Sphyrapicus

A comment by Stuart regarding denaturalization seemed timely, given the
appearance of this article today.

******************************

A U.S. Court of Appeals in Atlanta, Georgia recently upheld a lower
court ruling that stripped a man of his U.S. citizenship because of
crimes he committed while his paperwork was being processed. Experts say
the case will make it easier for government agencies to pursue
naturalized immigrants who have criminal histories.

Lionel Jean-Baptiste, a 57-year-old former restaurant owner from Haiti
was a leading member of the Haitian community in Miami until he was
arrested and convicted of cocaine smuggling in 1997.

Mr. Jean-Baptiste served seven years in prison for his crime, but when
he was released from prison in 2002, prosecutors took him to court
again, this time to strip him of his citizenship.

Ms. Jean-Baptiste they said did not fulfill the "good moral character"
requirement for naturalization. Prosecutors said that Mr. Jean-
Baptiste applied for citizenship while he was engaged in criminal
activity, and while he was not convicted until 1997, after he became
a citizen, they said he should be stripped of his citizenship.

Now, an appeals court has rejected Mr. Jean-Baptiste's appeal - not to
lose his citizenship - and he could face deportation back to Haiti. His
lawyer says he will ask the appeals court to reconsider its decision and
will try and appeal the case to the U.S. Supreme Court. Immigration and
Customs officials have had no comment on the case.

Some leading authorities on immigration law, such as Professor Stephen
Legomsky of Washington University in St. Louis, Missouri, say government
prosecutors were clearly using the Jean-Baptiste case as a test case to
set a precedent for future denaturalization proceedings.

"Well before 9/11, starting back in the 1990s, the government was
intensifying its efforts to deport non-U.S. criminal offenders," he
said. "After 9/11 that drive picked up. Since then it has taken a great
deal of time because these proceedings tend to linger a while. My view
is that since it takes so much time and effort for the government to
bring a denaturalization proceeding, and then, if successful, to bring a
subsequent removal proceeding, I have to think that with all their other
priorities the government would not have brought this case unless their
goal was to test out the strategy for future prosecutions."

David Martin, a professor of law at the University of Virginia and a
former general counsel at the Immigration and Naturalization Service
during the Clinton administration, says that the Jean-Baptiste case
gives government prosecutors more ammunition in their prosecution of
criminals, but he says de-naturalization cases are extremely difficult
and complex to bring and will only affect a very small portion of the
migrant population.

"In a way there is always a certain insecurity for naturalized citizens
if the government later discovers that there was some kind of fraud or
illegality in the naturalization process they can move to take away
citizenship and there is no statute of limitations so there is that
vulnerability," he said. "But, there are only a very tiny percentage of
cases that result in any effort to de-naturalize. For the government,
the burden of proof is very difficult by design. The Supreme Court has
held that the constitution requires the government to carry a heavy
burden of proof if they are going to take away citizenship."

Stephen Legomsky of Washington University says it is important to
remember that Lionel Jean-Baptiste is losing his citizenship because he
did not fulfill the requirement of being of "good moral character" as
required by law. Mr. Legomsky says that in this case the courts are
deferring to law enforcement agencies to define what that means.

"It is not unusual for a court to defer to an agency interpretation," he
said. "What is unusual about this case is that it is citizenship that is
at stake, and citizenship has such a special importance in our legal
system and in our society. The court is essentially allowing a law
enforcement agency to take away somebody's citizenship and that I think
should be of concern."

Stephen Legomsky says while the government has won the Jean-Baptiste
case, he says it is unlikely there will be a flood of denaturalization
cases brought by government prosecutors. However, he says, there will be
more such cases, because the naturalization process now takes much
longer, meaning there will be more people committing crimes while they
are awaiting naturalization.

Mt. Legomsky says naturalization is now taking longer because more
people are applying to become citizens," he said. "He also says
people are less hesitant to apply for naturalization because more
countries are now allowing dual citizenship, meaning applicants can
keep their citizenship in their country of origin. Additionally, he
says the government has fewer resources to process the flood of
applications, making the process even slower.

Source: http://www.voanews.com/english/2005-01-12-voa35.cfm

Andrew DeFaria

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sphyrapicus wrote:

    > Lionel Jean-Baptiste, a 57-year-old former restaurant owner from Haiti
    > was a leading member of the Haitian community in Miami until he was
    > arrested and convicted of cocaine smuggling in 1997.

Personally I feel that the US could use less cocaine smugglers in their
citizenry. YMMV.

    > Ms. Jean-Baptiste they said did not fulfill the "good moral character"
    > requirement for naturalization.

Exactly!

    > Prosecutors said that Mr. Jean-Baptiste applied for citizenship while
    > he was engaged in criminal activity, and while he was not convicted
    > until 1997, after he became a citizen, they said he should be stripped
    > of his citizenship.

IMHO the only interesting part here is the date of conviction WRT the
date of grant of citizenship.

    > "In a way there is always a certain insecurity for naturalized
    > citizens if the government later discovers that there was some kind of
    > fraud or
    > illegality in the naturalization process they can move to take away
    > citizenship and there is no statute of limitations so there is that
    > vulnerability,"

If one does not engage in fraud and other illegalities then one does not
have to worry nor be insecure. If one does engage in such things they
they shouldn't be granted citizenship.

    > he said. "But, there are only a very tiny percentage of cases that
    > result in any effort to de-naturalize. For the government, the burden
    > of proof is very difficult by design. The Supreme Court has held that
    > the constitution requires the government to carry a heavy burden of
    > proof if they are going to take away citizenship."

What Constitution is he speaking of? Cause I don't see where the
Constitution says that.

    > Stephen Legomsky of Washington University says it is important to
    > remember that Lionel Jean-Baptiste is losing his citizenship because he
    > did not fulfill the requirement of being of "good moral character" as
    > required by law. Mr. Legomsky says that in this case the courts are
    > deferring to law enforcement agencies to define what that means.

Really? How so? It seem to me like the conviction and 7 years in prison
were sentenced by the courts themselves, not law enforcement.

    > "It is not unusual for a court to defer to an agency interpretation,"
    > he said. "What is unusual about this case is that it is citizenship
    > that is
    > at stake, and citizenship has such a special importance in our legal
    > system and in our society. The court is essentially allowing a law
    > enforcement agency to take away somebody's citizenship and that I
    > think should be of concern."

I disagree. Seems to me that the courts did indeed convict, not law
enforcement. Again the real issue is the timing of the conviction WRT
the timing of the grant of citizenship. Surely if it were found, after
granting citizenship, that fraud was used to obtain that citizenship
then the citizenship should not have been awarded. Why then should it be
if a conviction, thus proving guilt, of a crime that also occurred
before the granting of citizenship be likewise usable to say that the
citizenship should not have been granted?

    > Stephen Legomsky says while the government has won the Jean-Baptiste
    > case, he says it is unlikely there will be a flood of denaturalization
    > cases brought by government prosecutors. However, he says, there will
    > be more such cases, because the naturalization process now takes much
    > longer, meaning there will be more people committing crimes while they
    > are awaiting naturalization.

Again, seems simple to me - don't commit crimes!

Folinskyinla

    > A comment by Stuart regarding denaturalization seemed timely, given
    > the appearance of this article today.
    > ******************************
    > A U.S. Court of Appeals in Atlanta, Georgia recently upheld a lower
    > court ruling that stripped a man of his U.S. citizenship because of
    > crimes he committed while his paperwork was being processed. Experts
    > say the case will make it easier for government agencies to pursue
    > naturalized immigrants who have criminal histories.
    > Lionel Jean-Baptiste, a 57-year-old former restaurant owner from Haiti
    > was a leading member of the Haitian community in Miami until he was
    > arrested and convicted of cocaine smuggling in 1997.
    > Mr. Jean-Baptiste served seven years in prison for his crime, but when
    > he was released from prison in 2002, prosecutors took him to court
    > again, this time to strip him of his citizenship.
    > Mr. Jean-Baptiste they said did not fulfill the "good moral character"
    > requirement for naturalization. Prosecutors said that Mr. Jean-
    > Baptiste applied for citizenship while he was engaged in criminal
    > activity, and while he was not convicted until 1997, after he
    > became a citizen, they said he should be stripped of his
    > citizenship.
    > Now, an appeals court has rejected Mr. Jean-Baptiste's appeal - not to
    > lose his citizenship - and he could face deportation back to Haiti.
    > His lawyer says he will ask the appeals court to reconsider its
    > decision and will try and appeal the case to the U.S. Supreme Court.
    > Immigration and Customs officials have had no comment on the case.
    > Some leading authorities on immigration law, such as Professor Stephen
    > Legomsky of Washington University in St. Louis, Missouri, say
    > government prosecutors were clearly using the Jean-Baptiste case as a
    > test case to set a precedent for future denaturalization proceedings.
    > "Well before 9/11, starting back in the 1990s, the government was
    > intensifying its efforts to deport non-U.S. criminal offenders," he
    > said. "After 9/11 that drive picked up. Since then it has taken a
    > great deal of time because these proceedings tend to linger a while.
    > My view is that since it takes so much time and effort for the
    > government to bring a denaturalization proceeding, and then, if
    > successful, to bring a subsequent removal proceeding, I have to think
    > that with all their other priorities the government would not have
    > brought this case unless their goal was to test out the strategy for
    > future prosecutions."
    > David Martin, a professor of law at the University of Virginia and a
    > former general counsel at the Immigration and Naturalization Service
    > during the Clinton administration, says that the Jean-Baptiste case
    > gives government prosecutors more ammunition in their prosecution of
    > criminals, but he says de-naturalization cases are extremely difficult
    > and complex to bring and will only affect a very small portion of the
    > migrant population.
    > "In a way there is always a certain insecurity for naturalized
    > citizens if the government later discovers that there was some kind of
    > fraud or illegality in the naturalization process they can move to
    > take away citizenship and there is no statute of limitations so there
    > is that vulnerability," he said. "But, there are only a very tiny
    > percentage of cases that result in any effort to de-naturalize. For
    > the government, the burden of proof is very difficult by design. The
    > Supreme Court has held that the constitution requires the government
    > to carry a heavy burden of proof if they are going to take away
    > citizenship."
    > Stephen Legomsky of Washington University says it is important to
    > remember that Lionel Jean-Baptiste is losing his citizenship because
    > he did not fulfill the requirement of being of "good moral character"
    > as required by law. Mr. Legomsky says that in this case the courts are
    > deferring to law enforcement agencies to define what that means.
    > "It is not unusual for a court to defer to an agency interpretation,"
    > he said. "What is unusual about this case is that it is citizenship
    > that is at stake, and citizenship has such a special importance in our
    > legal system and in our society. The court is essentially allowing a
    > law enforcement agency to take away somebody's citizenship and that I
    > think should be of concern."
    > Stephen Legomsky says while the government has won the Jean-Baptiste
    > case, he says it is unlikely there will be a flood of denaturalization
    > cases brought by government prosecutors. However, he says, there will
    > be more such cases, because the naturalization process now takes much
    > longer, meaning there will be more people committing crimes while they
    > are awaiting naturalization.
    > Mr. Legomsky says naturalization is now taking longer because more
    > people are applying to become citizens," he said. "He also says
    > people are less hesitant to apply for naturalization because more
    > countries are now allowing dual citizenship, meaning applicants
    > can keep their citizenship in their country of origin.
    > Additionally, he says the government has fewer resources to
    > process the flood of applications, making the process even slower.
    > Source: http://www.voanews.com/english/2005-01-12-voa35.cfm

Hi:

Out of curiosity, I just read this case after reading this article. I
see nothing extraordinary in the case. In fact, the court often cites
the Nazi denaturalization cases -- which, unlike Jean-Baptiste, did not
involve criminal convictions. In those cases, the actual bad acts were
proved up in the denaturalization process itself. Here, the government
relied on the conviction to "collaterally estopp" Jean-Baptiste from
deneying that he had done the dastardly deeds duriing the required
period of good moral character.

The 11th Cir. based in Atlanta is quite conservative and I'm not at all
surprised by the decision. However, I think even the more "liberal"
1st, 2nd and 9th Circuits, the result would have been the same.

Sphyrapicus

    > Hi:
    > Out of curiosity, I just read this case after reading this article. I
    > see nothing extraordinary in the case. In fact, the court often cites
    > the Nazi denaturalization cases -- which, unlike Jean-Baptiste, did
    > not involve criminal convictions. In those cases, the actual bad acts
    > were proved up in the denaturalization process itself. Here, the
    > government relied on the conviction to "collaterally estopp" Jean-
    > Baptiste from deneying that he had done the dastardly deeds duriing
    > the required period of good moral character.
    > The 11th Cir. based in Atlanta is quite conservative and I'm not
    > at all surprised by the decision. However, I think even the more
    > "liberal" 1st, 2nd and 9th Circuits, the result would have been
    > the same.

Thanks for your comments. Out of interest, what is the case you
mentioned in the other thread where the supremes upheld that one could
not have crimes held against them in the time between when they
naturalized and were denaturalized? Apologies if my paraphrasing is off.

Folinskyinla

    > Thanks for your comments. Out of interest, what is the case you
    > mentioned in the other thread where the supremes upheld that one
    > could not have crimes held against them in the time between when
    > they naturalized and were denaturalized? Apologies if my
    > paraphrasing is off.

Hi:

To be honest, I don't remember the case. In the early 60's, Attorney
General Robert F. Kennedy went after mafioso. From the mid 70's and on,
a lot of effort has been expended on former Nazi war criminals. The Jean-
Baptiste case mentions Fedorenko, which was a Nazi case.

However, the case I had in mind was where a mafioso was denaturalized
for a reason I don't remember. They then sought to deport him based
upon tax evasion conviction which happened when he was a US citizen.
Supremes said no.

There have also been some cases from the so-called "Chinese Confession"
program of the 50's which didn't deal with "naturalization" simply
becuase the people were not eligble for such under the former racial
bars. Nothing from the Supremes that I recall. Many Chinese had
"immigrated" by false claims to paternity by a US Born Chinese father.
In one case, the guy sued and got a judgement that he was a US citizen.
He then became a crewman and entered the US many times as a crewman.
Many disabilities attach to alien admissions as a crewman. There was
later a stipulated vacation of the judgement of U.S. nationality. INS
tried to deport him as an alien crewman, which would have cut him off
from relief from deportation. BIA said that crewman entries were under
a JUDGEMENT of citizenship which could not have been attacked -- so he
was not a "crewman" and could apply for relief from deportation.

It is a broad but interesting area of immigration law.

Rich Wales

"sphyrapicus" wrote:

> > The Supreme Court has held that the constitution
> > requires the government to carry a heavy burden of
> > proof if they are going to take away citizenship.

Andrew DeFaria replied:

> What Constitution is he speaking of? Cause I don't
> see where the Constitution says that.

"sphyrapicus" is, I assume, referring to the "citizenship clause"
(the first part of the 14th Amendment). The Supreme Court held,
in Afroyim v. Rusk (1967) and Vance v. Terrazas (1980), that the
citizenship clause had elevated the retention of US citizenship
to a constitutionally protected right. Assuming someone has been
granted US citizenship via legitimate naturalization, he/she can
be stripped of that citizenship only if he/she freely chooses to
give it up.

In cases such as the one originally cited in this thread, the
defendant was considered liable for revocation of naturalization
(and loss of citizenship) because he had in fact never qualified
for naturalization in the first place.

Rich Wales http://www.richw.org/dualcit/
*DISCLAIMER: I am not a lawyer, professional immigration consultant,
or consular officer. My comments are for discussion purposes only and
are not intended to be relied upon as legal or professional advice.

Sphyrapicus

    > A comment by Stuart regarding denaturalization seemed timely, given
    > the appearance of this article today.
    > ******************************
    > Source: http://www.voanews.com/english/2005-01-12-voa35.cfm

Regarding the comment by "Sue" above.

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Andrew DeFaria

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Rich Wales wrote:

    > "sphyrapicus" is, I assume, referring to the "citizenship clause" (the
    > first part of the 14th Amendment). The Supreme Court held, in Afroyim
    > v. Rusk (1967) and Vance v. Terrazas (1980), that the citizenship
    > clause had elevated the retention of US citizenship to a
    > constitutionally protected right. Assuming someone has been granted US
    > citizenship via legitimate naturalization, he/she can be stripped of
    > that citizenship only if he/she freely chooses to give it up.

Interesting. The web site where I went for the Constitution seems to
lack all the amendments!--
Not one shred of evidence supports the notion that life is serious.

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