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: Final rule.

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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

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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 discretion 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 cause 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 Service 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 Sec. 340.11 as Sec. 340.2 and

changed the heading to distinguish the actions described therein from

those described in Sec. 340.1. In addition, it clarified the procedures

and guidelines for recommending institution of revocation proceedings

or criminal procedures. The proposed rule at Sec. 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 Immigration 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 Sec. 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 may 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 Sec. 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

Sec. 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

Sec. 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

Sec. 103.5a(a)(2).

[[Page 55552]]

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 Sec. 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 regulation 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 Sec. 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 Sec. 103.5a(a)(2) of this chapter. When personal service

is accomplished by certified or registered mail, return receipt

requested, but the notice is returned as undeliverable, the Service

shall serve the notice again, using one of the other methods of

personal service described in Sec. 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 penalties 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

Sec. 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 naturalization 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 Sec. 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 Sec. 340.1(b)(4)(ii) poses any due process problems.

As indicated in the discussion of Sec. 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 Sec. 340.1(b)(2), the

Service will serve the notice again using one of the methods of

personal service described in Sec. 103.5a(2). The Service 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.

[[Page 55553]]

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 has 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.

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 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 a naturalization application by a district

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

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

naturalization proceeding and revoke naturalization in accordance with

this section, if the Service obtains credible and probative evidence

which:

(1) Shows that the Service granted the application by mistake; or

(2) Was not known to the Service Officer during the original

naturalization proceeding; and--

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

naturalization; and

(ii) Would have proven that:

(A) The applicant's application was based on fraud or

misrepresentation or concealment of a material fact; or

(B) 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

applicant currently resides has jurisdiction to reopen proceedings

under this section, except that notice of intent to reopen

naturalization proceedings and to revoke naturalization must be served

no later than 2 years after the effective date of the order admitting a

person to citizenship, as determined under Sec. 337.9 of this chapter.

This section applies to any order admitting a person to citizenship

with an effective date before, on, or after October 24, 1996.

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

revoke naturalization. (i) 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 revoke

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.

(ii) 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 Sec. 103.5a(a)(2) of

this chapter. When personal service is accomplished by certified or

registered mail, return receipt requested, but the notice is returned

as undeliverable, the Service shall serve the notice again, using

another one of the methods of personal service 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 revoke 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 revoke 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 within sixty (60) days of service of this 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 revoke 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 revoke

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

section, that failure to respond will be deemed an admission of the

stated grounds for reopening and revoking naturalization.

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

during

[[Page 55554]]

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 revoke 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 revoke naturalization with proof of service to the

applicant;

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

application;

(4) The applicant's statement 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. (1) 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 revoke 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 or his or her attorney or representative, if applicable.

(2) Referral for revocation suit. Rather than reopening a

naturalization decision and revoking naturalization, the district

director shall refer a case for revocation proceedings under Sec. 340.2

if:

(i) The applicant's answer to the notice of intent to reopen a

naturalization proceeding and to revoke naturalization and any

additional evidence that the applicant submits raises a genuine factual

issue about the propriety of the applicant's naturalization, so that

resolution of the factual issue will depend on the credibility of

witnesses testifying under oath and subject to cross-examination; or

(ii) After rendering a decision on the merits, the district

director determines that the applicant had adequately rebutted the

allegations made in the notice of intent to reopen naturalization

proceedings and to revoke naturalization, but the district director

thereafter obtains additional evidence of at least one of the grounds

set forth in paragraph (a) of this section.

(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 initially with

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

notice of decision. Such appeal shall be filed in accordance with

Sec. 103.1 and Sec. 103.7 of this chapter, by filing the appeal on Form

I-290B with the fee. Appeals received after the 30-day period may be

subject to dismissal for failure to timely file.

(2) If, within 45 days of the filing of a notice of appeal, the

district director determines that the materials filed in support of the

appeal adequately rebut the grounds for reopening, the district

director may reconsider the decision to reopen the naturalization

application and to revoke naturalization, and affirm the original

decision naturalizing the applicant. In such a case, it is not

necessary for the district director to forward the case to the

Administrative Appeals Unit. If, after the district director affirms an

original naturalization grant under this paragraph, the Service obtains

additional evidence of the grounds set forth in paragraph (a) of this

section, the Service may not bring a new motion to reopen the

naturalization proceeding and to revoke naturalization, but may seek to

revoke the applicant's naturalization only pursuant to 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 final decision to reopen a naturalization proceeding and to revoke

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 revoke 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

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, and shall also notify the Department of State of the

revocation of naturalization.

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

naturalization proceedings and to revoke 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) Recommendations 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 Regional Director, 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.

[[Page 55555]]

Dated: October 15, 1996.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 96-27749 Filed 10-24-96; 4:00 pm]

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