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Beverly Hills, California, United States
Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Tuesday, July 24, 2018

Trump’s New Target in the Politics of Fear: Citizenship

New York Times (Op-Ed)
By John Ganz
July 23, 2018

Surveying the wreckage of McCarthyism in 1957, the political theorist Hannah Arendt wrote about efforts to denaturalize American citizens suspected of Communist ties.

“It seems absurd,” she concluded, “but the fact is that, under the political circumstances of this century, a constitutional amendment may be needed to assure American citizens that they cannot be deprived of their citizenship, no matter what they do.”

It no longer seems so absurd. Citizenship is squarely in the Trump administration’s cross hairs. It has organized a Citizenship and Immigration Services task force to denaturalize American citizens, the first effort of mass expatriation contemplated since the McCarthy era. In a recent op-ed article for The Washington Post, Michael Anton, a former national security official in the administration, even proposed getting rid of birthright citizenship — by dictatorial fiat, no less: “It falls, then, to Trump. An executive order could specify to federal agencies that the children of noncitizens are not citizens.”

Yes, you’re reading that right: A high-ranking former member of the state security apparatus seriously believes that it is good policy to revoke citizenship by executive order.

Nor is this is just the oddball notion of some eccentric former staff member. As far back as August 2015, Mr. Trump himself has trotted out similar ideas, telling CNN, “The 14th Amendment is very questionable as to whether or not somebody can come over and immediately that baby is a citizen.” He also suggested that “you can do something fast” to end birthright citizenship. It may be time to revisit Arendt’s proposal.

For Arendt, the prospect of mass statelessness was particularly alarming. Since states are the only institutions able to guarantee rights, she wrote, “A stateless person is not just expelled from one country, native or adopted, but from all countries — none being obliged to receive and naturalize him — which means he is actually expelled from humanity. Deprivation of citizenship consequently could be counted among the crimes against humanity, and some of the worst recognized crimes in this category have in fact, and not incidentally, been preceded by mass expatriations.”

Arendt, a refugee from Nazi Germany who had been for a time stateless herself, had observed how, during the Holocaust, Jews had first been rendered stateless and how this had prevented their escape and facilitated their mass killing. This may seem like a remote possibility today, but it’s important to remember the stakes and meaning of statelessness.

It should be noted that it’s currently extremely difficult to denaturalize an American citizen, and it almost never happens. Even during McCarthyism, when there was the political will and legal machinery to expatriate people, the process was slowed down considerably by procedure and the courts. And in 1958, the Supreme Court ruled in Trop v. Dulles that denaturalization as a penalty for crimes was a violation of the Eighth Amendment’s prohibition of cruel and unusual punishments, with Earl Warren sharing some of Arendt’s sentiments about its horrors: “It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in development.”

While it appears to be technically possible for someone to lose his citizenship by committing treason, subsequent court rulings have made it impossible for a citizen to be stripped of that status without voluntarily renouncing it: You must simultaneously commit treason and state that you no longer want to be a United States citizen.

However, it is still possible for someone to lose his citizenship if it can be shown he acquired it fraudulently. A prominent case of this is John Demjanjuk, the Ukrainian-American autoworker who was accused of being the notorious guard Ivan the Terrible, responsible for gassing hundreds of thousands at Treblinka and lying on his citizenship application about his Nazi past. Mr. Demjanjuk had his citizenship revoked, restored on appeal and then revoked again.

Today, the Trump administration is looking to deport people for offenses they committed before they were citizens but did not disclose on their forms. For instance, The Miami Herald reported that the Citizenship and Immigration Services is attempting to denaturalize a Florida woman, Norma Borgogno, who immigrated from Peru, on the grounds that she did not disclose a criminal past on her citizenship application. Ms. Borgogno, a 63-year-old secretary, got involved in a fraud scheme her boss had perpetrated, cooperated with the F.B.I., pleaded guilty and served a year of house arrest and four years of probation. Not exactly Ivan the Terrible.

The number of potential denaturalization cases that are being considered is reportedly in the thousands, so the Trump administration can’t hope to permanently alter the demographics of the country with this unwieldy device.

Maybe it doesn’t have to. It’s possible that the true intent — and the probable consequence — of the Trump policy is that naturalized citizens will not actively participate in political activity for fear that some old mistake on their forms could put their status in jeopardy.

This makes denaturalization policy a tool of political repression: Immigrants might not exercise their rights for fear that they will lose them all, or at least be dragged in front of a court and required to pay expensive lawyers’ fees. Since it is virtually impossible for a natural-born citizen to lose his citizenship, even the small possibility that naturalized citizens can lose theirs makes them, in effect, second-class citizens, unable to freely participate in public life without looming state repression.

When Arendt warned that “totalitarian solutions may well survive the fall of totalitarian regimes” and return disguised in otherwise free countries, things like this and Mr. Anton’s perverse proposals may be the sort of things she had in mind.

The way to forever neutralize this technique of fear is to make citizenship permanent and irrevocable. While a statute might suffice, a constitutional amendment as Arendt proposed would make it so citizenship could never again be a political target. Even the remotest possibility that one group of citizens who have gained power might have the ability to strip another group of citizens of their rights should make one shudder. The future of American democracy demands we guarantee now that citizenship cannot be stripped.

For more information, go to: www.beverlyhillsimmigrationlaw.com

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