminal prosecution.

(c) Reports. It shall be the responsibility of the district

director to advise the Service office that originated the information

upon which the revocation inquiry is based about the progress of the

investigation, and report the findings of the inquiry as soon as

practicable.

Dated: May 19, 1994.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 94-18370 Filed 7-27-94; 8:45 am]

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