For 10 years, U.S. Immigration and Customs Enforcement’s investigative office has worked to keep its internal handbook out of American courts. The handbook could have been used in court to show how ICE’s push to lead on denaturalization cases stands in contrast to the language of federal law governing the process, an immigration lawyer said. “We could have used it as an exhibit in a motion to dismiss” in previous denaturalization cases, said Philip Smith, an immigration attorney from Portland, Oregon, noting the contrast.
The handbook, which was issued on January 15, 2008, and published Wednesday by the independent media outlet Unicorn Riot, makes clear that the priority for ICE’s investigative division, Homeland Security Investigations, or HSI, in denaturalization proceedings is to use the most efficient means possible to fulfill a single-minded goal: leveraging the bureaucratic process to strip citizenship from naturalized Americans.
“Their objective is to inflict the most pain as possible, as efficiently as possible.”
“It’s a manual for the worst outcome” with respect to investigation targets, said Alaska immigration lawyer Margaret Stock in an interview on Tuesday. That’s not unique to ICE, Stock added — it’s how the entire U.S. justice system operates. “Their objective is to inflict the most pain as possible, as efficiently as possible,” Stock said. “They feel they’re doing their job correctly if the government wins — not if justice is done.”
The 20-page manual instructs agents on the particulars of denaturalization investigations. Documents obtained by the Freedom of Information Act-driven clearinghouse Government Attic indicate that the denaturalization investigations handbook was used through at least 2016; the handbook appears in the table of contents for HSI’s 2016 Special Agent’s Manual, sandwiched between chapters on cybercrime and fraud. “There’s no reason to believe the document is not authentic,” said Matthew Bourke, a public affairs officer with ICE. “ICE-HSI does manage a special agent handbook on denaturalization investigations.”
Last year, The Intercept obtained and reported on HSI’s guidelines for asset forfeiture.
The denaturalization handbook shows how the federal government pursues denaturalization against naturalized citizens and has instructions on how to prosecute cases efficiently to strip citizenship as quickly as possible.
Smith, the immigration lawyer, said the language of the manual — where ICE plays a chief role in pushing denaturalization — stands in contrast to the civil statute that allows for stripping Americans’ citizenship. “It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any district court of the United States in the judicial district in which the naturalized citizen may reside at the time of bringing suit,” the statute reads.
The handbook, said Smith, shows how ICE is taking the power of instituting procedures away from federal prosecutors assigned to those geographic areas. “We believe Congress meant to have the case evaluated by prosecutors in the jurisdiction, the community,” Smith said. ICE declined to respond on the purported disconnect between its manual’s emphasis on ICE-led denaturalization, and the statute’s emphasis on letting federal prosecutors take the lead.
Foreign nationals can become naturalized citizens through processes defined by the Immigration and Nationality Act. The prerequisites include filling out a number of forms, proving good moral character, passing a citizenship test, and other requirements. “In general,” the U.S. Citizenship and Immigration Services’ Policy Manual Citizenship and Naturalization Guidance reads, “an applicant files a naturalization application and then USCIS grants citizenship after adjudicating the application.”
Denaturalization uses case law and the bureaucratic process to methodically take that citizenship away and then, when possible, deport those whose status has been reverted to that of a visa holder. As a tactic, denaturalization is often politically motivated, said Stock, and targeted toward particular nationalities. “You don’t see a lot of, say, Canadians or Brits being denaturalized,” said Stock.
“You don’t see a lot of, say, Canadians or Brits being denaturalized.”
Immigration attorney Lance Curtright, who practices in San Antonio, Texas, told The Intercept that denaturalization can take two forms: civil and criminal. Criminal denaturalization is usually reserved for those who committed fraud to obtain citizenship for criminal activity — crimes involving terror, drugs, and the like — and carry jail terms of up to 25 years. Civil denaturalization is based on a lower standard of proof and doesn’t result in incarceration. “They’re different methods,” said Curtright, who added that he had noticed that the government pursuing more civil cases in recent months.
The handbook runs through the duties of each agent and the different types of infractions that can result in denaturalization proceedings. And it’s nowhere clearer than in the section of the manual that deals with “Case Strategy.” In this section, ICE instructs its investigative officers to push for charges that will lead to automatic denaturalization, rather than those charges which would require a separate process.
“Case agents,” the manual reads, “should encourage the U.S. Attorney’s Office prosecuting a case involving naturalization fraud or illegality to include a charge of ‘Procurement of Citizenship or Naturalization Unlawfully’ under 18 U.S.C. § 1425 because, upon conviction, the court is required to revoke the defendant’s citizenship.”
“On the other hand,” the manual goes on, “a conviction for ‘False Statements’ under 18 U.S.C. § 1001 does not require the automatic revocation of a defendant’s citizenship and will result in the U.S. Government having to engage in a separate denaturalization prosecution.”
This centralization of the denaturalization process puts the onus for instituting proceedings on HSI agents. That’s indicative of a push to take away the authority provided for under the law to U.S. attorneys working in those jurisdictions, said Smith. He said that the way things are now, cases are put together by special agents in the HSI and then given to U.S. attorneys. “We don’t think it is in keeping with the statute,” said Smith.
The strategy section continues, warning agents that settling for civil infractions carries the risk that the targets of investigations may be able to retain citizenship. If the U.S. Attorney’s Office can’t be convinced to prosecute under criminal infractions, the handbook says, a settlement should be reached, if possible, with the defendant, including civil denaturalization — though that’s not ideal: “Civil denaturalization under 8 U.S.C. § 1451(a) may not result in a deportable charge against the defendant.”
Stock explained that by combining charges, the government was setting the case up to take care of everything all at once with the end goal of deportation. It’s brutal efficiency, she told The Intercept: “They want to go for the jugular.”
“What the government wanted was for any lie or misrepresentation to be enough to denaturalize you,” said immigration attorney Kathrin Mautino. Mautino, who runs her own specialized law firm in San Diego, California, said, “If they could prove you lied about anything, that could be enough.”
Pursuing immigration fraud isn’t new. The use of denaturalization as a tactic, however, wasn’t given much attention before September 11, 2001. After the terror attacks, said Smith, “the government began looking at and re-evaluating any and all tactics from a national security strategy.” One component was denaturalization, a tactic that has been used aggressively over the past two decades.
“What the government wanted was for any lie or misrepresentation to be enough to denaturalize you.”
That changed for naturalized citizens in criminal cases when the Supreme Court, in June 2017, ruled that a simple misstatement on naturalization paperwork was, in and of itself, not enough to strip citizenship at the criminal level. Justice Elena Kagan, writing for the majority, said that the law allows the government to strip “a person of citizenship not when she committed any illegal act during the naturalization process, but only when that act played some role in her naturalization.”
Yet the different standard of proof for civil cases had meant that ICE has merely changed its tactics, not its approach. “The standard is lower on civil cases, so there is more of an emphasis on pursuing those cases,” said Laura Rótolo, an immigration specialist with the American Civil Liberties Union of Massachusetts.
Another benefit for the government in civil denaturalization is that in criminal cases, the defendant must be provided an attorney if they cannot afford one; likewise, there is no right to a jury trial in civil cases. The HSI handbook points out that “there is no statute of limitations for bringing a civil denaturalization action.” For criminal denaturalization cases, there is a 10-year statute of limitations.
Stock told The Intercept that civil cases often end with the defendant giving in against the power of the federal government. Contesting the cases can cause a defendant to rack up tens of thousands, if not hundreds of thousands, of dollars of legal bills — forcing those without means to capitulate early in the legal process. “The rich and powerful hardly ever get denaturalized,” said Stock.
Once someone is convicted and stripped of their citizenship in civil proceedings, they revert back to their original status, usually a permanent resident. Then, depending on the circumstances, the individual is deportable. However, Texas lawyer Curtright said, “It’s not automatic.”
“If disclosure of this Handbook or any portion of it is demanded in any judicial or administrative proceeding,” the foreword reads, various authorities within ICE for legal and public affairs proceedings “should be consulted so that appropriate measures can be taken to invoke privileges against disclosure.”
That seems wrong to the ACLU’s Rótolo, who pointed out that the internal nature of the document doesn’t justify keeping the contents away from public view. “In general, handbooks are subject to the Freedom of Information Act,” Rótolo said. “Just because it’s internal doesn’t mean it’s not subject to the law.”
“In general, handbooks are subject to the Freedom of Information Act. Just because it’s internal doesn’t mean it’s not subject to the law.”
Bourke, the ICE spokesperson, told The Intercept that, generally speaking, there was nothing unusual about keeping information like that in the handbook secret. “It’s not unusual for an internal training document like this to be considered law-enforcement sensitive,” Bourke said in an email, “and therefore, not publicly available.”
The level of secrecy isn’t a surprise to Mautino, the San Diego attorney, who said that it’s typical of the federal government to hold back information from defense attorneys in all manners of immigration cases. “It’s typical of the government holding all the cards and not telling you what you’re looking at,” said Mautino. “We see this all the time.”
Mautino said that the information in the handbook could be helpful for defendants and their lawyers. Instead, most of the time immigration lawyers are flying blind in court and up against a bureaucratic institution that won’t tell them anything. “They ask questions that seem to come out of the blue; we have no idea where they come from,” said Mautino. “Our cases will be stuck and we’ll have no idea why.”
Stock believes that the information in the handbook should be public, especially the information that deals with civil denaturalization. It’s a civil procedure, she explained, and so claims for secrecy and security don’t ring as true as they might in criminal cases. And it’s the government — not some private corporation. Stock said, “They need to be open and transparent about why they’re doing things.”