[Federal Register Volume 61, Number 209 (Monday, October 28, 1996)]
[Rules and Regulations]
[Pages 55550-55555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27749]
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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
[[Page 55551]]
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]
BILLING CODE 4410-10-M
