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.
Accessing Released Documents
Documents released can be viewed via the Open Society Foundations’ account on Document Cloud.
The Justice Initiative files a FOIA request with DHS and USCIS concerning ATLAS, an automated, rule-based screening platform that is used to screen immigration applications. Justice Initiative requests: the algorithm used by ATLAS; a list of all data elements broken down by type of immigration request; a list of all systems that provide data to or pass information through ATLAS; a list of instances of when race or ethnicity are permitted in screening; a list of considerations used to preserve the civil rights/liberties of individuals who undergo screening through ATLAS; the number of cases processed through ATLAS broken down by nationality and ethnicity.
Parties file the eleventh status report regarding ongoing discussions on FOIA processing and production.
President Biden issues Executive Order 14012 that requires the federal government to “review policies and practices regarding denaturalization and passport revocation to ensure that these authorities are not used excessively or inappropriately.”
The Justice Initiative files an amended complaint, adding the FBI and ICE to the case.
The Justice Initiative moves the Court to establish a briefing schedule for summary judgment motions given the U.S. governments’ consistent failure to provide regular search updates and produce documents. The court orders the parties to appear for oral hearing on September 14, 2020.
The Justice Initiative files a second FOIA request with EOUSA, the Federal Bureau of Investigations (FBI), DHS and the United States Immigration and Customs Enforcement (ICE).
The Justice Initiative and U.S. government enter into briefing schedule discussions to governing the progress of the case.
The U.S. government files its answer to Justice Initiative’s complaint noting that it is in possession and control of records responsive to Plaintiff’s FOIA request, but that all relief requested should be denied.
The Justice Initiative files a lawsuit under the Freedom of Information Act (“FOIA”) against the Department of Justice (“DOJ”) and Department of Homeland Security (“DHS”). Limited production provided by DOJ Civil Division. No production provided by DOJ Criminal Division and the Executive Office for United States Attorneys, nor by DHS.
DOJ announces the creation of a Denaturalization Section to investigate and litigate denaturalization cases.
DOJ Civil Division closes its production and notes it has additional items responsive to the Justice Initiative's FOIA, but refuses production.
The Justice Initiative submits modified request to DOJ Executive Office for United States Attorneys in an attempt to obtain a quicker response.
DOJ Civil Division provides the Justice Initiative with limited interim production.
The Justice Initiative submits a FOIA request to DOJ Civil Division, Criminal Division and the Executive Office for United States Attorneys, as well as DHS USCIS.