INS can't revoke citizenship, says
appeals court
By Howard Fischer
CAPITOL MEDIA SERVICES
In a case with far-reaching implications, a federal
appeals court yesterday stripped the Immigration and
Naturalization Service of its ability to revoke
someone's citizenship.
The full 9th U.S. Circuit Court of Appeals unanimously
rejected arguments by federal attorneys that the INS
power to grant citizenship necessarily gives it the
ability to remove it from those same people. The judges
said only a federal judge can wield such authority.
"For the Attorney General to gain the terrible power to
take citizenship away without going to court, she needs
Congress to say so," wrote Judge Andrew Kleinfeld for
the court.
Although the ruling comes in the case of 10 individuals,
it has a far broader reach: The case was certified as a
national class-action lawsuit.
Attorney Jonathan Franklin said the INS had close to
5,000 cases in the pipeline when the agency's
decertification proceedings were temporarily halted by
a judge in 1998.
Yesterday's ruling, unless overturned by the U.S.
Supreme Court, makes that halt permanent.
The fight surrounds a 1996 regulation enacted by
Attorney General Janet Reno setting out a procedure to
revoke naturalization. Ten individuals who were given
notices of intent to reopen their cases filed suit in
federal court seeking to block the action.
Reno's attorneys pointed out that six years earlier
Congress had given the INS, a division of the
Department of Justice, the power to handle
naturalizations. Until then, citizenship was the sole
province of federal courts.
That, they argued, inherently means that Congress
wanted INS to handle all aspects of citizenship,
including revocation.
Kleinfeld said the problem with that argument is the
statute gives no such citizenship-stripping authority to
Reno or the INS.
"There is no general principle that what one can do,
one can undo," the judge wrote.
"It sounds good, just as the Beatles' lyrics - 'Nothing
you can know that isn't known / Nothing you can see
that isn't shown / Nowhere you can be that isn't where
you're meant to be,' sound good," Kleinfeld continued.
"But as Sportin' Life said (in Porgy and Bess), 'It ain't
necessarily so.' "
He said Congress specifically empowered courts to set
aside their own judgments. But federal lawmakers, in
allowing the INS to grant citizenship, never gave the
agency the power to revoke it.
Franklin, who represented the people threatened with
loss of citizenship, said he believes the entire exercise
was political.
He said Reno's agency was under pressure in 1996
when Republican members of Congress charged that the
Clinton administration had rushed through
naturalization procedures so that these new citizens
could vote, presumably for Democrats. That rush, the
GOP lawmakers argued, resulted in sloppy procedures
that let people with criminal records become citizens.
Franklin said 2,692 individuals already were given
notices of intent to reopen their cases when the
injunction was issued in 1998.
In 94 percent of the cases, he said, the individuals were
accused of failing to disclose things that, even if they
had revealed them, would not have disqualified them
from citizenship. Most of these, he said, were for
arrests for which there was no conviction.
For example, he said, one of his clients had been
arrested for possession of marijuana. He said when
police took the woman and the plant to their
headquarters they discovered it was a house plant and
she was released.
In another case, Franklin said, a man's arrest was
nullified by a court and he was told to treat the incident
as if it never happened.
Despite that, he said, the INS pursued these individuals
on the basis that because they had lied they had "bad
moral character." |
