Protecting American Citizenship: Denaturalization and Constitutional Limits

Okay, we'll call the hearing of the Senate Judiciary Committee, subcommittee on the Constitution to order. Today's topic is protecting American citizenship three, denaturalization and its constitutional limits. This hearing will examine the legal and policy issues surrounding surrounding denaturalization and why it is a critical safeguard of the value and meaning of American citizenship as well as the security and harmony of American society. We'll make uh our opening statements, the ranking member, myself, then we'll introduce our witnesses, swear them in, and then hear their testimony before proceeding to five minute rounds of questioning. American citizenship is sacred. It's the highest civic honor this country can give. It carries rights, duties, allegiance, memory, inheritance, and obligation. It means joining the American people in accepting responsibility for the future of the nation. But for far too long, Washington treated naturalization like paperwork. Check the boxes, say the words, get the passport,

Yeah.

collect the welfare check and federal tax credit, and move on. The approach desecrates American citizenship. It insults every immigrant who came here honestly, followed the law, learned our history, embraced our constitution, and took the oath in good faith. The constitution gives Congress the power to establish a uniform rule of naturalization. Congress used that power to require more than residency and forms. Instead, applicants must show good moral character. They must be attached to the principles of the Constitution. They must be well disposed to good, to the good order and happiness of the United States. When someone lies during that process, conceals material facts, hides criminal conduct, masks allegiance to a foreign enemy, or swears loyalty with mental reservation, He commits fraud against the United States and the American people. Fraud has desecrated American citizenship. But that desecration did not happen overnight. It built up over the decades of lax enforcement, cheapen standards, and political cowardice. Reconsecrating citizenship requires a memory, or I I should say a remedy, strong enough to remove those who abuse it. That's called denaturalization. Denaturalization cancels citizenship that should never have been granted. It enforces the conditions Congress placed on naturalization. It protects the American people from those who abused our generosity and turned the oath into a scam. The Supreme Court has made the rule clear. No alien has the slightest right to naturalization unless every statutory requirement is met. Citizenship obtained by fraud is stolen status. Stolen status should be revoked. Right now across the country, we're seeing the consequences of a broken naturalization system that loosely granted citizenship and then refused to revoke it from those who stole it. A DOJ and DHS review found that naturalized citizens made up more than twenty-five percent of the international terrorism-related convictions from September eleventh, two thousand one to twenty sixteen. Since then, the pattern has continued. Terrorism-related crimes, concealed sex offenses, healthcare fraud, drug trafficking, espionage, and massive fraud against government programs. In Minnesota, many of those involved in the feeding our future scandal that stole a quarter of a billion dollars from a federally funded children's nutrition program were naturalized citizens. Money meant to feed needy children was spent on luxury goods, vacations, real estate and sent overseas. It was stolen. That crime attacked more than the public Trust. It attacked the public trust and the sacred trust between the nation's citizens and their government. When someone naturalizes and then joins ISIS, supports Al-Qaeda, affiliates affiliates with other terrorist organizations, spies for a foreign intelligence service, joins a cartel, or steals millions from American taxpayers, all recent examples of crimes committed by newly naturalized citizens, prosecutors should ask the obvious question. Why did this person conceal when he was asked to become an American in the first place? And what did they conceal? If a man takes the oath of allegiance and then joins ISIS, the fraud likely began long before the battlefield. If a man swears attachment to the Constitution and spies for a foreign country, the betrayal likely began before the indictment. If a man claims good moral character and then steals millions from American from the American people, The lie may have been present at naturalization. The Trump administration is right to revive denaturalization. The Department of Justice must bring these cases. A USCIS and USCIS should continue referring them for prosecution. Prosecutors should pursue terrorists, fraudsters, spies, sex offenders, violent criminals, and anyone who conceal concealed material facts to obtain citizenship.

Yeah.

We need a serious nationwide denaturalization effort against fraudsters, felons, terrorists, spies, and anyone who obtained American citizenship by deceit. If the government never revokes citizenship obtained by fraud, the oath becomes theater, the application becomes a game, the American citizen becomes the sucker in his own country. That is why I've introduced the Stop Citizenship Abuse and Misrepresentation Act the scam act. The name fits because the abuse is real. If you scam the United States to get citizenship, you should lose it. And we have every right to revoke it. The scam act gives the government stronger tools when seriously, when serious conduct Serious tools when serious conduct shortly after national na- naturalization reveals the truth that was hiding during the process. Major fraud against government programs, affiliation with foreign terrorist organizations, aggravated felonies, and espionage. Those acts should serve as powerful evidence that the person lacked good moral character, lacked attachment to the Constitution, or lacked a disposition towards the good order and happiness of the United States when he became a citizen. The Scam Act also fixes a legal absurdity. Under current law, even after someone is denaturalized, courts can prevent their deportation by treating crimes committed during the fraudulent citizenship as if they do not count for deportation. This makes no sense. When citizenship is revoked because it was unlawfully obtained the law should permit deportation. Prison alone cannot protect the American people if the terrorist, spy, or fraudster remains here after release. A recent case demonstrates the need to expand our denaturalization laws and ensure deportation. In twenty sixteen, a naturalized citizen was convicted on terrorism charges. for trying to carry out a terrorist attack for ISIS. He was sent to prison, but was released early in twenty twenty four. He wasn't denaturalized. And he wasn't deported. So after his release earlier this year, he committed a terrorist attack at an American university, attacking a ROTC classroom and killing a lieutenant colonel. The terrorist should not have been allowed to remain a citizen in the United States. He should have been denaturalized and deported. And if he had been denaturalized and deported, that horrific attack would have been prevented. Fraudsters should be afraid. Terrorists should be afraid. Spies should be afraid. Cartel members should be afraid. Anyone who lied their s- themselves into this country and obtained citizenship should be afraid. The American people are tired of a government that treats their citizenship as cheap, their laws as optional, and their genera- generosity as an invitation to be exploited. This subcommittee will defend the value of American citizenship. We will support the Trump administration's denaturalization efforts. We will fight fraud in all forms. We will fight to pass the scam act. Denaturalization is citizenship citizenship safeguard whose time has come. I turn it over to the ranking member.

Uh, thank you very much, Mister Chairman, and I wanna thank our witnesses for being here. Uh, today is our third hearing, this Congress and this subcommittee on protecting American citizenship. All of them have focused on the topic of immigration, and today's topic is on denaturalization of non-native-born citizens. And I will get to that in a moment. But first, I wanna make a point at what we've not looked at. The administration has, it is absolutely clear, a very radical goal, and that is mass deportation. of immigrants from our country. This includes Dreamers, DACA recipients, folks here illegally, and I oppose that. It's doing real damage to our country. And as part of that effort, we've seen the abusive lengths that this administration is willing to go, the violence in Minnesota, that's receded. But the cruelty of these policies to create fear and anxiety, uh, inc- uh, include targeting uh, legal immigrants. Uh, the Trump administration has violently clamped down on Americans exercising their constitutional rights. Uh, in Minnesota, of course, we saw the killing of two people, a thirty seven year old nurse, a thirty seven year old mother. Immigration agents agents have detained US citizens, including a Vermonter, a a respected principal, Wilmer Chavarria, a school superintendent who was pulled out of a Houston airport and told quote, " You have no rights here." The Department of Homeland Security has authorized immigration agents to enter the homes of Americans without a judicial warrant. Immigrants have been deported without due process, sometimes in defiance of federal court orders prohibiting their deportation. The uh White House has turned to pulling every bureaucratic lever that the White House has within its considerable power, cutting off immigrants from jobs, financial services, medical care, tax credits and daycare. There was a woman, an immigrant from El Salvador, legally in this country, providing janitorial services at the Boston airport, a job she revered, gave her life dignity, she did it well. And he last year the administration had her fired. Declaring that because of her legal immigration status, she could not carry out the work she had done for almost three decades. And this is all part of a radical crusade against immigration. It's not about securing the border, we're for that. It's not about deporting criminals, we're for that. It's about going after people, including folks who were here illegally, and I absolutely oppose that. Mister Chairman, yesterday my granddaughter graduated from Montgomery Blair High School and I attended. There were two thousand kids in her class, and many of the speakers were first generation graduates of high school. And the pride of the parents, seeing their kids graduate in the words of these kids, where they spoke about values, they spoke about a life of purpose, they spoke about commitment to community, they spoke about friendship. We should be honoring and protecting those kids who are our future and putting our energies protecting them and not just focusing on these other issues that are about implementation of this mass deportation policy. This is too important for the future of our country, and it's very important to the present of our country that we treat legally entitled people with real dignity. Turning to the topic of today's hearing, denaturalization, I wanna be clear. I agree, I agree with you, that we shouldn't allow people to abuse our immigration system. People should not be able to deceive the government and acquire citizenship by lying. We should be tough on fraud, but expanding the denaturalizations is not in furtherance of that goal in this administration. It's intended to create fear in our communities, to prevent people who are legally here from showing up to school, working, or seeing doctors. And by the way, some of those kids had family members, I'm talking that Montgomery Blair, who were picked up, even though they were here legally. Under current law, naturalized citizenship can be revoked, uh, if it was procured illegally or by concealment or of material fact or w- willful misrepresentation. So again, I wanna be clear, I support that. But I don't agree. that natural naturalized citizens should be punished for something that happens after they become a citizen. And that is just not my view, it's the view of the Supreme Court. So, we do not have to reach too far back in our nation's history to see that a familiar cycle is unfolding. Denaturalization efforts have been clustered around both world wars and the Red Scare, and under the guise of national security, has been abused. As some folks abuse the administ uh the immigration system in targeting people, including immigrants, for their associations, for their speech and political beliefs. It's been abused in our history time and again. And yes, American citizenship, Mr. Chairman, is precious. It is precious. And those kids that I saw at high school, they believed that. They are committed to making this a better country, to making ours a better community. But broadening the administration's authority to strip citizenship would put twenty four point five million naturalized Americans at risk. And in April, I attended a naturalization ceremony back in Vermont, and I think a lot of my colleagues have done that in their states, and it's one of the most ennobling and inspiring experiences that we can have, to see a person who by choice has undertaken the si- the duties and responsibilities of citizenship. They see it as a responsibility. And they put in years of hard work in order to achieve that status. So yes, where there's fraud, where there's lying, and that is the basis upon which a person received a citizenship certificate, take it away. But not use this process to add to the attack on people so many of whom are here ille who are here legally and who have the aspirations of those young kids, graduates of high school that I met yesterday. I yield back.

Senator Durbin.

Thank you, Mr. Chairman. It was my honor to chair this subcommittee. For a number of years I tried to focus on issues related to the Constitution and fundamental civil and human rights. It is absolutely beyond me why with all the challenges facing America, we are talking about denaturalization of citizens. Since the president took office last year, he and his supporters have used every available tool at their disposal to target their political opponents. Last week, the Department of Homeland Security Secretary Mullen even threatened, despite the objections of the Transportation Secretary, to punish the so-called sanctuary jurisdictions by targeting their airports. And the president and his supporters have repeatedly used threats of denaturalization to chill political speech and intimidate naturalized Americans who dare to challenge Trump's policies. In my office in the capital, on the credenza behind my desk, is a grain document that is a naturalization certificate of my mother. She came to the United States at the age of two. brought here as an immigrant from Lithuania. After she was married and had two children, she decided to become a citizen of the United States. I have her naturalization certificate which she handed to me before she passed away. I'm proud of that, and I'm proud of the fact that it also declares that I'm a proud son of an immigrant. She's no longer with us, and therefore could not be threatened by anything that we say today at this hearing. But the thought of taking something so precious away from her, because of her political views doesn't sound like the America that she was aspiring to be part of. In thanks- in a Thanksgiving Truth Social post, the president even said, "denaturalize migrants who undermine domestic tranquility." If you're a student of the Constitution, look at that as a standard for removing the citizenship of one of your neighbors. This spring MAGA Congressman Chip Roy introduced the quote " Mamdani Act" of twenty twenty six, which aims to denaturalized individuals who advocate for socialism. Wonder what he defines as socialism? Medicare? Sound familiar? It should. These efforts harken back to Joe McCarthy, the tail gunner from Wisconsin, when naturalization was used as a tool to silence political dissidence. For the young people who are in the audience, I hope you've studied that era, but if you haven't, In the nineteen fifties, a Republican senator from the state of Wisconsin decided to start looking for those people who just might be communist in the United States government. Well, he had hearing after hearing, and at the end of the day there were disastrous results that hurt a lot of innocent people. There was talk of denaturalizing those people who turned out to be communist or even were sympathetic to them. Among them was Harry Bridges. Harry Bridges was a renowned Australian-born labor leader accused of being a communist. During that McCarthy era, he faced a relentless campaign to revoke his citizenship. But the Supreme Court ruled in H- Bridges' favor, not once but twice. In fact, the court has repeatedly held that stripping citizenship based on an individual's views or expressions, quote, would run counter to our traditions, unquote. The court placed a high burden on denaturalization to prevent the types of abuses we saw during the McCarthy era. Relying on the fourteenth amendment, the Supreme Court found that Congress does not have the power to take away any American citizenship unless that citizenship was unlawfully procured.

I'm sorry.

It is also held that all Americans are on equal footing in the eyes of the law,

It's not democratically necessary.

with with the exception of eligibility for the presidency. naturalized citizens are no different than those who were born here. With those high barriers under the law, the federal government now rarely engages in denaturalization. And when it does pursue it, it goes after war criminals and individuals who committed serious naturalization fraud. Even under the first Trump administration, only estimated one hundred and sixty people in four years were denaturalized. So why hold a hearing to discuss this rare process, the title of this hearing says it all, quote, " protecting American citizenship". Should American citizenship be, as the president and as mega-faithful have suggested, about fealty to one man and his ideology, or should it be about an individual's fealty to their country and our constitution? I happen to believe the latter. Just look at DACA recipients and dreamers. They grew up pledging allegiance to the flag and serving our country, each day as doctors, teachers and firefighters. They're Americans in every way, but they're paperwork and they deserve a path to citizenship in my estimation. But this administration is doing everything possible to stop hard-working immigrants, even those who follow every rule, from securing citizenship. Last week the administration issued a new policy of force, most that would force most applicants to go abroad to get a green card. After outcry from around the country, DHS claimed to roll back this policy, saying that applicants who quote " benefit the national interest and provide economic benefits would not be affected." The administration has not clarified what this means, but we can take an educated guess. Look at the refugee program. The president has barred all refugees from coming to the United States, except those whose admission it deems in the national interest. The only refugees The Trump administration has decided, or qualified so far, white Afrikaners. These policy changes, the targeting of DACA holders, new barriers to the green card, and an end to the refugee program are devastating to immigrants and American communities. They deserve our attention. Denaturalization? Just what decade are we talking about?

OK, at this point, uh, I will introduce the majority witnesses and then, um, Senator Welch will introduce the minority witness. Ken Cuccinelli is here. He's a senior fellow for the Center for Renewing America. Mister Cuccinelli has been a trial and appellate litigator, including constitutional law for over thirty years. He has served in many key roles, including as Virginia's Attorney General and the Acting Director of USCIS, and the Acting Deputy Secretary for the Department of Homeland Security. Mister Cuccinelli now serves as the senior fellow for Immigration and Homeland at the Center for Renewing America, in which position he conducts research and writes on matters related to his experience addressing immigration and protecting our homeland. Mister George Fishman is a senior legal fellow at the Center for Immigration Studies, where his scholarship focuses on these issues. Previously, he had served as a deputy general counsel at the Department of Homeland Security, acting chief counsel at USCIS, as a policy advisor to the president of the Unite of to the president in the Office of American Innovation and as special counsel to the House Homeland Security Committee. Mister Fishman also spent two decades as chief counsel for the US House Judiciary Committee subcommittee with jurisdiction over immigration. He's one of the nation's top denaturalization scholars.

Uh, thank you. And we have Professor uh Peter Spiro, who's the Charles Wiener Professor of Law at Temple University Beasley School of Law. who specializes in citizenship law and theory. Uh, the author of three books. I won't go through them, but, uh, uh, they'll be available.

Anywhere books are sold.

Anywhere books are sold, but thank you. And, uh, it serves on the Council on Foreign Relations. He served on the Open Society Institute and the European, uh, uh, University Institute. Previously served as Professor of Law at the University of Georgia. And, uh, this is a special note to me, a clerk for Chief Ju- uh for Justice Souter from New Hampshire, uh, an outstanding member of the of the of the judiciary, and he served as Director of Democracy and the staff of the National Security Council, as an Attorney Advisor in the US Department of State's Office, uh, of the Legal Advisor, and as a Resident Associate at the Carnegie Endowment for International Peace. Uh, Professor Spiro holds a BA from Harvard College and a JD from the University of

Okay, it's the tradition of this committee to swear in all the witnesses who testify before, so would you please stand and raise your right hand. Do you swear that the testimony you're about to give to this committee is the truth, the whole truth, and nothing but the truth, so help you God.

I do.

Thank you.

I'll be right back.

Okay, now that the witnesses have been sworn in, um you they'll give their opening statements and we'll begin with Mister Cuccinelli.

Thank you, Mister Chairman, American citizenship is the most valuable immigration that this nation confers, what the Supreme Court has called a priceless treasure. No foreigner may claim any right to it. And precisely because it is so consequential, Congress requires that those who seek citizenship through naturalization demonstrate that they deserve it, that they are persons of good moral character, attached to the principles of the Constitution, and well-disposed to the good order and happiness of the United States. That's the law of the United States. I had the honor as acting director of USCIS of administering the oath of allegiance to hundreds of new citizens. It was a moving experience every time, for me and for them. The oath, that oath is a solemn covenant. I'm here today because I'm deeply concerned our system is no longer holding applicants to the proof that the oath demands. History bears out that concern. The Clinton administration's Citizenship USA program made production the guiding principle at the expense of accuracy. More than a hundred and eighty thousand applications were processed without proper FBI fingerprint checks including eighty thousand that generated criminal records never reviewed before citizenship was conferred, eighty thousand. The weaknesses CUSA exposed, inconsistent standards, inadequate vetting, check the box adjudication have persisted in various forms ever since. When the front-end fails, denaturalization becomes essential. Operation Janus identified roughly three hundred and fifteen thousand cases with missing fingerprint data including at least eight hundred and fifty-eight individuals who had deportation orders, adopted false identities and naturalized without disclosing any of it. Operation Second Look proposed reviewing seven hundred thousand alien files for fraud, yet only a fraction of the cases identified were everly, ever thoroughly followed up. Two cases show what is at stake when the system fails and the tools uh to correct it are inadequate. On March twelfth of this year, Mohammed Bailar Jala, a naturalized citizen from Sierra Leone and convicted ISIS supporter, walked into a ROTC classroom in Old Dominion University, in my home state of Virginia, an open fire, killing Lieutenant Colonel Brandon Shaw, decorated combat veteran of Iraq and Afghanistan, and wounding two cadets. Despite his terrorism conviction, Jala was never denaturalized and deported. Under current law, terrorism is prima facie evidence of fraudulent procurement only within five years of naturalization. Because Jala's conduct fell outside that window, the government had no clear path. A brave American soldier died because of that gap. The case of Mirsad Ramak may be even more disturbing because this man never should have been naturalized at all. As the sixth circuit recently recounted, at his naturalization ceremony, Ramak refused to recite the oath of allegiance. Instead, he proclaimed an Islamic oath and cursed all nonbelievers. Let that sink in. He stood in an American courtroom. refused the oath the law requires, cursed those he called nonbelievers, and was naturalized anyway. What followed was tragically predictable. Ramek traveled to Syria, joined ISIS, fought in the siege of Kobani, a campaign that killed thousands and displaced hundreds of thousands, celebrated the beheading of Coptic Christians, and expressed hope that President Obama's daughters would be sold as slaves. The Sixth Circuit just vacated eight and a half year sentence as shockingly low, warning that court's refusal to incapacitate terrorists has deadly consequences, and cited the Old Dominion shooting that I just recited as proof. We must act on multiple fronts, strengthen the front-end so adjudicators conduct meaningful inquiries, and every applicant is thoroughly tested for hostility to American principles. Resource denaturalization, of Janus and second look continues and close the legal gaps. The five year window for terrorism as prima facie evidence of fraud is far too narrow. And frankly, I don't know why there would be any time limit on something as anti-American as terrorism. The Constitution entrusts Congress with plenary authority over naturalization. This is a problem you can solve, and I urge you to do so. American citizenship must mean something. When we cheapen it by conferring it on those who are hostile to everything it represents, we fail every immigrant who took the oath in good faith, every native-born citizen, and the nation itself. I look forward to hearing from the other witnesses and working with you to address this problem. I would note, you do have the person that I would call the nation's premier expert on the subject working for the US government, and that is Joe Edlow, who is currently the head of USCIS. He uh has been both an immigration lawyer, he has represented people in front of the government, he has been a nice prosecutor, and he has worked on denaturalization. He's literally worked on every aspect of this issue. Um, and he is a resource that you can readily call upon. Thank you.

Thank you, Mister Cuccinelli, Professor Spiro, we'll hear from you next.

Thank you, uh, Senator Lee, um, and distinguished members of the committee. and thank you for your uh invitation to testify before the subcommittee today about constitutional constraints on denaturalization. Any consideration of denaturalization must start with the elevated place that naturalization has held in our constitutional culture, since the nation's founding. As Justice Marshall remarked in the Supreme Court's eighteen twenty-four decision in Osborne versus Bank of the United States, the naturalized citizen " becomes a member of the society, possessing all the rights of a Native citizen and standing in the view of the Constitution on the footing of a Native. Naturalized citizens are co-equals in our constitutional order. They enjoy the same security of citizenship as enj- as is enjoyed by Native-born citizens. That security is nearly complete. As Justice Black wrote in Afrin versus Rusk, quote, " The fourteenth Amendment was designed to and does protect every citizen of this nation against a congressional forcible destruction of his citizenship." It is effectively impossible for Americans to lose their citizenship against their will. There is one respect in which the in which naturalized citizens stand on different footing than those born with citizenship, because naturalization involves a volitional act on the part of the applicant, and because naturalization is appropriately subject to eligibility requirements, there is the possibility of unlawful procurement. Where naturalization is unlawfully procured, it can be rescinded. But that remedy is highly constrained. The government shoulders a heavy burden in making a case for denaturalization. In line with repeated pronounce pronouncements of the Supreme Court and reflecting the sanctity of citizenship, however acquired, denaturalization can only be undertaken where supported by, quote, clear, unequivocal, and convincing evidence which does not leave the issue in doubt. Naturalization once conferred should not be taken away without the clearest sort of justification and proof." Denaturalization can only be triggered by circumstances incident to the naturalization application itself. There is no projecting forward of naturalization requirements where an individual possessed the statutory qualifications for naturalization at the time of naturalization. Proposals to expand denaturalization grounds can see this baseline. For example, S thirty-six seventy-four, the so-called scam act, aims to take post-naturalization conduct and relate it back to the naturalization application through the requirements of good moral character and constitutional attachment. But to take post-naturalization criminal activity, to reflect to reflect an applicant's quality some years earlier, presents an evidentiary exercise that hardly seems intelligible. Determinations of a legal procurement consider how the real facts would have affected a reasonable government official properly applying naturalization law, at the time of the naturalization application. Proposals to expand denaturalization would require the following type of inquiry. How would the government have determined good moral character? or some other qualification if it had known that an applicant was going to engage in certain conduct at some point in the future. That, senators, is crystal ball justice. This is particularly true where the government's case rests on issues of fraud or belief, spheres in which as Justice Frankfurter counseled in the Baumgartner case, quote, " proof is treacherous, an objective judgment even by the most uh, disciplined minds is precarious. At the very least, the proposals would open the door to arbitrary and inappropriately subjective speculations about a citizen's prior state of mind. Suggestion that post-naturalization associative activity should call into question qualifications for naturalization at the time of its granting would also pose serious concerns under the First Amendment. Make no mistake, if enacted into law, bills such as S thirty-six seventy-four would at the least be highly circumscribed by the courts. The Supreme Court may be friendly to the powers of the political branches in the context of immigration, but it takes an altogether more searching posture with respect to citizenship. In the meantime, legislative proposals relating to denaturalization, coupled with the Trump administration's aggressive deployment of existing sends a message to all naturalized citizens, some twenty-five million of them, that their citizenship is less secure than those of fellow Americans born with the status. Even if few actually suffer denaturalization, the message to all naturalized citizens is that their citizenship is second-class citizenship. Those seeking to police naturalization more aggressively may be seeking to better protect the institution of citizenship, But these efforts are more likely to diminish citizenship than they are to safeguard it. Thank you again for the invitation to testify today. I look forward to your questions.

Thanks, Professor Spiro. Mister Fishman, you're next.

Thank you. I am honored to have the opportunity to testify before you and the other members of the subcommittee today regarding the constitutional parameters of denaturalization. Over the past few months, three naturalized citizens have murdered or attempted to murder Americans in apparent terrorist attacks. It strains credibility to assert that when naturalized, they had met the requirement of being of good moral character, attached to the principles of the Constitution, and well-disposed to the good order and happiness of the United States, or that they truthfully professed when taking the oath to support and defend the Constitution, and renounce all allegiance and fidelity, uh, to nations of which they were once subjects. Why does it matter that they were naturalized? Naturalized citizens are not subject to deportation. They can serve in Congress, can vote in federal elections, and have an unfettered ability to work for the federal government. The Supreme Court has stated that citizenship obtained through naturalization is not second-class citizenship. but carries with it the privilege of full participation in the affairs of our society. Federal law provides that the government can seek to denaturalize those who illegally procure denaturalization or procure it by concealment of a material fact or by willful misrepresentation. The court has made clear that an applicant for naturalization must be in strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship, and failure to comply with any of these renders citizenship illegally procured. However, the court has also ruled that at least under current law, the government must provide clear, unequivocal and convincing evidence in a denaturalization proceeding. But the court has seemingly indicated that Congress could substitute a lower standard of proof. Can the government revoke naturalization based on behavior engaged in, or beliefs expressed post-naturalization? As one federal court put it, post-naturalization evidence can at best rise only to the level of evidential facts, as to a citizen's state of mind at naturalization. While the Supreme Court has expressed dubiousness as to whether disqualifying views expressed after denaturalist after naturalization or accurate representations of a citizen's views when he took the oath, the court has not held that they are insufficient proof as a matter of law. In nineteen fifty, a special subcommittee of this committee explained that during World War Two, the Supreme Court began to hold the government to such a strict standard of proof that it became very difficult to denaturalize citizens with Nazi sympathy sympathies. The subcommittee thus recommended enactment of a new federal law, providing that joining a subversive organization within five years after naturalization shall be presumptive but rebuttable evidence that naturalization was obtained unlawfully but it emphasized that this is not intended to place a condition subsequent upon naturalization, but rather simply to provide a to create a rule of evidence. The recommendation was enacted into law in the Internal Security Act of nineteen fifty and in modified form remains the law today. One difficulty in assessing the presumption's constitutionality is that it has rarely been invoked and as far as I can tell never been the subject of a federal court decision. But we can look for guidance at federal court decisions regarding other such presumptions. In nineteen thirteen, the Supreme Court concluded that for a legislative presumption of one fact from evidence of another, not to constitute a denial of due process of law or a denial of the equal protection of law, it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed. The court concluded that the denaturalization presumption it was reviewing passed this test. It stated that Congress has indicated its opinion that the intervening period may be as much as five years without rendering the presumption baseless. It noted that that period seems long, but that we are not prepared to pronounce it ex- certainly excessive or unreasonable. But the court cautioned that as the intervening time approaches five years, the presumption necessarily must weaken to such a degree as to require but slight countervailing evidence to un- to overcome it. Conversely, when the intervening time is so short as it is shown to have been in the present case, the presumption cannot be regarded as yielding to anything short of a substantial and convincing explanation. Thank you.

Thanks so much for your opening statements. Uh, we'll now turn to five minute rounds of questions. We'll be asking those in order of seniority, subject to the early bird rule. And, um, uh, we'll begin that now. Um, uh, first of all, I wanna I wanna thank uh the Committee Chairman, uh, Senator Eric Schmidt for giving us this chance to explore these important issues today at this hearing. Uh, I'm proud to cosponsor the Scam Act, uh, because I believe citizenship must be uh grounded in conduct that confirms rather than contradicts the promises made in connection with the naturalization process. This is meaningful in citizenship when it's granted through the naturalization process, uh, can't be secured through fraud. Now, Mister Fishman, I'd like to start with you if if possible, when a when an applicant takes an oath of citizenship, what obligations does that person undertake? Uh, just briefly.

Um, it it, the um, uh, which is right here, it's essentially, uh, the good work and happiness of the United States, uh, to the application of

Duty, allegiance, fidelity, the constitution. Yeah.

to the constitution, to absolutely renounce all allegiance uh to any government or prince or pope and take uh of a country that they were a subject of uh in the past. And reports have made it clear that ins- when a naturalized citizen or or an alien takes the oath to become a naturalized citizen, there's no opportunity at that time for the, for that person to be false examined. to determine whether they're truthfully stating that or not. It's not, you know, it's not like there was court litigation in the past for that.

Right.

That's something that can be considered later on. Were they truthfully professing the words they wanted to say?

Right, and it's neither arbitrary nor capricious for Congress to take this very seriously, because it's a serious matter to become a citizen of of a nation. It's why you don't want people having access to um uh the the citizenship through fraud. And if citizenship was obtained through fraud, that's a problem, and it's a problem that we ought to try to remedy. Is that correct?

Yes, sir.

Now, how would the founding fathers have viewed an applicant who may have deliberately fraudulently concealed affiliations, loyalties, conduct, uh, perhaps beliefs that are fundamentally at odds with the citizenship requirements?

My guess would be they would be aghast and would consider that appropriate to be an affiliation.

Right. W uh and and they made this clear. uh, that we don't really have to guess that much either. Uh, in the Naturalization Act of seventeen ninety, for example, uh, Congress required proof of good moral character and an oath to support the Constitution. And then in seventeen ninety-five, Congress amended that to add, uh, uh, requirements that applicants must be attached to the principles of the Constitution and well-disposed to the good character and happiness of the United States. Now, Mr. Cuccinelli, there is, I think, an important distinction uh between constitutionally protected um associations and affirmative misconduct including fraud violence insurrection insurrectionary activity or terrorism now if the government could properly deny naturalization to someone who applied to become a naturalized citizen um because of participation for example in a terrorist enterprise Why should it not be able to denaturalize that same person when the affiliation was deliberately, fraudulently concealed during the application process?

Well, they most certainly can. I think that, uh, Professor Spiro painted accurately the tall hill the government has to climb in a case-by-case basis.

Sure, it shouldn't be done for light or transient reasons, to be sure.

Correct, and you're not describing light or transient reasons. Um, and, uh, and that that is available. for various durations of time, not court tested in terms of the length of that time. Um, and of course the scam act would double the current period from five to ten years. Um, and uh, as yet we don't know how courts would respond to that, except that on the concept, uh, the courts have accepted that relevant behavior after naturalization that has a nexus with the obligations, uh, for naturalization, while it's rebuttable, is still an allowable form of evidence that can be used for denaturalization.

Right. Now, uh, given that certain, uh, transnational drug cartels have been deemed terrorist organizations, not not just willy-nilly, but because they're engaging in actual acts of terrorism,

Right.

n not all of them but some of them. Should cartel-related conduct affiliation with a cartel, working on behalf of a cartel, with a cartel, such a cartel as has been designated as a terrorist organization. Should that enter into the discussion? When considering denaturalization?

Well, most assuredly should. I mean, they are essentially uh n- quasi-state actors at war with the United States, uh, or at least victimizing the United States. And um and they are unlike, say, an Islamic terrorist organization that is motivated by religious precepts, uh, organized the the cartels are massive, literally to the level of government level.

Sometimes raveling their host state's government.

Well, they control territory in Mexico. They are the government of a sixth of Mexico, uh, by territory.

Some would put the number higher than that, but yes.

Some would. Well, another sixth is contested, as you note. with the federal government of Mexico. Um, and um, and they are uh, they use that, those resources and they wage war on the United States. So people assisting them, um, and it's not a formal state of war, they're not a formal government. Uh, nonetheless, those assisting them should be in the same boat as someone assisting ISIS. Uh, they're both ass- ass- attempting to, uh, victimize America and Americans. They're doing it quite intentionally. Um, and and uh, that should be more than enough.

Particularly with regard to those organizations that are in fact assisting ISIS. Is that right?

Well, that's r- that's certainly true.

Yep. Thank you, Mister Chairman, so you're coming first.

Yeah, I if I could,

Yep.

so one difference, I lumped them together, say an ISIS and a and a cartel, but one difference is that the cartel simply wishes to gratify its own desires, whereas, say an ISIS seeks to end the United States of America. And uh that is a that is a material difference between the goals of the two entities. So there is a meaningful difference between someone helping ISIS and someone helping uh say CJ and G out of Mexico. Uh nonetheless, the the personal impact in the United States may be the same, but the broader strategic goals of those individuals are very different.

Meaning given the proximity of the harm from CJ and G to the United States, if ISIS is operating primarily half a world away, C G N G is operating right across the border, uh, a- and if C G N G is is materially assisting ISIS or other, eh, international terrorist organizations, it can be difficult to differentiate that, uh, from ISIS or other terrorist organizations.

Well, in in those instances, absolutely.

Senator Ronoh.

Thank you.

I thought it was gonna be Senator Welch, but

He yielded to you because he's so, he's such a statesman.

Would you like to go?

No.

I wanna learn from you, Matt. Okay. Well, thank you very much. I think this is a fairly bizarre hearing, to tell you the truth. So President Trump spent all of twenty twenty four insisting that he was going to go after immigrants who commit serious crimes as so-called worst of the worst and yet he uh like with almost everything else that Trump has said in twenty twenty four and before that I might add uh that was a a lie. Instead, his regime has indiscriminately gone after all immigrants not just those who are undocumented, but legal immigrants and people who have done everything the right way. So a lot of people just get swept into this desire to uh on the part of mainly Stephen Miller apparently uh to uh get rid of immigrants in our country. So the the president has insisted that travel bans and visa processing suspensions affecting immigrants from ninety-two countries He's made it really tough for people from those countries to even get here. He has targeted international students with student visas, declining from ninety-one thousand to forty-two thousand from twenty twenty four to twenty twenty five. So you can imagine the impact uh this is having on our educational institutions, many of whom welcome students from abroad to add to the diversity, not to mention uh the payment of tuitions. And he has also tried to override the constitution by redefining or ge- basically getting rid of birthright citizenship through executive order that this is a case before the very Supreme Court. Denaturalization is just the latest step in this regime wreaking havoc on our already broken immigration system. Uh I'm trying to break it beyond repair from where I sit. And he is now telling twenty four million Twenty four million naturalized Americans, that their citizenship can be questioned. And I think when I say this hearing is bizarre, I mean you're gonna use conduct that occurs ten years after the naturalization was conducted or the application for naturalization was submitted and conduct ten years later to somehow go back to a point of the application to determine whether there was fraud committed. It's uh that's very bizarre. So, twenty four million already naturalized citizens. Uh I happen to be the only naturalized citizen sitting on this commite- on this committee. And I am horrified by the implication that naturalized citizens basically get second class citizenship. Not only uh should they be commit crimes, yes, as citizens they should be prosecuted like any other US citizen, but what this uh laws or bills like the scam act does is to subject the naturalized citizen to even more um uh harm or or or more than what would be visited upon a US citizen, which a naturalized citizen by definition is. So let's be clear, this has never been about law and order for for the Republicans, this is all about getting immigrants. It's about terrorizing immigrant com communities, whether it be ICE officers who are um acting outside of what one would call consider reasonable behavior, and uh using our immigration system as a pretext basically to keep certain people out of our country. As a naturalized citizen, I'm proud of it, um I can't think of a more undemocratic un-American thing to do to someone who chooses to become a US citizen to hold this over their heads and treat us like second class citizens. I do have some questions, but I am I no, I still have some time. I have a a question for um Professor Excuse me, there's one professor sitting there in the middle, okay. Professor Spiro. So what do you think about this effort? Like efforts like the the the um uh the act that I just talked about. The You mentioned it. What do you think about the the this effort to try and impose even more requirements on naturalized citizens than we do on citizens?