Cruz Bill Eases Revocations of U.S. Citizenship Without Due Process https://t.co/L1tcQUXUsZ via @HuffPostPol
— Citizenship Lawyer (@ExpatriationLaw) January 20, 2016
By the time I had received this fascinating “hot off the press” information from a U.S. law firm, I had read the article referenced in the above tweet. The article is written by David Bier who is an immigration policy analyst at the Niskanen Center. It has generated interesting discussion at Keith Redmond’s “American Expatriates Facebook Group“.
Yes, it’s true, Canadian born, U.S. presidential candidate Ted Cruz, has introduced a bill threatening people with the loss of U.S. citizenship (notwithstanding that the U.S. Supreme Court has ruled that U.S. citizenship belongs to the citizen and NOT to the government). It is clear that Senator Cruz, hearkening back to the days of the Viet Nam era and before, is of the view that U.S. citizens remain citizens only as long as Congress allows them to. The purpose of the revocation of citizenship is to provide a mechanism to keep them out of the United States. This is is a form of “border control” – a “Cruz concern” as evidenced by the following @SenTedCruz tweet:
Border security is national security. We must take basic steps to protect American citizens https://t.co/vvZx2y4vg7 https://t.co/3qhMSIfAHN
— Senator Ted Cruz (@SenTedCruz) January 20, 2016
The article in the Huffington Post is remarkably well researched and provides a reasonable overview of the issue.
See for example:
Sen. Cruz’s Expatriate Terrorist Act (S. 247) would allow bureaucrats to strip citizenship from U.S. citizens on the dangerously vague grounds of “assistance” to a terrorist group. Americans could lose their citizenship without any trial, conviction, or review by another agency. For Americans abroad, the bureaucrats would even have the ability to deny the right to travel home while a lawsuit is pending in U.S. courts.
Current Process for Expatriation Lacks Strong Due Process
In 1967, the Supreme Court found that Congress cannot take away an American’s citizenship unless they voluntarily choose to relinquish their citizenship. The 14th amendment is unequivocal: “All persons born or naturalized in the United States… are citizens of the United States.” Congress cannot disagree. In 1980, the Court added that a person’s intent to relinquish must be proven, not merely assumed by virtue of voluntarily taking actions deemed by Congress to be “expatriating.”
The process for proving intent, however, is less than rigorous. Under 8 U.S.C. §1481, U.S. citizens–natural born or naturalized–can be expatriated if they voluntarily commit a variety of actions with the intent of relinquishing U.S. citizenship. These include naturalizing in, or being employed by, a foreign state, formally renouncing U.S. citizenship, or being convicted of treason, sedition, incitement to rebellion, or other violent acts against the U.S..
For most acts, the State Department regulations assume that you intend to keep your citizenship unless you formally renounce it. Yet if you “serve in the armed forces of a foreign state engaged in hostilities with the United States,” “take a policy position in a foreign state,” or are convicted of treason, the State Department rejects the assumption. Such cases, the State Department assures us, “will be developed carefully” by U.S. consular officers.
Once the conclusion is made that you intended to give up your citizenship, however, you have little recourse. Under 8 U.S.C. 1501, if a State Department consular officer claims that you have committed such expatriating actions, and the Secretary of State signs off on the claim, that’s it: you are no longer a citizen of the United States of America. You can appeal to the decision, but only to the very State Department that just expatriated you-and under its own regulations, it will not reconsider its decision without “substantial new evidence of involuntariness or intent.”
Senator Cruz’s Expatriate Terrorism Act is for the purpose of amending S. 349(a) of the Immigration and Nationality Act.
What follows is the current S. 349(a) with Cruz amendments in bold italics.
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality—
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, or a foreign terrorist organization designated under section 219, after having attained the age of eighteen years; or
(3) entering, or serving in, the armed forces of a foreign state or a foreign terrorist organization designated under section 219 if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer; or
(4) Becoming a member of, or providing training or material assistance to, any foreign terrorist organization designated under section 219. (this is a new Section 4)
(5) (A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, or a foreign terrorist organization designated under section 219
after attaining the age of eighteen yearsif he (A) knowingly has or acquires the nationality of such foreign state; or (B) an oath, affirmation, or declaration
of allegiance to the foreign state, political subdivision, or designated foreign terrorist organization is required for such office, post, or employment.
accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or
(6) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or
(7) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or
committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.
‘‘(8)(A) Committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States;
‘‘(B) violating or conspiring to violate any of the provisions of section 2383 of title 18, United States Code;
‘‘(C) willfully performing any act in violation of section 2385 of title 18, United States Code; or
‘‘(D) violating section 2384 of such title by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when such person is convicted thereof by a court martial or by a court of competent jurisdiction.’’
The text of the proposed legislation is here:
S. 274 Expatriate Terrorism Act
Most of the proposed bill is “terrorism related”.
Notice that these proposed amendments are not congruent with S. 877A(g)(4) of the Internal Revenue Code …
By adding another section to S. 349(a) of the Immigration and Nationality Act (the new S. (4) – “Becoming a member of, or providing training or material assistance to, any foreign terrorist organization designated under section 219”, S. 349(a) of the Immigration and Nationality Act no longer aligns with the “Expatriation provisions” of the Internal Revenue Code (but why let that get in the way of an otherwise good idea?).
S. 219 of the Immigration and Nationality Act, who decides what is a “terrorist” or “terrorism”?
S. 219 of the Immigration and Nationality Act reads as follows:
INA: ACT 219 – DESIGNATION OF FOREIGN TERRORIST ORGANIZATION 1/
Sec. 219. (a) Designation.-
(1) In general.-The Secretary is authorized to designate an organization as a terrorist organization in accordance with this subsection if the Secretary finds that-
(A) the organization is a foreign organization;
(B) the organization engages in terrorist activity (as defined in section 212(a)(3)(B) 1a/ or terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C. 2656f(d)(2)), or retains the capability and intent to engage in terrorist activity or terrorism); and
(C) the terrorist activity 1a/ or terrorism of the organization threatens the security of United States nationals or the national security of the United States.
(A) 1a/ NOTICE-
(i) TO CONGRESSIONAL LEADERS- Seven days before making a designation under this subsection, the Secretary shall, by classified communication, notify the Speaker and Minority Leader of the House of Representatives, the President pro tempore, Majority Leader, and Minority Leader of the Senate, and the members of the relevant committees of the House of Representatives and the Senate, in writing, of the intent to designate an organization under this subsection, together with the findings made under paragraph (1 ) with respect to that organization, and the factual basis therefor.
(ii) PUBLICATION IN FEDERAL REGISTER- The Secretary shall publish the designation in the Federal Register seven days after providing the notification under clause (i).
(B) Effect of designation.-
(i) For purposes of section 2339B of title 18, United States Code, a designation under this subsection shall take effect upon publication under subparagraph (A)(ii) 1a/ .
(ii) Any designation under this subsection shall cease to have effect upon an Act of Congress disapproving such designation.
(C) Freezing of assets.-Upon notification under paragraph (2)(A)(i) 1a/ , the Secretary of the Treasury may require United States financial institutions possessing or controlling any assets of any organization included in the notification to block all financial transactions involving those assets until further directive from either the Secretary of the Treasury, Act of Congress, or order of court.
(A) In general.-In making a designation under this subsection, the Secretary shall create an administrative record.
(B) Classified information.-The Secretary may consider classified information in making a designation under this subsection. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (c ) 1d/ 1a/ .
(4) Period of designation.-
(A) In general.- 1b/ A designation under this subsection shall be effective for all purposes 1b/ until revoked under paragraph (5) or (6) or set aside pursuant to subsection (c).
(B) 1b/ REVIEW OF DESIGNATION UPON PETITION-
(i) IN GENERAL- The Secretary shall review the designation of a foreign terrorist organization under the procedures set forth in clauses (iii) and (iv) if the designated organization files a petition for revocation within the petition period described in clause (ii).
(ii) PETITION PERIOD- For purposes of clause (i)–
(I) if the designated organization has not previously filed a petition for revocation under this subparagraph, the petition period begins 2 years after the date on which the designation was made; or
(II) if the designated organization has previously filed a petition for revocation under this subparagraph, the petition period begins 2 years after the date of the determination made under clause (iv) on that petition.
(iii) PROCEDURES- Any foreign terrorist organization that submits a petition for revocation under this subparagraph must provide evidence in that petition that the relevant circumstances described in paragraph (1) are sufficiently different from the circumstances that were the basis for the designation such that a revocation with respect to the organization is warranted.
(I) IN GENERAL- Not later than 180 days after receiving a petition for revocation submitted under this subparagraph, the Secretary shall make a determination as to such revocation.
(II) CLASSIFIED INFORMATION- The Secretary may consider classified information in making a determination in response to a petition for revocation. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (c).
(III) PUBLICATION OF DETERMINATION- A determination made by the Secretary under this clause shall be published in the Federal Register.
(IV) PROCEDURES- Any revocation by the Secretary shall be made in accordance with paragraph (6).
(C) 1b/ OTHER REVIEW OF DESIGNATION-
(i) IN GENERAL- If in a 5-year period no review has taken place under subparagraph (B), the Secretary shall review the designation of the foreign terrorist organization in order to determine whether such designation should be revoked pursuant to paragraph (6).
(ii) PROCEDURES- If a review does not take place pursuant to subparagraph (B) in response to a petition for revocation that is filed in accordance with that subparagraph, then the review shall be conducted pursuant to procedures established by the Secretary. The results of such review and the applicable procedures shall not be reviewable in any court.
(iii) PUBLICATION OF RESULTS OF REVIEW- The Secretary shall publish any determination made pursuant to this subparagraph in the Federal Register.
(5) Revocation by act of congress.-The Congress, by an Act of Congress, may block or revoke a designation made under paragraph (1).
(6) Revocation based on change in circumstances.-
(A) In general.-The Secretary may revoke a designation made under paragraph (1) 1a/ 1d/ at any time, and shall revoke a designation upon completion of a review conducted pursuant to subparagraphs (B) and (C) of paragraph (4) if the Secretary finds that-
(i) the circumstances that were the basis for the designation 1a/ 1d/ have changed in such a manner as to warrant revocation 1a/ ; or
(ii) the national security of the United States warrants a revocation. 1a/
(B) Procedure.-The procedural requirements of paragraphs (2) and (3) 1a/ shall apply to a revocation under this paragraph . 1a/ Any revocation shall take effect on the date specified in the revocation or upon publication in the Federal Register if no effective date is specified.
(7) Effect of revocation.-The revocation of a designation under paragraph (5) or (6) 1d/ 1a/ shall not affect any action or proceeding based on conduct committed prior to the effective date of such revocation.
(8) Use of designation in trial or hearing.-If a designation under this subsection has become effective under 1a/ paragraph (2)(B) 1d/ a defendant in a criminal action 1a/ or an alien in removal proceeding shall not be permitted to raise any question concerning the validity of the issuance of such designation 1d/ 1a/ as a defense or an objection at any trial or hearing.
(b) 1c/ AMENDMENTS TO A DESIGNATION-
(1) IN GENERAL- The Secretary may amend a designation under this subsection if the Secretary finds that the organization has changed its name, adopted a new alias, dissolved and then reconstituted itself under a different name or names, or merged with another organization.
(2) PROCEDURE- Amendments made to a designation in accordance with paragraph (1) shall be effective upon publication in the Federal Register. Subparagraphs (B) and (C) of subsection (a)(2) shall apply to an amended designation upon such publication. Paragraphs (2)(A)(i), (4), (5), (6), (7), and (8) of subsection (a) shall also apply to an amended designation.
(3) ADMINISTRATIVE RECORD- The administrative record shall be corrected to include the amendments as well as any additional relevant information that supports those amendments.
(4) CLASSIFIED INFORMATION- The Secretary may consider classified information in amending a designation in accordance with this subsection. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (c).
(c) 1c/ Judicial Review of Designation.-
(1) In general.-Not later than 30 days after publication in the Federal Register of a designation, an amended designation, or a determination in response to a petition for revocation, the designated organization may seek judicial review 1d/ in the United States Court of Appeals for the District of Columbia Circuit.
(2) Basis of review.-Review under this subsection shall be based solely upon the administrative record, except that the Government may submit, for ex parte and in camera review, classified information used in making the designation, amended designation, or determination in response to a petition for revocation. 1d/
(3) Scope of review.-The Court shall hold unlawful and set aside a designation, 1d/ amended designation, or determination in response to a petition for revocation the court finds to be-
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;
(D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (2), or
(E) not in accord with the procedures required by law. 2/
(4) Judicial review invoked.-The pendency of an action for judicial review of a designation, amended designation, or determination in response to a petition for revocation 1d/ shall not affect the application of this section, unless the court issues a final order setting aside the designation, amended designation, or determination in response to a petition for
(d) 1c/ Definitions.-As used in this section-
(1) the term “classified information” has the meaning given that term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.);
(2) the term “national security” means the national defense, foreign relations, or economic interests of the United States;
(3) the term “relevant committees” means the Committees on the Judiciary, Intelligence, and Foreign Relations of the Senate and the Committees on the Judiciary, Intelligence, and International Relations of the House of Representatives; and
(4) the term “Secretary” means the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General.
What does this all mean? Note that this applies only to “Foreign Organizations” (all things “foreign” are punished under the Internal Revenue Code as well). Note also that the Government decides who or what is or is not a “terrorist”.
As David Bier in the Huffington Post article suggests:
We should not give more power to bureaucrats to take away all of the rights of Americans with a stroke of the pen. Such a process does not accord with American traditions or basic human rights. Congress should reform the expatriation statutes to require a trial prior to loss of citizenship.
We live in troubled times indeed.