Revocation of Citizenship

Revocation of Citizenship

The Im m ig ratio n and N aturalization Service h as authority to institute either adm inistrative o r judicial
p ro ceed in g s to d en atu ralize citizens w hose crim inal convictions disqualified them from citizenship
as a m atter o f law . W hether the proceedings are adm inistrative o r judicial, the INS m ust establish
th e alleg atio n s in its com plaint by clear, unequivocal, and convincing evidence.

T he IN S has no authority to seek denaturalization if th e INS exam iner had discretion to find that
an ap p lican t w as o f good m oral character, and in fact did exercise that discretion so as to find
that the ap p lican t w as o f good moral character, unless the IN S establishes in its com plaint by
clear, uneq u iv o cal, and convincing evidence either that the applicant gave false testim ony with
the inten tio n o f ob taining an im m igration benefit o r that the exam iner’s decision resulted from
the a p p lic a n t's w illful m isrepresentation o r concealm ent o f a m aterial fact.

The IN S m ay seek d en aturalization if the applicant m ade a false oral statem ent under oath (regardless
o f w h eth er the testim ony is material) w ith the subjective intent o f obtaining im m igration benefits.
A ltern ativ ely , th e IN S m ay seek denaturalization if the applicant procured naturalization by
con cealm en t o r w illful m isrepresentation o f a m aterial fact In either case, the INS m ust prove
its co m p lain t by clear, unequivocal, and convincing evidence.

March 3, 1997

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
Im m ig r a t io n a n d N a t u r a l iz a t io n S e r v ic e

You have asked for our opinion on certain questions that were originally raised
by the House Subcommittee on National Security, International Affairs, and
Criminal Justice o f the Committee on Government Reform and Oversight, in
connection with the Immigration and Naturalization Service’s (“ INS” ) naturaliza­
tion program .' We begin by outlining the legal principles governing proceedings
for denaturalization (or revocation o f citizenship). See Parts I—III below. In light
of those principles, we then answer the particular questions you have posed. See
Part IV below.

I.

The controlling statute, the Immigration and Nationality Act ( “ INA” ) § 340(a),
8 U.S.C. § 1451(a) (1994), reads in relevant part as follows:

l See M emorandum for Dawn Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, from the
Office o f the General Counsel, Immigration and Naturalization Service, Re Request fo r OLC Opinion, Revocation
o f Naturalization: “Discretionary Approvals" and M isstatements (Feb. 21, 1997) (the “ INS Request” ).
Following the rule stated long ago by former Attorney General Murphy, this Office ordinarily declines to provide
legal opinions in response to requests from Congress, its committees, or its Members, or to other persons or entities
outside the executive branch. See Request o f the Senate fo r an Opinion as to the Powers o f the President "In
Emergency o r State o f W ar”, 39 Op. Att’y Gen. 343, 347 (1939); see also Office o f Legal Counsel— Limitation
on Opinion Function, 3 O p O.L.C. 215 (1979). In this case, however, the request for an opinion has come to
us from your agency, not from Congress

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 Revocation o f Citizenship

It shall be the duty of the United States attorneys for the respec­
tive districts, upon affidavit showing good cause therefor, to
institute proceedings in any district court of the United States in
the judicial district in which the naturalized citizen may reside at
the time of bringing suit, for the purpose of revoking and setting
aside the order admitting such person to citizenship and canceling
the certificate of naturalization on the ground that such order and
certificate of naturalization were illegally procured or were pro­
cured by concealment of a material fact or by willful misrepresenta­
tion . . . ,[2]

Section 340(a) provides two distinct legal bases for denaturalization or revoca­
tion of citizenship. The first permits the INS to seek revocation if the naturalized
person has procured citizenship illegally. “ [T]here must be strict compliance with
all the congressionally imposed prerequisites to the acquisition of citizenship.
Failure to comply with any of these conditions renders the certificate of citizenship
‘illegally procured;’ and naturalization that is unlawfully procured can be set
aside.” Fedorenko v. United States, 449 U.S. 490, 506 (1981).
Second, revocation is available if the person procured naturalization “ by
concealment of a material fact or by willful misrepresentation.” INA § 340(a),
8 U.S.C. § 1451(a).3 Denaturalization on this basis “ plainly contains four inde­
pendent requirements: the naturalized citizen must have misrepresented or con­
cealed some fact, the misrepresentation or concealment must have been willful,
the fact must have been material, and the naturalized citizen must have procured
citizenship as a result of the misrepresentation or concealment.” Kungys v. United
States, 485 U.S. 759, 767 (1988).
Whichever of these two theories the INS pursues in seeking denaturalization,
it must prove the allegations in its complaint “ by ‘ “ clear, unequivocal, and con­
vincing” evidence which does not leave “ the issue in doubt.” ’ ” Id. at 781 (cita­
tion omitted); see also id. at 772; Fedorenko, 449 U.S. at 505; Polites v. United
States, 364 U.S. 426, 435 (1960); Chaunt v. United States, 364 U.S. 350, 355
(1960); Schneiderman v. United States, 320 U.S. 118, 123, 125 (1943).4
Once the United States has met its burden in a judicial denaturalization pro­
ceeding, the court must enter an order revoking the naturalization order and can­

2The provision is undoubtedly constitutional. “ The power of Congress to provide for denaturalization of natural­
ized citizens has long been viewed as an incident of its authonty ‘[tjo establish a uniform Rule of Naturalization,’
U.S. Const art I, §8, cl 4, and necessary to protect the integrity o f the naturalization process . . Conceptually,
denaturalization does not fall within the general rule that citizenship can only be lost by voluntary action, because
denaturalization is intended to redress errors in the naturalization proccss that would disentitle the individual to
United States citizenship ab in itio " Voluntariness o f Renunciations o f Citizenship Under 8 U S.C. § 1481(a)(6),
8 Op O L C 220, 226 n 14 (1984) (citations omitted)
1See Costello v Untied States, 365 U S 265, 272 (1961), Knauer v. United States, 328 U S 654, 671-74 (1946),
United States v Kowalchuk, 773 F 2d 488, 494 (3d Cir 1985) (en banc), cert denied, 475 U S. 1012 (1986).
4 See 4 Charles Gordon et al , Immigration Law and Procedure § 100 02f4][d][iv] at 100-38 (1996) (INS’ burden
is “ conceptually not quite as exacting” as proof beyond a reasonable doubt)

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celing the certificate of naturalization. Fedorenko, 449 U.S. at 518. The court
“ lackfs] equitable discretion to refrain from entering a judgment of
denaturalization.” Id. at 517.
Although proceedings for denaturalization have traditionally been judicial in
character, administrative denaturalization is also permissible in some cir­
cumstances. We understand that, if the INS institutes denaturalization proceedings
with regard to any of the naturalization cases approved between September 1995
and September 1996 that are currently the subject of a congressional investigation,
those proceedings will ordinarily be administrative.
The relevant INA regulation, which was promulgated under the authority of
INA § 340(h), see Revocation o f Naturalization, 61 Fed. Reg. 55,550 (1996) (to
be codified at 8 C.F.R. pt. 340),5 provides a procedure for the reopening of natu­
ralization proceedings by the district director under whose jurisdiction a natural­
ized citizen resides. The regulation authorizes the INS to “ reopen a naturalization
proceeding and revoke naturalization in accordance with this section, if the Service
obtains credible and probative evidence which: (1) Shows that the Service granted
the application by mistake; or (2) Was not known to the Service Officer during
the original naturalization proceeding; and . . . (i) Would have had a material
effect on the outcome of the original naturalization [proceeding]; and (ii) Would
have proven that: (A) The applicant’s application was based on fraud or misrepre­
sentation or concealment o f a material fact; or (B) The applicant was not, in fact,
eligible for naturalization.” Id. at 55,553-54 (to be codified at 8 C.F.R.
§ 340.1(a)). Notice of intent to reopen naturalization proceedings “ must be served
no later than 2 years after the effective date of the order admitting a person to
citizenship,” id. at 55,553 (§ 340.1(b)(1)), i.e., two years after the naturalized cit­
izen has taken the oath of allegiance to the United States. The naturalized person
has the opportunity to respond and may request a hearing, id. at 55,553
(§ 3 4 0 .1(b)(3)), and has a right to counsel, id. at 55,554 (§ 340.1(b)(5)). The bur­
den o f proof in such administrative proceedings — as in judicial denaturalization
cases — is on the INS to prove its complaint by clear, unequivocal and convincing
evidence.6 A decision adverse to the naturalized citizen may be appealed adminis­
tratively, id. at 55,554 (§ 340.1(e)), and, if the administrative appeal is also adverse

5 Statutory authority for administrative denaturalization proceedings was enacted in 1990, when Congress vested
the A ttorney General with the "so le authority to naturalize persons as citizens o f the United States." Immigration
Act o f 1990, Pub. L. No. 101-649, §401(a), 104 Stat. 4978, 5038, codified at INA §310(a), 8 U.S.C. § 1421(a)
(1994). A t the same time. Congress extended to th e Attorney General the authority to “ correct, reopen, alter, modify
or vacate an order naturalizing [a] person*' that had previously been vested in naturalization courts. Id.
§407(d)(18)(D ), 104 Stat. at 5046, codified at IN A §340(h), 8 U S C . § 1451(h) (1994). See Magnuson v. Baker,
911 F.2d 330, 335 n . l l (9th Cir. 1990) (construing the predecessor to § 340(h) to grant the naturalization courts
“ the inherent authority to set aside [naturalization] judgments for any reason cognizable under Federal Rule of Civil
Procedure 6 0 .” ); see generally Sim ons v. United States, 452 F.2d 1110, 1112—14 (2d Cir. 1971) (Friendly, J.) (out­
lining legislative intent o f prior law).
6The IN S' field guidance explains the Government’s burden. See Implementation Guidance: INA § 340(h); 8 C F.R.
§ 340: Standards fo r Issuance o f Notice o f Intent to Reopen Naturalization Proceedings and to Revoke Naturalization.

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to that individual, he or she may seek judicial review under INA § 310, 8 U.S.C.
§ 1421. Id. at 55,554 (§ 340.1(f)).

II.

In this Part, we examine revocation of citizenship on the first of the two bases —
that naturalization was illegally procured. In Part III below, we turn to the second
basis for denaturalization — that naturalization was procured by concealment of
a material fact or willful misrepresentation.
As we have noted above, an alien may be naturalized only upon “ strict compli­
ance with the . . . ‘terms and conditions specified by Congress.’ ” INS v.
Pangilinan , 486 U.S. 875, 884 (1988) (quoting United States v. Ginsberg, 243
U.S. 472, 474 (1917)). See also INA § 310(d), 8 U.S.C. § 1421(d) ( “ A person
may only be naturalized as a citizen of the United States in the manner and under
the conditions prescribed in this title and not otherwise” ) (emphasis added);
Maney v. United States , 278 U.S. 17, 22 (1928) (Holmes, J.); Tutun v. United
States, 270 U.S. 568, 578 (1926) (Brandeis, J.); Johannessen v. United States,
225 U.S. 227, 240-42 (1912); Schneiderman , 320 U.S. at 161-62 (Douglas, J.,
concurring); United States v. Beda, 118 F.2d 458, 459 (2d Cir. 1941) (A. Hand,
J.). The ordinary prerequisites for naturalization are set forth in INA §316, 8
U.S.C. § 1427 (1994), and include requirements as to lawful residence in the
United States,7 good moral character, attachment to the principles of the United
States Constitution, and favorable disposition to the United States. At the time
of applying for naturalization, the applicant bears the burden of establishing that
he or she possesses the qualifications for citizenship. INA § 316(e), 8 U.S.C.
§ 1427(e); INA §318, 8 U.S.C. § 1429 (1994). The standard of proof is whether
the applicant has established the necessary facts by a preponderance of the evi­
dence. See 8 C.F.R. § 316.2(b) (1997).
The requirement that the applicant be of good moral character is particularly
relevant to the questions you have posed. A finding of good moral character is
precluded as a matter of law if, within the statutory period required for establishing
good moral character, the applicant falls within any of several categories set forth
in INA § 101(f)(1)—(8), 8 U.S.C. § 1101(f)(l)-(8) (1994). These legally disquali­
fying categories include, among others, being an habitual drunkard; deriving one’s
income principally from illegal gambling; having two or more gambling convic­
tions; and having been confined, as a result of a conviction, to a penal institution
within the statutory period for 180 days or more. Of chief relevance here, the
disqualifications include being “ one who at any time has been convicted of an
aggravated felony,” INA § 101(f)(8), 8 U.S.C. § 1101(f)(8), or having other

7 Accordingly, naturalization may be revoked for failure to enter the United Slates lawfully by means of a valid
immigrant visa See. e.g.. Fedorenko, 449 U S at 514-15; United States v Schmidt, 923 F2d 1253, 1257 (7th
C ir), cert denied, 502 U S 921 (1991); Kowulchuk, 773 F.2d at 492-93

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criminal convictions or offenses detailed by the statute, INA § 101(f)(3), 8 U.S.C.
§ 1101(f)(3), or “ one who has given false testimony for the purpose of obtaining
any benefits under this Act,” INA § 101(f)(6), 8 U.S.C. § 1101(f)(6). In Part 11(A)
below, we consider disqualifications based on a criminal record; in Part 11(B),
we turn to disqualifications based on false testimony.

A.

As we have noted, it is a requirement of being naturalized that the applicant
be “ a person o f good moral character.” INA § 316(a)(3), 8 U.S.C. § 1427(a)(3).
As a matter of law, no applicant can be found to be “ of good moral character”
if he or she “ at any time has been convicted of an aggravated felony.” INA
§ 101(f)(8), 8 U.S.C. § 1101(f)(8).8 Similarly, as a matter of law, no applicant
is “ of good moral character” if he or she has been convicted of, or has admitting
to committing, certain other offenses within a specified period of time. INA
§ 101(f)(3), 8 U.S.C. § 1101(f)(3).9 Accordingly, should the INS discover that a
naturalized person, as a matter of law, had not satisfied the “ good moral char­
acter” requirement because of disqualifying criminal convictions or offenses that
fell within INA § 101(f)(3) or (f)(8), it could seek revocation on the grounds that
that person’s citizenship was “ illegally procured,” INA § 340(a), 8 U.S.C.
§ 1451(a). No statute o f limitations applies to a judicial denaturalization pro­
ceeding under section 340(a).10 N or would the INS be estopped from seeking

8The definition of “ aggravated felony” for this purpose is set forth in INA § 101(a)(43), 8 U.S C § 110I(a)(43).
“ The legality of the [individual’s] naturalization must be determined under the applicable provisions of the statutes
as they were at the time of his admission to citizenship ” United States v Riela, 337 F 2d 986, 989 (3d Cir. 1964).
The INS has concluded that aggravated felonies other than murder bar a finding of good moral character as a
matter of law only if the conviction occurred on or after November 29, 1990, relying on section 509(b) of the
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat 4978,5051 (1990) (“ IMMACT” ), as amended by Miscella­
neous and Technical Immigration and Naturalization Amendments of 1991, Pub L. No. 102-232, § 306(a)(7), 105
Stat 1733, 1751 (1991) ("1991 Technical Amendments” ). IMMACT §509(a) struck out the reference in prior INA
§ 101(0(8), 8 U.S C. § 1101(0(8), to the “ crime o f murder” as p e r se disqualifying, and inserted instead the more
general term "aggravated felony ” IMMACT § 509(b), however, made the new disqualification for aggravated felo­
nies applicable only prospectively, i.e., to convictions occurring on or after IMMACT’s effective date (November
29, 1990). The 1991 Technical Amendments § 306(a)(7) reinstated a conviction for murder as per se disqualifying,
regardless of the time of the conviction. Nonetheless, it is the INS’ view that an aggravated felony conviction for
a crime other than murder, entered at any time before November 29, 1990, would be relevant in the broader deter­
mination of whether a person is of good moral character See Legal Opinion, INS General Counsel, Amended defini­
tion o f “a g g ra va te d fe lo n y " and the section 101(f)(8) bar to good m oral character at 2 (Dec. 3, 1996)
9 Most convictions (other than aggravated felonies) bar a finding of good moral character only if the conviction,
or the applicant’s incarceration or probation, occurred during the statutory period for which the applicant must prove
good moral character (which, as a general rule, covers the period of five years preceding the application for naturaliza­
tion and the interval between the application for naturalization and the naturalization ceremony itselO- Compare
INA §101(0(8), 8 U.SC. §1101(0(8), with introductory text and other paragraphs in INA §101(0* 8 U S C.
§ 1101(0. See also 8 C.F R § 316.10(b)(1), (2) & (c)(1) (1997).
105W Schneiderman, 320 U S at 174 (Stone, C.J., dissenting); 4 Gordon et. al, supra note 4, § I00.02[1][e] at
100-9. Thus, the Government sought to denaturalize the petitioner in Costello in 1952, and again in 1958, although
he had been naturalized in 1925. See Costello, 365 U.S. at 266-68.

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denaturalization if naturalization was illegally procured because INS agents failed
to exercise due diligence in examining the application for naturalization.11
On the other hand, in reviewing an application for naturalization, the INS exam­
iner has a certain degree of discretion in determining whether the applicant has
satisfied the statutory requisites. For example, an examiner may take account of
adverse conduct that is outside the statutory period for which good moral character
is required to be established. See INA § 101(f) (last sentence), 8 U.S.C. § 1101(f),
and INA § 316(e), 8 U.S.C. § 1427(e). Although the prior misconduct may justify
the examiner in denying naturalization, it does not require such a determination.
Thus, an examiner could conclude, based on the totality of the facts, that an
applicant with such a record had demonstrated “ good moral character” and was
eligible for naturalization. Assuming that that person had satisfied all the other
statutory prerequisites and was naturalized, there would be no basis for the INS
to seek revocation of citizenship in such circumstances.
Suppose, for example, that an applicant has been convicted of a theft. Assume
that the conviction occurred many years before the applicant sought naturalization,
that any incarceration was ended before the statutory period (normally 5 years
before naturalization), and that the offense was not sufficiently serious to qualify
as an aggravated felony. The applicant disclosed the conviction to the examiner.
The examiner considered the conviction, but concluded that the applicant had
shown sufficient evidence of reformation that the conviction did not prove that
the applicant was not currently a person of good moral character. See 8 C.F.R.
§ 316.10(a)(2). Because the conviction would not in this case preclude a finding
of good moral character, granting naturalization would be within the discretion
of the examiner: the applicant had disclosed the relevant information, and the
examiner was satisfied that the applicant was eligible. Although a different exam­
iner, on the same facts, might have found that the applicant did not meet the
good moral character requirement, id., there would be no basis for revocation:
the facts would show neither that the applicant misrepresented or concealed mate­
rial facts, nor that the applicant was statutorily ineligible for naturalization.

B.

As pointed out above, only persons of good moral character are legally eligible
for naturalization. INA § 316(a)(3), 8 U.S.C. § 1427(a)(3). An examiner cannot
find an applicant to be of good moral character if, during the period for which
good moral character is required, the applicant “ has given false testimony for
the purpose of obtaining any benefits under [the INA].” Id. § 101(f)(6), 8 U.S.C.

11 See Fedorenko, 449 U S. at 517 (court lacks “ equitable discretion” to decline to enter denaturalization judgment
once INS has proven failure to have met statutory requirements for naturalization); see also Reno v Catholic Social
Servs . Inc , 509 U S. 43, 75-76 (1993) (O’Connor, J., concurring in judgment) Cf Office o f Personnel Management
v Richmond, 496 U S 414, 419-24 (1990) (questioning but not deciding whether estoppel ever lies against the
Government)

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§ 1101(f)(6). In Kungys, 485 U.S. at 779-81, the Supreme Court set forth the
elements of this provision.
First, in contrast with the “ misrepresentation” and “ concealment” provisions
of INA § 340(a), 8 U.S.C. § 1451(a), there is no requirement that “ false testi­
mony” within the meaning of INA § 101(f)(6) be material.

The absence of a materiality requirement in [8 U.S.C.] § 1101(f)(6)
can be explained by the fact that its primary purpose is not (like
[8 U.S.C.] § 1451(a)) to prevent false pertinent data from being
introduced into the naturalization process (and to correct the result
of the proceedings where that has occurred), but to identify lack
of good moral character. The latter appears to some degree when­
ever there is a subjective intent to deceive, no matter how immate­
rial the deception.

Kungys, 485 U.S. at 780.
Second, “ testimony” in the sense in question “ is limited to oral statements
made under oath . . . . [I]t does not include ‘other types of misrepresentations
or concealments, such as falsified documents or statements not made under
oath.’ ” Id. at 780 (citation omitted).
Third, 8 U.S.C. § 1101(f)(6) “ applies to only those misrepresentations made
with the subjective intent of obtaining immigration benefits.” Id.
Finally, “ unlike the misrepresentation clause of [8 U.S.C.] § 1451(a), the false
testimony provisions of § 1101(f)(6) do not apply to ‘concealments.’ ” Id. at 781.
To illustrate how this provision operates, suppose that an applicant gave an
INS examiner false testimony under oath on a matter that had no bearing on the
applicant’s eligibility for naturalization. Even though the truth, itself, would not
require denying naturalization, the false testimony might do so, by rendering the
applicant disqualified for lack of good moral character. However, denaturalization
could not be based on the bare misrepresentation itself. Should the INS seek
denaturalization on the basis of “ false testimony,” it would be required to show,
by clear, unequivocal and convincing evidence, that the defendant had given the
“ false testimony” with the subjective intent of obtaining the benefits of the
INA — for example, because the applicant mistakenly believed that the informa­
tion would preclude naturalization. Making such a showing would often pose
substantial proof problems for the INS. See Kungys, 485 U.S. at 780 (“ [I]t will
be relatively rare that the Government will be able to prove that a misrepresenta­
tion that does not have the natural tendency to influence the decision regarding
. . . naturalization benefits was nonetheless made with the subjective intent of
obtaining those benefits.” ).12 Moreover, in a decision that the Supreme Court

12 But see id. at 807 n 3 (White, J , dissenting) ( “ [I]t is quite clear that when misrepresentations of fact are made
in the process of applying for immigration and naturalization benefits, in a very real and immediate sense those
misrepresentations are made ‘for the purpose of obtaining’ such benefits ” ).

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reversed on other grounds, one court of appeals has further restricted the INS’
ability to prevail on a “ false testimony” claim by holding that the naturalized
individual must have given the challenged oral statements under oath before a
court or tribunal. See Phinpathya v. INS, 673 F.2d 1013 (9th Cir. 1981), rev ’d
on other grounds, 464 U.S. 183 (1984).13

III.

The second principal basis on which the INS may seek denaturalization under
INA § 340(a), 8 U.S.C. § 1451(a), is that naturalization was procured by “ conceal­
ment of a material fact” or by “ willful misrepresentation.” As explained above,
denaturalization on the basis of this theory would require the INS to show, under
“ the unusually high burden of proof in denaturalization cases,” Kungys, 485 U.S.
at 776, that there existed a misrepresentation or concealment that was willful and
of a material fact, and that “ the naturalized citizen [had] procured citizenship
as a result of the misrepresentation or concealment.” Id. at 767.
Not every misrepresentation or concealment is of a “ material” fact. To be
“ material,” the misrepresentation or concealment must be shown to be “ predict­
ably capable of affecting, i.e., [having] a natural tendency to affect, the official
decision . . . whether the applicant [met] the requirements for citizenship” or,
more specifically, “ whether the misrepresentation or concealment had a natural
tendency to produce the conclusion that the applicant was qualified.” Id. at 771-
72 (Scalia, J., joined by Rehnquist, C.J.); see also id. at 783 (Brennan, J., concur­
ring) (joining lead opinion and agreeing with its construction of provision, but
writing separately to state view that “ a presumption of ineligibility does not arise
unless the Government produces evidence sufficient to raise a fair inference that
a statutory disqualifying fact actually existed” ); id. at 801 (O’Connor, J., concur­
ring in part of lead opinion in which this test of materiality was set forth); id.
at 803 (White, J., agreeing with part of lead opinion in which this test is set
forth).14 Relying on this test, the Supreme Court has held that a misrepresentation
of an applicant’s date and place of birth in a naturalization proceeding was not

13Apparently, whether the naturalization examiner is a “ tribunal” is a question that the Ninth Circuit has not
yet addressed C f Toquero v. INS, 83 F 3d 429 (9th Cir. 1996) (not designated as a published precedent).
14Commentators have suggested that the various separate opinions in Kungys, particularly on the test of the materi­
ality of a misrepresentation or concealment, has produced “ confusion and uncertainty ” 4 Gordon et a l , supra note
4, § 100£2[3][b] at 100-15 One court of appeals has stated that “ [ajfter Kungys, . it is no simple task to
define the meaning of 'material* under the denaturalization statute The eight Justices who decided Kungys (Justice
Kennedy did not participate) wrote five separate opinions and offered three distinct tests for determining when a
statement is material.” United States v. Puerta, 982 F 2d 1297, 1302 (9th Cir. 1992). In this court’s view, the
controlling test is that set forth m Justice Brennan’s concurring opinion in Kungys, id at 1303-04 It understood
that test to permit denaturalization only ‘‘where false statements are coupled with evidence giving nse to a ‘fair
inference’ of ineligibility ” Id. at 1304 (quoting Kungys, 485 U.S at 783 (Brennan, J , concurring))
We note that the Supreme Court has recently framed the question whether materiality of falsehood is an element
of a violation of 18 U.S.C § 1014 in terms of the explanation of ‘‘materiality” given in the lead opinion in Kungys
See United States v Wells, 519 U S 482, 489-90 (1997). It might therefore be argued that the Court has implicitly
adopted the definition in the lead opinion

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“ material” as that term is used in INA § 340(a). Id. at 774. “ There has been
no suggestion that those facts were themselves relevant to [the applicant’s] quali­
fications for citizenship. Even though they were not, the misrepresentation of them
would have a natural tendency to influence the citizenship determination, . . .
if the true date and place of birth would predictably have disclosed other facts
relevant to his qualifications. But not even that has been found here.” Id.
Thus, not every willful misrepresentation or concealment of an applicant’s
criminal record is a sufficient basis for denaturalization. In Chaunt, the Supreme
Court held that a naturalized citizen who had willfully and falsely stated during
the naturalization process, in writing and (apparently) orally under oath, that he
had never been arrested could not be denaturalized under INA § 340(a). The Court
indicated that it would not find the misrepresentation “ material” merely because
of “ the tenuous line of investigation that might have led from the arrests to the
[applicant’s] alleged communistic affiliations.” 364 U.S. at 355. See also United
States v. Sheshtawy, 714 F.2d 1038 (10th Cir. 1983) (no basis for denaturalization
when naturalized citizen had willfully and falsely answered question on INS form
regarding prior arrests). But see C ostello v. United States, 365 U.S. 265 (1961)
(naturalized citizen could be denaturalized when he had willfully and falsely stated
during naturalization process that his occupation was “ real estate” although it
was, in fact, that of bootlegger); United States v. Oddo, 314 F.2d 115 (2d Cir.)
(Thurgood Marshall, J.) (concealment of arrests in naturalization process justified
revocation, especially in view of seriousness of charges for which arrests were
made), cert, denied, 375 U.S. 833 (1963); United States v. Montalbano, 236 F.2d
757 (3d Cir. 1956) (misrepresentation of criminal record during naturalization
process held to be basis for revocation of citizenship); Corrado v. United States,
227 F.2d 780, 783 (6th Cir. 1955) (same as to concealment), cert, denied, 351
U.S. 925 (1956). We note also that if the applicant has personally corrected prior
misrepresentations or concealments by making a full and complete disclosure later
in the naturalization process, that corrective action may remove any basis for rev­
ocation. Cf. United States v. Anastasio, 226 F.2d 912, 917 (3d Cir. 1955), cert,
denied, 351 U.S. 931 (1956) (because applicant in second naturalization pro­
ceeding disclosed criminal record he had concealed in first proceeding, there was
no basis for revocation).

IV.

In light o f these principles, we now turn to the particular questions you have
posed.
Question 1. What authority does the Department have to revoke the citizenship
of individuals who were naturalized but had criminal convictions for offenses that
disqualified them from citizenship as a matter o f law?

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Answer. The INS has authority to institute either administrative or judicial pro­
ceedings to denaturalize citizens whose criminal convictions, e.g., for aggravated
felonies, disqualified them from citizenship as a matter of law. (Administrative
proceedings are subject to judicial review.) See Part 11(A) above. Whether the
proceedings are administrative or judicial, the INS must establish the allegations
in its complaint by clear, unequivocal and convincing evidence. See Part 1 above.
Question 2. What authority does the Department have to revoke the citizenship
of individuals who were naturalized but had criminal records for offenses that
did not disqualify them from citizenship as a matter of law, but which, in the
discretion of the INS examiner, could have supported a conclusion that the indi­
vidual was not of good moral character?
Answer. The INS has no authority to seek denaturalization if the INS examiner
had discretion to find that an applicant was of good moral character, and in fact
did exercise that discretion so as to find that the applicant was of good moral
character, unless the applicant gave false testimony with the intention of obtaining
an immigration benefit, or unless the examiner’s decision resulted from the
applicant’s willful misrepresentation or concealment of a material fact. See Parts
II and III above.
Question 3. If individuals with convictions described in question 2 could be
denaturalized, what legal requirements would have to be observed in the process?
Answer. The elements that the INS would be required to show to establish either
false testimony or willful misrepresentation (or concealment) of a material fact
are set forth in Parts 11(B) and III above. On either theory, the INS would be
required to establish its complaint by clear, unequivocal and convincing evidence.
Question 4. Is there any legal basis for revoking citizenship based upon the
absence of information in the government’s records at the time of the naturaliza­
tion about whether the individual had been convicted of a per se disqualifying
offense or an offense which could have supported a finding of bad moral char­
acter?
Answer. The absence of information in INS records at the time of the naturaliza­
tion is not determinative in a denaturalization proceeding. A certificate of citizen­
ship is illegally procured if the applicant has not strictly complied with all the
congressionally imposed prerequisites to the acquisition of citizenship. Hence, if
later-discovered evidence establishes that a naturalized citizen failed to satisfy a
legally mandatory requirement of naturalization, the INS may institute
denaturalization proceedings in that case. Similarly, if the absence of information
is attributable to the willful concealment or misrepresentation of a material fact
by the applicant, and the applicant procured citizenship as a result of that misrepre­
sentation or concealment, the INS may institute denaturalization proceedings. See
Parts II and III above.
Question 5. What is the standard for revoking citizenship based on
misstatements? Does this standard differ from the standard for denying an applica­
tion based on a misstatement?

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Answer. The INS may seek denaturalization based on a showing that the natural­
ized person has given false testimony for the purpose of obtaining a benefit under
the INA. The INS need not prove the materiality of such false testimony, but
must show that the misrepresentation was made with the subjective intent of
obtaining immigration benefits. The testimony in question must have been an oral
statement made under oath. The INS must prove its complaint by clear,
unequivocal and convincing evidence. See Part 11(B) above.
Alternatively, the INS may seek denaturalization based upon a showing that
the naturalized person procured naturalization by concealment of a material fact
or by willful misrepresentation. Proof of the materiality of the misrepresentation
or concealment is required. Again, the INS must prove its complaint by clear,
unequivocal and convincing evidence. See Part HI above.
The standard for denying an application differs from the standard for
denaturalization in two pertinent respects. First, an application for naturalization
should be denied if the INS examiner is not satisfied that the applicant has shown,
by a preponderance o f the evidence, that he or she satisfies the statutory require­
ments for naturalization. In contrast, the INS bears the burden in a denaturalization
proceeding of proving its case by clear, unequivocal and convincing evidence.
Second, while the INS examiner has discretion, in some circumstances, to deter­
mine whether or not an applicant for naturalization is of good moral character,
that discretion does not extend to the denaturalization process. See Part 11(A)
above.

DAWN E. JOHNSEN
Acting Assistant Attorney General
Office o f Legal Counsel

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