Denaturalization Under the Trump Administration: Legal Standards, Constitutional Constraints, and DOJ Enforcement Priorities

Posted on July 2, 2025 by Mike Baker

The Trump administration has dramatically elevated denaturalization as a federal enforcement priority through a June 11, 2025 memorandum directing the Department of Justice Civil Division to “prioritize and maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence”. Despite this aggressive policy shift, constitutional law expert Steve Vladeck emphasizes that there is “simply, no easy, fast path to revoking any American’s citizenship without their consent—and there hasn’t been for decades”. This comprehensive analysis examines the legal framework, constitutional limitations, and practical realities surrounding denaturalization enforcement, incorporating detailed procedural and substantive analysis from current legal practice.

Historical Context and Statistical Reality

The Unprecedented Scale of Current Enforcement

Historically, denaturalization was pursued by the U.S. government in extraordinarily small numbers, averaging only eleven cases per year between 1990 and 2017[1]. However, under the first Trump administration, there has been a dramatic increase in the number of denaturalization cases, with denaturalization case referrals to the DOJ increasing by 600 percent. [1].

Operation Janus and Systemic Identification Efforts

In 2010, Operation Janus was launched to continue and expand the Department of Homeland Security’s efforts to identify individuals with a final deportation order who naturalized or obtained legal permanent residence status under a different identity. A 2016 DHS Office of Inspector General report determined that there were 1,029 such cases and identified the lack of digital fingerprint records as the main cause of the problem[1].

DHS subsequently identified another 953 cases of naturalized citizens with prior deportation orders under other identities. The OIG report also noted that fingerprint records were lacking in approximately 315,000 cases of non-citizens with final deportation orders or criminal convictions and that in about 148,000 cases Immigration and Customs Enforcement had not yet reviewed and tried to retrieve and digitize old fingerprint cards[1].

Institutional Expansion Under Trump Administration

Under the Trump administration, the government has significantly increased its capacity to investigate U.S. citizens and pursue denaturalization cases. In 2018, USCIS announced that it intended to refer approximately 1,600 cases to the Department of Justice for prosecution and the creation of a new office dedicated to reviewing and referring denaturalization cases to DOJ. DHS also diverted funds from USCIS’s budget to ICE in order to conduct investigations of naturalized citizens[1].

In February 2020, DOJ announced the creation of the Denaturalization Section within DOJ’s Office of Immigration Litigation which was “dedicated to investigating and litigating revocation of naturalization”. While this section was disbanded under the Biden administration, it has been effectively reconstituted under current enforcement priorities.

The June 11, 2025 DOJ Civil Division Enforcement Memorandum

Brett Shumate’s Policy Directive

On June 11, 2025, Assistant Attorney General Brett A. Shumate issued a comprehensive enforcement memorandum that fundamentally reshapes DOJ priorities regarding denaturalization. The official DOJ memo makes denaturalization one of the Civil Division’s “top five enforcement priorities” alongside combating discriminatory practices, ending antisemitism, protecting women and children, and ending sanctuary jurisdictions.

Full Text of Denaturalization Section

“The Department of Justice may institute civil proceedings to revoke a person’s United States citizenship if an individual either ‘illegally procured’ naturalization or procured naturalization by ‘concealment of a material fact or by willful misrepresentation.’ 8 U.S.C. § 1451(a). The benefits of civil denaturalization include the government’s ability to revoke the citizenship of individuals who engaged in the commission of war crimes, extrajudicial killings, or other serious human rights abuses; to remove naturalized criminals, gang members, or, indeed, any individuals convicted of crimes who pose an ongoing threat to the United States; and to prevent convicted terrorists from returning to U.S. soil or traveling internationally on a U.S. passport.”

The memo continues:

“The Civil Division shall prioritize and maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence.”

Ten Priority Categories for Enforcement

The Shumate memo establishes specific enforcement categories that significantly expand traditional denaturalization practice:

  1. National Security Threats: Individuals with nexus to terrorism, espionage, or unlawful export of sensitive technologies
  2. Human Rights Violations: Those who engaged in torture, war crimes, or other human rights abuses
  3. Criminal Organizations: Individuals who furthered criminal gangs, transnational organizations, or drug cartels
  4. Undisclosed Felonies: Those who committed felonies not disclosed during naturalization
  5. Violent and Sexual Crimes: Individuals convicted of human trafficking, sex offenses, or violent crimes
  6. Government Fraud: Those who engaged in PPP loan fraud, Medicaid/Medicare fraud, or other federal program fraud
  7. Private Sector Fraud: Individuals who committed fraud against private entities, funds, or corporations
  8. Naturalization Fraud: Those who acquired citizenship through government corruption or material misrepresentations
  9. Criminal Referrals: Cases referred by U.S. Attorney’s Offices in connection with pending charges
  10. Discretionary Cases: “Any other cases referred to the Civil Division that the Division determines to be sufficiently important to pursue”

Operational Implications

Critically, the memo states: “these categories do not limit the Civil Division from pursuing any particular case, nor are they listed in a particular order of importance. Further, the Civil Division retains the discretion to pursue cases outside of these categories as it determines appropriate”.

Why Denaturalization Is Now Nearly Impossible After the Supreme Court’s Ruling

Despite the government’s recent push to identify and prosecute more denaturalization cases, the reality is that actually stripping someone of their citizenship is now extraordinarily difficult—if not nearly impossible—except in the most serious cases. In Maslenjak v. United States (2017), the Supreme Court unanimously ruled that a naturalized citizen cannot lose their citizenship for a lie or omission unless the government proves that the falsehood was “material”—meaning it actually made a difference in the decision to grant citizenship. Minor mistakes, omissions, or irrelevant lies are not enough. The government must show that it would have denied citizenship had it known the truth.

This standard is so demanding that, in practice, denaturalization is now almost impossible except in cases of serious fraud or criminal conduct that went directly to the heart of eligibility. Even as the DOJ under the Trump administration has announced plans to “prioritize and maximally pursue” denaturalization cases—including creating a special office and reviewing thousands of files—these efforts are overwhelmingly symbolic. The combination of Supreme Court precedent, constitutional protections, and the government’s own evidentiary burden means the vast majority of naturalized Americans have nothing to fear from denaturalization proceedings.

Could the High Bar Let Serious Cases Slip Through?

The Supreme Court’s Maslenjak decision and the “materiality” standard provide critical protections for naturalized citizens, making denaturalization nearly impossible except in the most clear-cut cases of fraud or criminal conduct. The Maslenjak standard is intentionally high to prevent misuse and to protect the security and permanence of citizenship for millions of Americans.

In rare, truly egregious cases—such as war criminals or those who concealed violent crimes—the government can still meet this burden, as long as it can prove the fraud or concealment was material to the citizenship decision.

However, there is a risk that some serious cases could go unpunished if the evidence is ambiguous or if the connection between the misrepresentation and the grant of citizenship cannot be established. This is a deliberate tradeoff in American law: it is far better for a few questionable cases to escape denaturalization than to risk stripping citizenship from people based on technicalities, minor errors, or government overreach. The Supreme Court’s decision reflects a strong commitment to the principle that citizenship, once granted, should be secure and revocable only in the most clear-cut and serious cases.

Legal Framework for Denaturalization

Primary Statutory Grounds

A naturalized U.S. citizen can have that status taken away if the federal government proves by clear, convincing, and unequivocal evidence in a civil federal court proceeding, or satisfies the beyond a reasonable doubt standard in a comparable criminal case, that the citizen was not qualified for naturalization at the time it was mistakenly granted[1]. The denaturalization process is governed by these provisions of law:

Illegal Procurement or Concealment/Willful Misrepresentation (INA § 340(a))

Illegal Procurement: Naturalization is “illegally procured” when the applicant was in fact ineligible for naturalization by failing to satisfy certain statutory requirements[1]. Because it is a distinct ground for denaturalization, illegal procurement does not require a concealment or misrepresentation of any kind. Rather, the issue is whether the applicant satisfied all of the specific naturalization requirements found in INA §316(a):

  1. Lawful Permanent Resident Status: The applicant was a lawful permanent resident for the required period (five years or three years if applying as spouse of U.S. citizen)
  2. Good Moral Character: They were a person of good moral character during the entire statutory period
  3. Physical Presence: They were physically present in the U.S. for at least half of the required period
  4. Continuous Residence: They resided continuously in the U.S. as a lawful permanent resident for the required period
  5. Attachment to Constitutional Principles: During the statutory period was “attached to the principles of the Constitution of the United States”[1]

Concealment and Willful Misrepresentation: Additionally, naturalization may be revoked if it was procured “by concealment of a material fact or by willful misrepresentation”. There are four requirements to show that naturalization was procured by concealment or misrepresentation: the applicant must have made a (1) willful, (2) concealment or misrepresentation, (3) of a material fact, (4) to procure naturalization[1].

Criminal Denaturalization (18 U.S.C. § 1425)

The INA mandates that courts automatically revoke citizenship of naturalized citizens when they are convicted for certain types of naturalization fraud under 18 U.S.C. § 1425. These include knowing, unlawful procurement or attempts to procure naturalization, or documentary evidence of naturalization for any person. Like all criminal cases, the government bears the burden of proof beyond a reasonable doubt[1].

Wartime Military Service (INA § 329(c))

Naturalization through wartime military service under § 329(a) may be revoked if the citizen was subsequently discharged under other than honorable conditions within a specified five-year period[1].

Cold War Provision (§ 340(a) Proviso)

A remnant of the Cold War but still valid law, naturalization may be revoked for refusing under specified circumstances to testify before a congressional committee on alleged subversive activities[1].

Burden of Proof and Evidentiary Standards

Given the precious nature of U.S. citizenship, the government must prove its case by “clear, unequivocal and convincing evidence”. This burden is substantially identical with that required in criminal cases – proof beyond a reasonable doubt. Facts should be construed as far as is reasonably possible in favor of the citizen[1].

Steve Vladeck’s Constitutional Analysis

The Fundamental Constitutional Framework

Constitutional law scholar Steve Vladeck, writing in his “One First” newsletter on April 28, 2025, provides crucial context on the constitutional limitations governing denaturalization. Vladeck emphasizes that despite political rhetoric, the legal reality remains constrained by decades of Supreme Court precedent.

Key Constitutional Constraints Identified by Vladeck

Section 1481: Limited Grounds for Expatriation

Vladeck details that 8 U.S.C. § 1481 identifies only seven specific classes of activities that can subject citizens to loss of citizenship, most involving voluntary conduct demonstrating intent to surrender citizenship:

  1. Obtaining naturalization in a foreign state
  2. Taking an oath of allegiance to a foreign state
  3. Military service for foreign states under specific circumstances
  4. Accepting foreign government employment with nationality acquisition
  5. Formal renunciation before diplomatic officers
  6. Written renunciation during wartime (with Attorney General approval)
  7. Committing treason or seditious acts (if convicted and with specific intent)

The Vance v. Terrazas Standard

Vladeck explains that the Supreme Court’s decision in Vance v. Terrazas established that the Fifth Amendment’s Due Process Clause requires the government to prove that a citizen specifically intended to surrender their U.S. citizenship, not merely that they voluntarily committed an expatriating act.

As Vladeck notes: “Thus, under Vance, it is effectively impossible to revoke citizenship as a punitive sanction simply for being convicted of a crime (to say nothing of merely being charged with one)”.

Denaturalization vs. Expatriation

Vladeck distinguishes between the two processes:

Denaturalization applies only to naturalized citizens and requires proof that citizenship was “illegally procured or . . . procured by concealment of a material fact or by willful misrepresentation.”

Expatriation can apply to all citizens but requires meeting the demanding standards of Section 1481 and proving specific intent to relinquish citizenship.

Vladeck’s Assessment of Current Enforcement

Despite the administration’s expanded enforcement priorities, Vladeck concludes: “There is, simply, no easy, fast path to revoking any American’s citizenship without their consent—and there hasn’t been for decades”.

He emphasizes that meaningful judicial review requirements and constitutional protections create “significant statutory, constitutional, and practical obstacles” to mass denaturalization efforts.

The Supreme Court’s Maslenjak Decision: Materiality Requirements

Maslenjak v. United States: Relevant Facts

  • Divna Maslenjak, an ethnic Serb, fled Bosnia during the civil war and entered the U.S. as a refugee in 2000.
  • She obtained refugee status by claiming, under oath, that she feared persecution both because of her ethnicity and because her husband had evaded military service in the Bosnian Serb army.
  • In 2004, Maslenjak applied for U.S. naturalization and answered “no” to questions about ever lying to immigration officials or providing false or misleading information for immigration benefits.
  • She became a naturalized U.S. citizen in 2007.
  • In 2013, immigration officials discovered that Maslenjak’s husband had not evaded military service, but had actually served as an officer in the Bosnian Serb army, which was implicated in war crimes.
  • Maslenjak was prosecuted and convicted in 2014 for making false statements on her naturalization application, in violation of 18 U.S.C. § 1425(a) and § 1015(a).
  • The government argued that any false statement, material or not, could justify denaturalization. The trial court instructed the jury that Maslenjak could be convicted even if her false statements were not material to her citizenship approval.
  • Her citizenship was revoked following her conviction. The Sixth Circuit affirmed, but the Supreme Court unanimously reversed, holding that only a material false statement—one that actually influenced the decision to grant citizenship—could support denaturalization.

In Maslenjak v. United States, 582 U.S. ___ (2017), the Supreme Court addressed a fundamental question about denaturalization: whether the government can revoke citizenship based on immaterial false statements made during the naturalization process.

Justice Kagan’s Unanimous Opinion

Justice Elena Kagan, writing for a unanimous Court, established crucial limitations on denaturalization that remain binding precedent:

“We hold that the Government must establish that an illegal act by the defendant played some role in her acquisition of citizenship. When the illegal act is a false statement, that means demonstrating that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts warranting that result.”

The Materiality Standard

The Court rejected the government’s argument that any false statement, regardless of materiality, could support denaturalization. Justice Kagan explained:

“Under the Government’s reading of §1425(a), a lie told in the naturalization process—even out of embarrassment, fear, or a desire for privacy—would always provide a basis for rescinding citizenship. The Government could thus take away on one day what it was required to give the day before.”

Two-Part Test for Misrepresentation Cases

The Maslenjak decision established a framework for cases involving false statements:

Direct Disqualification: If the misrepresented facts are themselves legally disqualifying for citizenship, the lie must have played a role in naturalization.

Investigation-Based Theory: When relying on the theory that lies threw investigators off a trail leading to disqualifying facts, the government must prove:

  1. The misrepresented fact was sufficiently relevant to prompt reasonable officials to undertake further investigation
  2. Such investigation “would predictably have disclosed” some legal disqualification

Constitutional Protection Maintained

Critically, Justice Kagan emphasized: “We have never read a statute to strip citizenship from someone who met the legal criteria for acquiring it. We will not start now”.

Procedural Framework and Due Process

Denaturalization Process

The denaturalization process is initiated by filing a complaint in U.S. district court alleging, “upon affidavit showing good cause,” that the defendant’s naturalization was either procured illegally or by concealment of a material fact or by willful misrepresentation. Jurisdiction is in the district court of the defendant’s current residence. Generally, the process begins with the USCIS making a recommendation to revoke citizenship and then usually the U.S. Attorney’s office would prosecute the case[1].

DOJ Guidelines for Case Selection

A Department of Justice circular letter lists factors to consider in determining whether to institute denaturalization proceedings, by looking at whether proceedings would result in the “betterment of the citizenship of the country”. Although the letter is over 100 years old, it indicates that proceedings should not be instituted merely to correct errors and irregularities in an individual’s naturalization. Where the naturalized citizen procured citizenship through willful and deliberate fraud, the letter states that denaturalization proceedings should not be considered if many years have passed since the judgment of naturalization, the individual has since been an exemplary citizen, and the individual possesses the necessary qualifications for citizenship[1].

Due Process Concerns in Civil vs. Criminal Proceedings

Civil Proceedings: Whereas naturalized citizens are provided notice and an opportunity to be heard when complaints are brought against them for illegal procurement or concealment and misrepresentation, there are significant due process limitations in civil denaturalization proceedings:

  • No Right to Appointed Counsel: Unlike criminal cases, individuals facing denaturalization are not entitled to a government-appointed attorney if they cannot afford one
  • Service of Process Issues: Since naturalized citizens aren’t required to keep addresses updated with the government, cases can proceed if service is made to the last known address, even if the person never receives notice

Criminal Proceedings: There is no required notice or right to be heard for revocation of citizenship after criminal convictions for fraudulent naturalization. Instead, courts have interpreted the statute as requiring automatic denaturalization after the conviction, regardless of whether lengthy periods of time transpire between conviction and revocation[1].

Potential Defenses to Denaturalization Proceedings

Complete Defense: Eligibility for Citizenship

In Maslenjak v. U.S., the Supreme Court held that qualification for citizenship is a complete defense to prosecution for knowingly procuring naturalization contrary to law in violation of 18 U.S.C. § 1425(a). The Court explained that in both civil and criminal denaturalization proceedings, if a defendant proves that he was qualified for citizenship, he could not be denaturalized[1].

In U.S. v. Allouche, the Fifth Circuit held that a defendant’s qualification for citizenship—based upon grounds separate and apart from those which the government had charged defendant failed to meet—would be a complete defense to both criminal and civil denaturalization proceedings[1].

Materiality Defenses

Concealment or misrepresentation may only be the basis for revocation proceedings if they related to a material fact. In Kungys, the Supreme Court held that the test for materiality is whether the concealments or misrepresentations in the naturalization process have a “natural tendency to influence” the decision to grant naturalization[1].

Post-Maslenjak, the government must prove two ways the materiality requirement can be satisfied:

  1. Direct Disqualification: If the facts misrepresented are themselves disqualifying, there is an obvious causal link between the defendant’s lie and her procurement of citizenship
  2. Investigation-Based Theory: The government must show that the misrepresented fact was sufficiently relevant to prompt reasonable officials to undertake further investigation, and such investigation would predictably have disclosed some legal disqualification[1]

Truthfulness and Ambiguity Defenses

Defendants have successfully argued that questions asked on naturalization forms are ambiguous, and therefore their concealment or misrepresentation of certain facts was not willful for the purposes of 8 U.S.C. 1451(a). In Nowak and Maisenberg, the Supreme Court considered whether questions about anarchy or overthrow of government were ambiguous as applied to defendants who failed to disclose Communist Party membership[1].

Procedural Defenses

The Supreme Court in Schneiderman v. U.S. emphasized that the burden of proof for civil denaturalization proceedings is especially heavy “when the attack is made long after the time when the certificate of citizenship was granted and the citizen has meanwhile met his obligations and has committed no act of lawlessness”[1].

Statute of Limitations: The Third Circuit and Fifth Circuit have held that the federal catch-all statute of limitations is not a defense to a denaturalization proceeding because denaturalization serves as a remedy for fraudulently obtained citizenship as opposed to a penalty or forfeiture.

Laches: While generally ineffective, some circuits allow laches defenses where defendant can show prejudice by the government’s delay in bringing the suit[1].

Consequences of Denaturalization

Relation-Back Doctrine

Courts adjudicating denaturalization proceedings apply the “relation-back” doctrine under INA § 340(a), which provides that naturalization and the certificate of citizenship are revoked “as of the original date” of admission to citizenship. In other words, a person reverts to their pre-naturalization immigrant status for the time spanning conferment of citizenship and denaturalization[1].

However, the U.S. Supreme Court clarified that the relation-back does not apply to general deportation provisions, so deportable crimes committed after a fraudulently procured naturalization cannot be grounds for deportation after a citizen is denaturalized[1].

Impact on Derivative Citizens

Under INA § 340(d), derivatives may lose their citizenship if they “claimed” it through a parent or spouse, depending on why the parent was denaturalized, how the derivatives claimed the citizenship, and where they were when it happened:

Concealment or Misrepresentation: If the parents’ naturalization is revoked because of concealment or misrepresentation, any children who acquired or derived citizenship from that parent will lose citizenship, regardless of whether they are residing in the United States or abroad[1].

Illegal Procurement: Derivatives will not lose citizenship if the parent or spouse’s citizenship was revoked due to illegal procurement of naturalization[1].

Military/Subversive Activity: Derivatives may lose citizenship if the spouse or parent is denaturalized under presumptions for military discharge or subversive activities, but only if they were residing outside the United States at the time of the principal’s denaturalization[1].

Administrative vs. Judicial Denaturalization

Current Limitations on Administrative Action

A Ninth Circuit decision held that the INS only had the power to cancel certificates of naturalization in limited circumstances without affecting the citizenship status of those affected. The Court affirmed a preliminary injunction on administrative denaturalization, which became permanent in 2001. At this point in time, revocation of naturalization can only occur in federal courts. USCIS can only cancel the certification of naturalization, but cannot revoke the underlying status[1].

In 2017, the D.C. Circuit in Xia v. Tillerson clarified that administrative cancellation of a certificate of naturalization does not affect the underlying citizenship. The court noted that only the document itself, the certificate, is affected by such administrative cancellation[1].

Why Denaturalization Remains Extremely Difficult

Legal Standard Barriers

The “clear, convincing, and unequivocal evidence” standard requires overwhelming proof, with courts interpreting ambiguities in favor of the citizen. This burden is substantially identical to the criminal beyond reasonable doubt standard despite being civil proceedings.

Materiality Requirements Post-Maslenjak

Following the Supreme Court’s decision, the government must prove not just concealment, but that it was material to the naturalization decision—often difficult years after the fact.

Constitutional Protections

Meaningful judicial review requirements and due process protections create significant obstacles to mass denaturalization efforts.

Resource Constraints

Each case requires substantial investigative and prosecutorial resources. Despite the significant resources this administration is expending on these cases, in absolute terms the number of people who have had their citizenship stripped remains small. However, there are fears that the creation of the DOJ’s expanded enforcement priorities may result in many more people being denaturalized, and these efforts will have a chilling effect on the number of legal permanent residents applying for U.S. citizenship[1].

Conclusion

While the Trump administration has made denaturalization a high enforcement priority through the Shumate memo, the legal and constitutional framework severely constrains what can actually be accomplished. Steve Vladeck’s analysis proves prescient: despite policy preferences, constitutional requirements of individualized judicial review, specific intent standards, and the “clear, convincing, and unequivocal evidence” burden of proof mean that denaturalization will continue to affect only a small number of cases involving serious misconduct.

The DOJ’s expanded procedural framework and priority categories represent a systematic approach to identifying potential cases, but they cannot overcome the fundamental constitutional and legal constraints established by the Supreme Court in cases like Maslenjak v. United States. For the vast majority of naturalized Americans, citizenship remains secure regardless of political rhetoric or enforcement priorities.

The statistical reality—moving from an average of eleven cases annually to dozens even with increased enforcement—demonstrates that denaturalization remains more significant as political messaging than practical immigration enforcement tool. The comprehensive legal framework, procedural safeguards, and constitutional protections ensure that denaturalization continues to be an extraordinary remedy reserved for the most egregious cases of fraud or misconduct.

Sources

[1] Immigrant Legal Resource Center, “Denaturalization and Revocation of Naturalization Practice Advisory,” February 2020

Sources

USCIS Policy Manual – Denaturalization and Revocation of Naturalization

Posted in Denaturalization | Leave a comment

Administrative Closure Explained: When Detention Means No Pause

Posted on June 7, 2025 by Mike Baker

Administrative Closure in Immigration Court: How Detention Blocks the Pause Button

By Michael D. Baker | Updated June 7, 2025

Key Takeaway: The Board of Immigration Appeals’ (BIA) 2025 decision in Matter of B-N-K-, 29 I&N Dec. 96 (BIA 2025) confirms that detained immigrants face near-zero chance of pausing deportation cases through administrative closure—even with pending Temporary Protected Status (TPS) applications. This ruling reshapes strategies for families and attorneys.

  • Official Decision: Matter of B-N-K-, 29 I&N Dec. 96 (BIA 2025)
  • Primary Rule: Judges must prioritize resolving cases on their merits over delays.
  • Detention Impact: Custody status is a “critical factor” against closure (8 CFR § 1003.1(l)(3)(i)(H)).
  • TPS Reality Check: TPS applications are collateral benefits and do not justify pauses in removal proceedings.

Legal Backbone: Precedents & Regulations

Key Precedents

2024 Regulatory Factors

  1. Reason for closure
  2. Basis for opposition
  3. Detention status (critical weight)
  4. Likelihood of success on collateral relief (e.g., TPS)
  5. Anticipated closure duration

DOJ/EOIR Memo (Cancellation of DM 22-03, April 18, 2025): View here

Federal Register publication of the 2024 Final Rule: View here

How the Law Applied to B-N-K-’s Facts

  • Uncertain Timelines: TPS processing delays risked indefinite pause.
  • Merits Readiness: Her asylum claim was fully briefed and ready for decision.
  • Detention Burden: Prolonged custody would strain DHS resources.
  • TPS Limitations: TPS is a collateral benefit—it temporarily stops deportation but doesn’t resolve removability.

Temporary Protected Status (TPS) in Immigration Court

  • Can Be Granted During Proceedings: TPS applications are processed by USCIS independently, even if removal proceedings are ongoing.
  • No Impact on Removability: TPS approval doesn’t erase the underlying deportation charges. Judges can still issue removal orders.
  • Temporary Protection: If granted, TPS halts deportation execution during the designated period but doesn’t pause court proceedings.

Detained vs. Non-Detained Outcomes

ScenarioClosure Likelihood
Detained with pending TPS<10% (per Avetisyan)
Non-detained with USCIS-approved TPS~40% if DHS agrees

Practice Takeaways for Lawyers

  • Detained Clients: Abandon closure requests. Focus on bond or expedited hearings.
  • Non-Detained: Use closure strategically for clients awaiting guaranteed relief (e.g., approved I-130 with current priority date).
  • TPS Strategy: File TPS early, but pair it with other relief (e.g., asylum). Never rely on TPS alone for closure.

Official Resources

Posted in Administrative closure, BIA, Board of Immigration Appeals, Immigration Court | Leave a comment

Trump’s 2025 travel ban is back—overbroad, underinclusive, and unnecessary, but likely to survive in court as a policy spectacle, just like before.

Posted on June 6, 2025 by Mike Baker

The Trump 2025 Travel Ban: Legally Sound, Policy-Wise Unnecessary and Ineffective

The Trump administration’s reinstated travel ban, targeting 12 countries for full entry restrictions and seven others for partial limitations, is almost certain to withstand legal challenge under the Supreme Court’s Trump v. Hawaii (2018) precedent. However, a close look at the policy reveals it is overinclusive, underinclusive, and redundant with existing immigration enforcement tools—making it more political spectacle than meaningful security measure.

What Does the Ban Do?

The ban fully blocks entry from: Afghanistan, Myanmar (Burma), Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen.

Partial restrictions apply to: Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela. In these cases, some categories of travelers from these countries face limits, but not a total ban.

Legal Foundations: Why the Ban Survives Under *Trump v. Hawaii*

The Supreme Court’s 2018 decision in Trump v. Hawaii established a highly deferential standard for evaluating presidential travel restrictions under INA § 212(f). The 2025 ban replicates the structure and justifications that the Court deemed sufficient in that case:

1. Facially Legitimate National Security Rationale:
The 2025 ban, like its predecessor, cites “national security” as its primary justification. The Supreme Court in Trump v. Hawaii ruled that courts must accept such justifications unless they are “wholly unrelated to the objective of the proclamation”. The administration’s claims of deficient vetting, high overstay rates, and uncooperative governments meet this low threshold, even if critics dispute their empirical validity.

2. Interagency Review Process:
The 2025 ban follows a multi-agency review ordered by President Trump in January 2025, mirroring the process the Court praised in Trump v. Hawaii. The Court emphasized that such reviews demonstrate “a sufficient basis” for the executive’s national security findings, even if the conclusions are debatable.

3. Avoidance of Explicit Religious Bias:
By including non-Muslim-majority nations (e.g., Venezuela, Cuba, Laos), the 2025 ban weakens claims of religious animus. The Trump v. Hawaii majority dismissed similar allegations because the third iteration of the original ban applied to only six Muslim-majority countries (of eight total), which the Court deemed “facially neutral”.

4. Rational Basis Review:
The Supreme Court applied rational basis scrutiny in Trump v. Hawaii, requiring only that the policy be “rationally related to a legitimate government interest.” This standard does not demand perfection—overinclusivity (restricting low-risk individuals) or underinclusivity (excluding high-risk countries) are not fatal flaws under this test. Courts may not “second-guess the adequacy of the President’s justifications” if they are facially plausible.

5. Precedent of Judicial Deference:
The Court in Trump v. Hawaii cited Kleindienst v. Mandel (1972), which held that courts will not “look behind” executive decisions on immigration if they offer a “facially legitimate and bona fide” rationale. The 2025 ban’s reliance on country-specific security metrics satisfies this standard, even if critics argue the metrics are flawed”.

Key Takeaway:
The 2025 ban is structured to exploit the deference granted by Trump v. Hawaii. As long as the administration avoids overt religious language and cites national security, courts are unlikely to block it—regardless of policy objections.

Legal Survival Is Likely, But Policy Justification Is Weak

The Supreme Court’s Trump v. Hawaii decision set a low bar for presidential authority under INA § 212(f): as long as the administration offers a facially legitimate and bona fide reason, such as national security, courts will defer to the executive branch. The 2025 ban, citing information-sharing deficiencies, high visa overstay rates, and weak cooperation on criminal and terrorist matters, meets this standard—even if the evidence is thin or the rationale is inconsistent.

Existing Law Already Provides Ample Tools

Overstays and Security Risks:
The United States already has robust statutory and regulatory authority to deny visas, refuse entry, and remove individuals from any country based on security concerns or visa overstays. The INA allows for:

  • Visa denials for security, criminal, or fraud concerns.
  • Targeted bans on individuals or classes of individuals from any country, based on specific intelligence or risk profiles.
  • Suspension or limitation of entry from any country that fails to cooperate with U.S. deportation or information-sharing requests.

The Ban Is Overinclusive and Underinclusive

Overinclusive:
The ban sweeps in entire populations from countries where most nationals pose no threat, punishing refugees, students, and families with no connection to terrorism or crime. This collective approach is not rationally tailored to actual security risks.

  • Most affected are students, business travelers, and families from countries like Afghanistan, Iran, and Somalia.
  • According to the Cato Institute, nationals from the 12 fully banned countries have killed one person in a terrorist attack on U.S. soil since 1975. The annual chance of being murdered by a terrorist from these nations is 1 in 13.9 billion.
  • Existing laws already empower consular officers to deny visas to high-risk individuals. Blanket bans are unnecessary and counterproductive.

Underinclusive:
The ban omits countries with documented security issues or high overstay rates—most notably Egypt, Saudi Arabia, and others—despite similar or greater risk profiles. This selective application undermines the claim that the policy is genuinely about national security.

  • Egypt and Kuwait are excluded despite the Colorado attacker being an Egyptian national with an expired visa. Kuwait has a 23.9% overstay rate for student visas but faces no restrictions.
  • Saudi Arabia and Pakistan are omitted despite historical links to terrorism and high overstay rates.
  • Syria, a state sponsor of terrorism, is excluded, while Djibouti (23.9% overstay rate) is not listed.

Exceptions, Waivers, and Corruption Risks

The ban includes a labyrinth of exemptions that undermine its security rationale while creating opportunities for selective enforcement:

  • Lawful Permanent Residents (Green Card Holders): Exempt despite the administration’s claim that nationals from these countries pose inherent risks. If threats were genuine, this exemption would be incoherent (White House Proclamation).
  • Dual Nationals: Can bypass the ban by traveling on passports from unrestricted countries, favoring wealthier or politically connected individuals (Fragomen).
  • Athletes and Major Event Participants: Exempt for events like the World Cup or Olympics, prioritizing spectacle over security (Employment Law Worldview).
  • Case-by-Case Waivers: Granted by the Attorney General or Secretary of State for “national interest,” with no transparent criteria. Past Trump-era waivers were granted to fewer than 2% of applicants, often to allies of administration officials (Boundless).
  • Special Immigrant Visas (SIVs): Afghan allies with SIVs are exempt, but their family members are not, fracturing families despite rigorous vetting (IRC).

Corruption Risks: The waiver system’s opacity allows favoritism. For example:

  • Allies of Trump’s 2024 donors could secure waivers for business associates from Venezuela or Turkmenistan.
  • The athlete exemption benefits private entities like FIFA, intertwining corporate interests with national security (Holland & Knight).

Cato Institute’s Analysis

Cato scholars argue the ban is arbitrary and disconnected from evidence:

  • The administration cites “terrorism-related risks,” yet the banned countries collectively pose less threat than excluded nations like Egypt or Saudi Arabia.
  • Immigrants from the banned countries have incarceration rates 70% below native-born Americans and 40% below unauthorized immigrants (Cato Institute).
  • Existing visa denials, deportations, and enhanced screening already address overstays and security risks without blanket bans.

Conclusion

Legally, the ban will likely survive—Trump v. Hawaii gives the executive enormous leeway. But as policy, it is unnecessary, poorly targeted, and largely symbolic. The U.S. already has all the legal authority it needs to protect itself from genuine threats, and this kind of blanket ban only distracts from smarter, more effective enforcement.

References

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Who Must Register Under the 1940 Alien Registration Law? | 2025 Immigration Compliance Guide

Posted on May 31, 2025 by Mike Baker

Who Must Register Under the 1940 Alien Registration Law?

A Guide for Noncitizens, Families, and Legal Professionals (2025 Update)

The federal government has revived enforcement of the 1940 Alien Registration Act, requiring many noncitizens in the United States to register with immigration authorities. This post breaks down—clearly and simply—which categories of noncitizens must register, who is already considered registered, and who is exempt. If you are a lawyer, advocate, or noncitizen trying to make sense of these rules, this guide is for you.

Background: Why Is This Happening Now?

  • The Law: Section 262 of the Immigration and Nationality Act (INA) requires most noncitizens (aliens) age 14 and older who are in the U.S. for 30 days or more to register and be fingerprinted. Parents or guardians must register children under 14. Aliens over 18 must always carry proof of registration. Failure to comply can result in fines, jail, and even deportation.
  • Recent Change: As of April 11, 2025, the U.S. government is actively enforcing these rules for the first time in decades, with a new online registration process (Form G-325R).

Who Must Register?

You MUST Register if You Are:

  • A noncitizen age 14 or older in the U.S. for 30 days or more, and you do not already have proof of registration (see below for who is already registered).
  • A parent or guardian of a child under 14 who is in the U.S. for 30 days or more and does not already have proof of registration.
  • A child who turns 14 while in the U.S.—even if previously registered by a parent, you must re-register and be fingerprinted within 30 days of your 14th birthday.
  • A Canadian visitor who entered at a land port of entry and was not issued a Form I-94 and is staying in the U.S. for 30 days or more.
  • A person who entered the U.S. without inspection or admission (i.e., crossed the border illegally or overstayed a visa and never received a registration document).
  • A recipient of DACA, TPS, or other relief who was not issued an Employment Authorization Document (EAD) or other registration proof.
  • Anyone else not listed below as “already registered” or “exempt.”

Who Is Already Registered?

If you are in one of these categories, you do NOT need to register again (but you must always carry proof if you are 18 or older):

  • Lawful Permanent Residents (Green Card holders).
  • Anyone issued an immigrant or nonimmigrant visa before their last entry to the U.S.
  • Anyone issued an Employment Authorization Document (EAD)—even if expired.
  • Anyone issued a Form I-94 or I-94W (Arrival/Departure Record), even if expired.
  • Anyone who has applied for lawful permanent residence (Forms I-485, I-687, I-691, I-698, I-700) and provided fingerprints, even if the application was denied.
  • Anyone issued a Border Crossing Card.
  • Anyone paroled into the U.S. (even if parole has expired).
  • Individuals in removal proceedings (issued a Notice to Appear or similar charging document) – Already registered; no need to register again.

Who Is Exempt?

  • Diplomats and international organization representatives (A and G visa holders).
  • Certain American Indians born in Canada (under 8 U.S.C. § 1359).
  • Members of the Kickapoo Traditional Tribe of Texas.
  • Short-term visitors (in the U.S. for less than 30 days).
  • U.S. citizens and nationals (not subject to these rules).

Quick Reference Table: Who Must Register?

Category Must Register? Notes
Entered without inspection, no prior registration YES Must register within 30 days of arrival or immediately if already present
Canadian visitor, no I-94, >30 days in U.S. YES Applies to most land border entrants
Child under 14, not registered YES Parent/guardian must register child
Child turning 14 in U.S. YES Must re-register within 30 days of 14th birthday
DACA/TPS/relief recipient, no EAD/registration document YES Must register
Lawful Permanent Resident (Green Card holder) NO Already registered
Entered with visa/I-94/EAD/Border Crossing Card NO Already registered
In removal proceedings (Notice to Appear issued) NO Already registered by virtue of being placed in proceedings; no further action required
Paroled into U.S. (even if parole expired) NO Already registered
Diplomat/Int’l Org. Rep. (A/G visa) NO Exempt
Certain American Indians born in Canada NO Exempt
U.S. citizen or national NO Not subject
In U.S. <30 days NO Not subject

What Happens If You Don’t Register?

  • Criminal and civil penalties: Fines, jail time, and possible removal from the U.S.
  • Future immigration consequences: Failure to register can affect future visa, green card, or citizenship applications.
  • Proof of registration: Noncitizens age 18+ must always carry proof of registration—failure is a misdemeanor.

How to Register (If Required)

  1. Create a USCIS online account
  2. Complete Form G-325R (Biographic Information – Registration)
  3. Attend a fingerprint appointment if scheduled
  4. Download and print your proof of registration

Constitutional and Procedural Challenges to Registration Enforcement

The Department of Homeland Security’s implementation of the Alien Registration Act via Interim Final Rule (effective April 11, 2025) is facing significant legal challenges on grounds of procedural due process, notice deficiencies, and constitutional overreach. The principal arguments in current litigation include:

1. Violation of the Administrative Procedure Act (APA)

Plaintiffs in federal court argue that the rule is not a mere procedural update but a legislative action requiring notice-and-comment under the APA. The rule imposes new substantive obligations by creating a universal registration system for millions of noncitizens, designating Form G-325R as the sole compliance method, and expanding biometric requirements beyond what the statute authorizes. Courts have previously held that major policy shifts of this nature require meaningful public input.

2. Arbitrary and Capricious Rulemaking

The rule is also challenged as arbitrary and capricious because it fails to account for technological barriers faced by many registrants, lacks adequate language access, and contradicts existing exemptions for individuals in removal proceedings. Some courts have already dismissed charges where defendants lacked the ability to access or understand the online registration system.

3. Fifth Amendment Self-Incrimination Risks

Form G-325R requires registrants to disclose potentially incriminating information about their immigration status and history, raising Fifth Amendment concerns. Legal advocates argue that compelling such admissions under threat of prosecution for non-registration forces individuals to choose between self-incrimination and criminal liability.

4. Judicial Rejections of Constructive Notice

Multiple courts have dismissed charges under the registration statute, finding that “willful” violations require actual notice to defendants. Cases have been dismissed where the government failed to show that individuals had meaningful notice of the new requirements or the ability to comply.

Pending Appellate Issues

Appellate courts are now considering whether the Department of Homeland Security circumvented the Paperwork Reduction Act by implementing Form G-325R without proper approval, whether the rule’s enforcement results in unlawful disparate impact, and whether “carry papers” requirements violate Fourth Amendment protections against unreasonable searches and seizures.

Practice Note: Defense counsel should consider challenging registration-related charges on grounds of lack of mens rea, due process violations, and suppression of evidence obtained through potentially unlawful registration procedures.

Key Takeaways

  • Most noncitizens who have ever received a visa, green card, EAD, or I-94 are already registered.
  • If you entered without inspection, are a Canadian visitor without an I-94, or a child turning 14, you likely must register.
  • Always carry proof of registration if you are 18 or older.
  • If in doubt, consult an immigration lawyer.

This information is current as of May 31, 2025. For updates and official instructions, always check the USCIS website and consult with a qualified immigration attorney.

Sources: Congressional Research Service, USCIS

Source: For the original USCIS regulation and rule on the Alien Registration Act enforcement, see the Federal Register Interim Final Rule published by DHS and USCIS, March 12, 2025. This rule designates the new registration form (Form G-325R) and outlines the registration requirements effective April 11, 2025.

Alien registration 2025

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When Paperwork Errors Don’t End Cases: The New Rules for Defective NTAs After Lopez-Ticas

Posted on May 29, 2025 by Mike Baker

Defective NTAs After Lopez-Ticas: How Recent BIA Rulings Reshape Removal Proceedings

Posted on by Immigration Law Team

A Notice to Appear (NTA) is the formal document that starts removal proceedings in immigration court. For years, missing information—such as the hearing date or time—could be grounds for termination of a case. In 2025, the Board of Immigration Appeals (BIA) issued a landmark decision, Matter of Wendi Del Carmen Lopez-Ticas, 29 I&N Dec. 90 (BIA 2025), that changed the rules for everyone involved. This decision, combined with important 2024 rulings such as Matter of R-T-P-, Matter of Aguilar Hernandez, and Matter of Larios-Gutierrez de Pablo, redefines how defective NTAs are handled.

The Core Holding: Matter of Wendi Del Carmen Lopez-Ticas, 29 I&N Dec. 90 (BIA 2025)

The BIA ruled that defective NTAs—those missing time or date information—do not automatically terminate proceedings. Key takeaways include:

  • Timely Objections Are Mandatory: Challenges to defects must be raised before the close of pleadings (usually at the first or second hearing).
  • Claim-Processing Rule: Missing time or date is a procedural flaw, not a jurisdictional error.
  • Retroactive Application: The timeliness standard established in Matter of Fernandes applies to all cases, even those initiated before this decision.
  • Binding Concessions: Respondents are bound by counsel’s admissions unless egregious circumstances (such as ineffective assistance of counsel) are proven.

2024 Precedents Shaping the Landscape

Matter of R-T-P-, 28 I&N Dec. 828 (BIA 2024)

  • Remedying Defects: Immigration Judges may amend NTAs by writing in missing time or date upon DHS motion, provided the NTA becomes a single document (complying with Niz-Chavez v. Garland) and the respondent receives at least 10 days’ notice of the new hearing.
  • No Prejudice Requirement: Respondents do not need to prove harm from defective NTAs if they object timely.

Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024)

  • Form I-261 Invalid for Cure: DHS cannot fix defective NTAs by filing a Form I-261 (supplemental notice). The Supreme Court’s Niz-Chavez “single document” rule prevails.
  • Strategic Takeaway: Object early—DHS must refile a compliant NTA or seek Immigration Judge amendment.

Matter of Larios-Gutierrez de Pablo, 28 I&N Dec. 868 (BIA 2024)

  • Retroactive Application: The Fernandes timeliness rule (object pre-pleadings) applies retroactively. Older cases cannot revive forfeited objections.

Procedural Roadmap for Practitioners

Step 1: Review NTA Immediately

Use tools like the following Python code to flag issues:

def check_nta(nta):
    required = ['date', 'time', 'place']
    missing = [field for field in required if not nta.get(field)]
    if missing:
        return "Object immediately: Missing " + ", ".join(missing)
    return "NTA appears complete"

This code checks for missing required fields in the NTA. If any are missing, it prompts you to object immediately.

Step 2: Object Before Pleadings Close

  • Failure = Forfeiture: Late objections are barred (per Larios-Gutierrez de Pablo).
  • Remedy Options:
    • Immigration Judge amendment (per R-T-P-).
    • DHS refiling (per Aguilar Hernandez).

Step 3: Document Strategy

Not objecting to accrue physical presence time for cancellation of removal is risky but permissible if documented.

Impact on Key Stakeholders

Stakeholder Rights/Responsibilities
Respondents Must act fast; bound by counsel’s decisions unless egregious circumstances are proven.
DHS Can seek Immigration Judge amendments but cannot use Form I-261 (per Aguilar Hernandez).
Immigration Judges Must enforce timely objections and ensure amendments comply with R-T-P-’s single-document rule.

Critical Takeaways

  1. Defective NTAs are not automatic tickets to termination anymore.
  2. You must object to errors before pleadings close, or you lose your chance.
  3. Courts can fix paperwork errors if you object on time, but late objections do not work.
  4. What your lawyer says in court usually binds you, unless you can prove a serious problem.
  5. These rules apply to all cases, even those that started before 2025.

Conclusion: The New Era of NTA Litigation

The 2024–2025 rulings create a procedural tightrope:

  • For Respondents: Timeliness is everything. Delay = forfeiture.
  • For DHS: Amendments are possible but constrained by Niz-Chavez and Aguilar Hernandez.
  • For Courts: Efficiency is prioritized, but due process requires strict adherence to claim-processing rules.

By integrating Lopez-Ticas with 2024 precedents, practitioners can navigate this evolving landscape with precision—ensuring compliance while zealously advocating for clients’ rights.

Full Case Citations

This post reflects the state of U.S. immigration law as clarified by the Board of Immigration Appeals in 2025. For legal advice, consult a qualified professional.

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