Open Society Justice Initiative v. the United States Department of Justice et al.

Freedom of Information Act (“FOIA”) complaint on the denaturalization of U.S. citizens

The Open Society Justice Initiative continues to seek disclosure of records regarding the U.S. government’s activities and policies on the use of criminal and civil denaturalization of U.S. citizens, the revocation of derivative citizenship of family members, and policies and practice concerning statelessness in relation to denaturalization. By revoking American citizenship through denaturalization, the government knowingly exposes affected individuals to the consequent deprivation of human rights, including the deprivation of nationality, resulting in statelessness, as well as potential permanent separation from family members.

The federal government’s practice of denaturalization: a matter of significant public interest

Denaturalization is the revocation of United States citizenship acquired by foreign nationals or formerly stateless persons through naturalization. For many Americans, losing their United States citizenship means losing their only nationality. For instance, this may happen if at the time of naturalization the citizen was stateless (i.e. not considered a citizen by any country under the operation of its law) or if the citizen forfeited a former citizenship due to a country’s laws prohibiting dual nationality or disallowing absence from the country for a defined period of time.

Denaturalization became a legal possibility following the adoption of the 1906 Nationalization Act. Over the years, both law and policy has largely narrowed its application, reserving denaturalization for rare and exceptional cases—i.e. former Nazis and other war criminals attempting to evade prosecution by hiding out in the United States under false pretenses. Recent reporting and statements made by Trump administration officials indicate that the use of denaturalization is expanding in both scope and quantity. There are two distinct methods by which to denaturalize naturalized U.S. citizens—under the civil statute 8 U.S.C. § 1451 (Revocation of naturalization) or under the criminal statute 18 U.S.C. § 1425 (Procurement of citizenship or naturalization unlawfully). According to the limited information released to the Justice Initiative under the FOIA by DOJ Civil, between 2017 and 2018, three times as many civil denaturalization cases were filed as compared to the combined average of all administrations dating back to Nixon. The number of criminal denaturalization cases filed has not been publically released by the government.

Between 2008 and 2016, DHS implemented Operation Targeting Groups of Inadmissible Subjects, which later became Operation Janus, and sought to identify individuals it believed had improperly obtained an immigration benefit (e.g., legal permanent resident status; US citizenship). Currently, Operation Second Look—an initiative of Homeland Security Investigations, an investigatory division of DHS—is underway to “address leads received from Operation Janus” as well as review an estimated 700,000 files. In January 2018, USCIS stated that it had “dedicated a team to review…Operation Janus cases” and intended to refer approximately 1,600 cases to the DOJ for prosecution. In recent denaturalization cases, the DOJ and USCIS have issued press releases noting that these agencies are actively and vigorously targeting additional individuals for denaturalization. A large portion of a 2017 US Attorney Bulletin focused on the use of denaturalization, noting the DOJ’s “renewed commitment to criminal immigration enforcement” and a “greater focus on prosecuting cases of unlawful procurement of citizenship.”

The Open Society Justice Initiative’s FOIA request

On December 21, 2018, the Open Society Justice Initiative filed a FOIA request with the Civil and Criminal Divisions of the United States Department of Justice (“DOJ”), the Executive Office for United States Attorneys (“EOUSA”), and United States Citizenship and Immigration Services (“USCIS”). Within the statutory time limit required under FOIA, USCIS, EOUSA, DOJ Criminal Division and DHS have not substantively responded to the FOIA request and failed to produce any documents. Moreover, DOJ Civil Division has failed to produce the vast majority of documents responsive to the request, producing a mere four documents as an interim response. On March 11, 2020, the Open Society Justice Initiative filed suit in the United States District Court for the District of Columbia, arguing that the agencies had violated the FOIA and the Administrative Procedure Act (“APA”).

Defendant agencies are blatantly violating the FOIA and the APA by: failing to disclose responsive agency records (FOIA, 5 U.S.C. § 552 and 6 C.F.R. § 5.6 (c)); failing to conduct an adequate search of agency records (FOIA, 5 U.S.C. § 552); and failing to respond to the request for agency records (APA, 5 U.S.C. §§ 706 (1) and (2)). The Open Society Justice Initiative is legally entitled to receive the documents sought in its FOIA request. Moreover, the public is entitled to the information contained therein regarding the United States government’s denaturalization policies in light of the ongoing public interest in it and consequences of denaturalization for individuals and their families. As a result, the complaint seeks injunctive relief to compel defendant agencies to respond to the FOIA request, conduct a thorough search for all responsive records, and provide all of the requested documents.

Open Society Justice Initiative Involvement

The Open Society Justice Initiative is plaintiff and co-counsel in the case.