The Myth of Equality Before the American Law
By Gajanan Khergamker
The United States of America, in its constitutional narrative, prides itself as a nation of immutable guarantees. The citizen, whether born into the light or welcomed through the solemnity of naturalisation, is supposedly wrapped in the same legal armour. Yet, beneath this veneer of equality, a cold, surgical blade is being sharpened in the corridors of power: the denaturalisation scythe. For millions of naturalised Americans, the certificate of citizenship—that sacred document they once held aloft with tearful pride—is tragically transforming into a document of conditional belonging, perpetually subject to administrative whim.
This is not a mere legal technicality; it is an assault on the naturalised soul, a bureaucratic mechanism that creates a frightening, two-tiered America: the secure native-born, and the haunted naturalised.
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The legal framework is, by its letter, stringent. Title 8 U.S.C. § 1451(a) demands the Government prove "illegal procurement" or "wilful misrepresentation of a material fact" by the "clear, unequivocal, and convincing" standard. This standard is meant to be a constitutional fortress, a recognition that citizenship is a right of such profound consequence that its revocation cannot be treated with casual legal indifference.
But what happens when the fortress gates are bypassed by a procedural flanking manoeuvre? This is the very menace unfolding today.
The Department of Justice’s increasing reliance on civil denaturalisation proceedings is a strategic choice that bypasses the due process protections inherent in the criminal justice system. A naturalised citizen facing civil revocation is immediately stripped of critical shields:
In criminal court, an indigent defendant has the right to a state-appointed attorney. In a civil denaturalisation suit—a matter of existential consequence—this right is often non-existent. The individual, frequently a non-affluent immigrant, is left to face the full, inexhaustible resources of the federal government, a legal duel with a foregone conclusion. The process itself becomes the punishment, and the lack of parity renders the "clear, unequivocal, and convincing" standard a hollow incantation.
Perhaps the most chilling aspect is the absence of a statute of limitations in civil proceedings. Imagine a citizen, having lived for thirty years, raised a family, contributed to the nation, being suddenly confronted with an alleged omission from a two-decade-old form. The law does not permit this vulnerability for the native-born; why, then, should the naturalised live in a state of eternal legal suspense? The concept of res judicata (a matter already judged)—the very principle that lends finality and stability to the law—seems to perish at the feet of the naturalisation certificate. The act of naturalisation, a solemn judicial decree, is treated not as a final judgment but as a perpetually reviewable administrative grant.
While the Supreme Court in Maslenjak v. United States (2017) did erect a critical barrier, demanding a causal link between the alleged fraud and the grant of citizenship, the institutional spirit is one of aggressive navigation around it. Maslenjak established that minor falsehoods—"small omissions and minor lies"—cannot suffice for revocation. The Government must show that the lie was "material," meaning it influenced the decision. The Court held that the government must prove that the naturalised citizen's misrepresentation was "relevant to the applicant's eligibility for citizenship." This was an attempt to curb the Executive's overreach, but the response has been a renewed focus on procedural mechanisms designed to circumvent the spirit of this protection.
The state, through mechanisms like 'Operation Janus' and other targeted enforcement efforts, continues to hunt for historical discrepancies—sometimes decades after the fact—seeking to inflate even minor non-disclosures into material fraud.
'Operation Janus,' a Department of Homeland Security initiative, identified hundreds of thousands of older fingerprint records that were not digitised, allowing individuals who had previously been ordered deported or had criminal records to potentially evade background checks during their naturalisation process. The very name, invoking the two-faced Roman god of beginnings and endings, is a rhetorical masterstroke of the enforcement state, suggesting that the naturalised citizen is always looking backward, their past a perpetual liability. The denaturalisation of Baljinder Singh (aka Davinder Singh) in 2018, the first successful result of Operation Janus, illustrates this aggressive posture. Singh's case involved a complex identity fraud to circumvent a prior deportation order, a clear instance of illegal procurement.
However, the current fear is the expansive push to apply this stringent penalty to what are essentially errors, misjudgements, or non-material failures of disclosure that would have, in all likelihood, not disqualified the applicant. Cases like the one initially misidentified as United States v. Kwok Cheung Ka—which is more accurately represented by the criminal prosecution of Kwok Cheung Chow (aka "Raymond Chow") for racketeering and murder, a case where denaturalisation would be a clear, non-controversial consequence of serious criminality and fraud—are used to justify a dragnet that ensnares the less culpable. The danger lies in conflating the egregious fraud of a war criminal or a convicted felon with the technical error of an immigrant who may have forgotten to list a minor traffic violation from twenty years prior.
The fundamental principle at stake is what constitutional scholars term "constitutional monism"—the idea that all citizens are, constitutionally, one and the same. The very act of denaturalisation, by treating a group of Americans as perpetually on probation, fundamentally fractures this ideal. The Fourteenth Amendment to the U.S. Constitution states plainly that all persons "born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This language admits no distinction.
The Supreme Court, in its 1967 landmark ruling Afroyim v. Rusk, affirmed this monism by holding that a citizen has a constitutional right to remain a citizen unless he or she voluntarily relinquishes that right. Justice Hugo Black, writing for the majority, declared:
"In our country, the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship."
While Afroyim dealt with expatriation (loss of citizenship by an act committed after naturalisation), its spirit—that the government cannot unilaterally strip citizenship—is directly challenged by the current denaturalisation surge. The Executive Branch's expansive interpretation of "fraud" in the naturalisation process transforms the Afroyim promise into a hollow echo. It suggests that the sovereignty of the naturalised citizen is perpetually conditional, a legal status that can be retroactively invalidated by a shifting administrative disposition.
When the government can revisit the most momentous legal decision in a person's life—their accession to citizenship—decades later, it injects an instability that is corrosive to the social contract. It sends a message to the naturalised community that their patriotism is conditional, their rights are revocable, and their belonging is negotiable.
The judicial community, therefore, must do more than merely enforce the "clear, unequivocal, and convincing" standard; it must interpret the statute with the highest degree of scepticism toward the Executive’s expansive denaturalisation policies. The courts must stand as the resolute guardians of the Fourteenth Amendment’s promise, ensuring that the hard-won citizenship of an American remains, unequivocally and finally, a permanent inheritance, not a temporary, government-issued visa. To preserve the soul of American democracy, the terrifying shadow of the Citizenship Scythe must be banished from the lives of the naturalised.
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