[Federal Register Volume 59, Number 144 (Thursday, July 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18370]


[Federal Register: July 28, 1994]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 340

[INS No. 1634-93]
RIN 1115-AD45


Revocation of Naturalization

agency: Immigration and Naturalization Service, Justice.

action: Proposed rule.

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summary: This proposed rule would amend the regulations of the 
Immigration and Naturalization Service (Service) relating to revocation 
of naturalization under section 340 of the Immigration and Nationality 
Act (Act). Specifically, this rule proposes an administrative process 
whereby a district director may reopen and reconsider applications for 
naturalization pursuant to section 340(i) of the Act. The purpose of 
this rule is to facilitate the transfer of naturalization authority 
contemplated by Congress while retaining the protection for the 
individual provided under judicial naturalization.

dates: Written comments must be submitted on or before September 26, 
1994.

addresses: Please submit written comments in triplicate, to the Record 
Systems Division, Director, Policy Directives and Instructions Branch, 
Immigration and Naturalization Service, 425 I Street NW., Room 5307, 
Washington, DC 20536. To ensure proper handling, please reference INS 
No. 1634-93 on your correspondence.
for further information contact: Ron Chirlin, Senior Immigration 
Examiner, Naturalization and Special Projects Branch, Adjudications 
Division, Immigration and Naturalization Service, 425 I Street NW., 
Room 3214, Washington, DC 20536, Telephone: (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

    The purpose of this proposed rule is to provide a procedure for the 
Service to reopen administrative naturalization proceedings pursuant to 
section 340(i) of the Act, as amended by the Immigration Act of 1990, 
(IMMACT), Public Law 101-649, dated November 29, 1990. Congress amended 
section 340 of the Act, Revocation of Naturalization, to bring the 
reopening process of section 340(i) of the Act into conformity with the 
change to Administrative Naturalization. That section now provides the 
Attorney General with the power to correct, reopen, alter, modify, or 
vacate an application granted under Administrative Naturalization. Such 
power had heretofore rested within the discretion of the courts, which 
had held exclusive jurisdiction over naturalization prior to the 
enactment of IMMACT.
    Section 340 of the Act sets forth the requirements and procedure 
for revoking an order of naturalization. In this statute, Congress has 
given the Attorney General two distinct avenues by which to set aside 
an order of naturalization. Section 340(a) provides that the United 
States Attorney may institute revocation proceedings in Federal court 
based on the ground that naturalization was procured by concealing or 
misrepresenting a material fact or by illegality. The United States 
Attorney may institute such proceedings at any time based on an 
affidavit of good cause prepared by the Service. The purpose of 
revocation proceedings under section 340(a) of the Act is to set aside 
an order of naturalization and to cancel a certificate of 
naturalization. The burden rests with the Government to establish that 
naturalization should be revoked.
    Alternatively, section 340(i) allows for reopening of orders of 
naturalization. Prior to amendment by IMMACT, section 340(i) permitted 
a court to reopen naturalization proceedings before expiration of the 
term of court. The Government would move, pursuant to Federal Rule of 
Civil Procedure 60(b), to seek the court's reopening and 
reconsideration of a naturalization petition, usually on the grounds of 
fraud, mistake, or in light of new, previously undiscoverable evidence. 
If the court granted the Service's motion, it would reopen 
naturalization proceedings and render a new decision on the petition 
for naturalization. The burden remained upon the petitioner to 
establish eligibility for naturalization. Section 340(i) was viewed as 
a means to ensure that courts would not be restricted in their power to 
consider motions made pursuant to applicable rules of civil procedure.
    With the change to Administrative Naturalization brought about by 
IMMACT, however, courts no longer hold jurisdiction over naturalization 
applications. It is now the responsibility of the Service to receive 
applications for naturalization and conduct examinations to determine 
statutory eligibility for citizenship. Additionally, the Service 
renders formal determinations on grants and denials of applications for 
naturalization, and provides for administrative review of applications 
subject to denial for cause before a final determination is made. It 
follows therefore that Congress has amended section 340(i) of the Act 
to provide the Attorney General with the reopening power previously 
held by the courts.
    The IMMACT's amendment to section 340(i) of the Act simply replaces 
the court's jurisdiction with that of the Attorney General, leaving the 
authority described in that statute unchanged. Taking this into 
account, the Service has attempted to develop a regulatory framework 
that resembles the way in which courts conducted proceedings under the 
pre-amended section 340(i) of the Act. To this end, the Service has 
relied upon Fed. R. Civ. P. 60(b) and related jurisprudence. In so 
doing, the Service believes that the proposed framework will facilitate 
the transfer of naturalization authority contemplated by Congress, 
while retaining the protection for the individual provided under 
judicial naturalization.

The Proposed Rule

    The Service proposes to add to Title 8 of the Code of Federal 
Regulations a new Sec. 340.1, which sets forth the process for 
reopening naturalization applications pursuant to section 340(i) of the 
Act. Under this proposed rule, the Service's power to reopen would be 
limited to situations where the Service obtains evidence, unavailable 
during the original naturalization proceeding, that it granted 
naturalization by mistake, that the applicant procured naturalization 
by fraud or misrepresentation, or that the applicant was not in fact 
eligible for naturalization. In determining when reopening of 
naturalization is appropriate, the Service found instructive the 
grounds described in Fed. R. Civ. P. 60(b), as that provision codified 
the common-law concept that courts have the authority to relieve a 
party of a final judgment for the reasons described above. Moreover, 
there exists a developed body of administrative and judicial case law 
for reopening on these grounds.
    In 8 CFR 340.1(b), the Service proposes that notices of intent to 
reopen naturalization proceedings under section 340(i) of the Act be 
served on the affected party no later than 1 year from the time 
naturalization vested. The Service found that setting a 1-year time 
period for such action would assist in keeping reopenings limited to 
actions truly corrective in nature, as the Service does not intend the 
reopening process to be used in cases requiring extensive investigation 
of possible grounds for revocation.
    Section 340.1(b) also proposes notice and response requirements for 
administrative reopening of naturalization applications. The Service 
proposes that the district director who originally granted the 
naturalization proceedings pursuant to this regulation. The proposed 
regulation also provides that the applicant be personally served with 
notice of intent to reopen naturalization proceedings and to deny 
naturalization. The Service must include with the notice all evidence 
upon which the intended reopening is based. The proposed regulation 
further provides that the applicant must be given sixty (60) days 
during which to respond to the notice, as well as the opportunity to 
submit any evidence in support of the naturalization application. The 
applicant may also request an informal, nonadversarial hearing to 
present evidence in response to the notice of intent to reopen 
naturalization proceedings, and to challenge the grounds for reopening 
alleged by the district director. The proposed regulations provide that 
the applicant, in lieu of responding to the notice of intent to reopen 
naturalization proceedings, may also elect to withdraw the 
naturalization application which the district director intends to 
reopen. The applicant may do so either in writing, or by failing to 
respond in any way to the notice.
    Section 340.1(c) describes the evidence that the district director 
must consider when rendering a decision on whether to reopen 
proceedings and deny the naturalization application. Because a reopened 
naturalization application is treated as a continuation of the original 
naturalization proceedings, the burden rests with the applicant to 
establish eligibility for naturalization. The district director's 
decision to reopen the naturalization application must reflect that he 
or she has considered all evidence of record relating to the 
naturalization application. Because the Service recognizes the need to 
provide the applicant with a prompt adjudication on whether the 
application will be reopened and denied, the regulation at 
Sec. 340.1(d) proposes that such decision must be rendered no later 
than 180 days after service of the notice of intent to reopen 
naturalization proceedings and to deny naturalization.
    Section 340.1(e) proposes that the applicant may seek 
administrative appeal of a district director's adverse decision. If the 
district determines, however, after examining the evidence of record, 
that reopening is inappropriate, the Service must forego further 
investigative action under section 340(i) of the Act, but may pursue 
plenary revocation action under section 340(a) of the Act. All 
administratively final decisions under this proposed rule are subject 
to judicial review in Federal court.
    The Service wishes to point out that until a decision to reopen 
naturalization proceedings and to deny naturalization becomes final, 
through failure to appeal or through exhaustion of all administrative 
and/or judicial appeals, the applicant remains a citizen of the United 
States. Once a decision adverse to the applicant becomes final, 
however, the naturalization is rendered void ab initio and the 
applicant must surrender his or her certificate of naturalization for 
cancellation.
    This rule proposes to redesignate Sec. 340.11 as Sec. 340.2 and to 
change the heading to distinguish the actions described therein from 
those described in Sec. 340.1. The Service also proposes changes in the 
language and format of redesignated Sec. 340.2 to clarify the 
recommendation procedures and requirement set forth in that section.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities because of the following factors. This rule proposes a 
procedure for the Service to reopen naturalization applications filed 
by individuals. The affected parties are not small entities, and the 
impact of the regulation is not an economic one.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, Sec. 3(f), Regulatory 
Planning and Review, and the Office of Management and Budget has waived 
its review process under section 6(a)(3)(A).

Executive Order 12612

    The regulations proposed herein will not have substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient Federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12606

    The Commissioner of the Immigration and Naturalization Service has 
certified that she has assessed this rule in light of the criteria in 
Executive Order 12606 and has determined that this rule will not have 
an impact on family formation, maintenance, or general well-being.

List of Subjects in 8 CFR Part 340

    Citizenship and naturalization, Law enforcement.

    Accordingly, part 340 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 340--REVOCATION OF NATURALIZATION

    1. The authority citation for part 340 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1443.

    2. A new Sec. 340.1 is added to read as follows:


Sec. 340.1  Reopening of naturalization application by district 
director pursuant to section 340(i) of the Act.

    (a) Reopening, general. On its own motion, the Service may reopen a 
naturalization proceeding and deny naturalization in accordance with 
this section, if the Service obtains credible and probative evidence 
which:
    (1) Was not available during the original naturalization 
proceeding;
    (2) Would have had a material effect on the outcome of the original 
naturalization proceeding; and
    (3) Which tends to prove that:
    (i) The Service granted the application by mistake;
    (ii) The applicant procured naturalization by fraud or 
misrepresentation; or,
    (iii) The applicant was not in fact eligible for naturalization.
    (b) Procedure for reopening of naturalization proceedings.
    (1) Jurisdiction. The district director under whose jurisdiction 
the original naturalization proceeding took place has jurisdiction to 
reopen proceedings under this section, except that notice of intent to 
reopen naturalization proceedings and to deny naturalization must be 
served no later than 1 year after the effective date of the order 
admitting a person to citizenship, as determined under Sec. 337.9 of 
this chapter.
    (2) Notice of intent to reopen naturalization proceedings and to 
deny naturalization. If the district director determines that reopening 
a naturalization proceeding is warranted under paragraph (a) of this 
section, the district director shall prepare a written notice of intent 
to reopen naturalization proceedings and to deny naturalization. The 
notice shall describe in clear and detailed language the grounds on 
which the district director intends to reopen the proceeding. The 
notice shall include all evidence which the district director believes 
warrants reopening of the proceeding. The notice shall advise the 
applicant of his or her right to submit a response to the notice and to 
request a hearing, as provided in paragraph (b)(3) of this section. The 
Service shall serve the notice of intent to reopen naturalization 
proceedings and to deny naturalization upon the applicant by personal 
service, as described in Sec. 103.5a(a)(2) of this chapter.
    (3) Applicant's opportunity to respond and to request hearing.
    (i) Within sixty (60) days of service of the notice of intent to 
reopen naturalization proceedings and to deny naturalization, the 
applicant may submit a response to the Service. The response may 
include any statements and/or additional evidence the applicant wishes 
to present in response to the proposed grounds for reopening.
    (ii) The applicant may request a hearing on the notice of intent to 
reopen naturalization proceedings and to deny naturalization before an 
immigration officer authorized to review naturalization applications 
under sections 310 and 335 of the Act. The applicant must submit a 
written request for a hearing together with any statements and/or 
additional evidence described in paragraph (b)(3)(i) of this section 
within sixty (60) days of service of the notice. The Service shall 
schedule a requested hearing as soon as practicable.
    (4) Withdrawal of application or failure to respond.
    (i) Upon receipt of the notice of intent to reopen naturalization 
proceedings and to deny naturalization, the applicant may submit a 
written statement admitting the facts which the district director 
alleges as grounds for reopening, and withdrawing the application for 
naturalization. The applicant shall sign the statement under oath or 
affirmation or shall certify the truth of the statement under penalty 
of perjury.
    (ii) If the applicant fails to submit a response to the notice of 
intent to reopen naturalization proceedings and to deny naturalization 
within the period specified in paragraph (b)(3) of this section, the 
applicant shall be considered to have admitted the grounds for 
reopening and to have withdrawn the application for naturalization.
    (5) Right to counsel. The applicant may be represented at any time 
during reopening proceedings by an attorney or other representative 
qualified under part 292 of this chapter.
    (6) Burden of proof. Upon service of a notice of intent to reopen 
naturalization proceedings and to deny naturalization, the applicant 
bears the burden of persuading the district director that, 
notwithstanding the evidence described in the notice, the applicant was 
eligible for naturalization at the time of the order purporting to 
admit the applicant to citizenship.
    (c) Record of reopened proceedings. The record shall include, but 
is not limited to:
    (1) The applicant's application for naturalization;
    (2) The Service's notice of intent to reopen naturalization 
proceedings and to deny naturalization with proof of service to the 
applicant;
    (3) All evidence forming the basis for reopening the naturalization 
application;
    (4) The applicant's statements and/or evidence in response to the 
Service's notice and in support of the application; and
    (5) The record of the hearing, if a hearing was held.
    (d) Decision. The district director shall render a written decision 
on the reopened naturalization application within 180 days of service 
of the notice of intent to reopen naturalization proceedings and to 
deny naturalization. The decision shall consist of findings of fact, 
conclusions of law, and a final determination on the naturalization 
application. Notice of decision shall be served on the applicant and 
his or her attorney or representative.
    (e) Appeals. (1) The applicant may appeal an adverse decision under 
paragraph (d) of this section to the Office of Examinations, 
Administrative Appeals Unit. Any appeal shall be filed with the 
district director within thirty (30) days after service of the notice 
of decision. Appeals received after the 30-day period has tolled may be 
subject to dismissal for failure to timely file.
    (2) If, after reviewing the record, the district director 
determines that the applicant has adequately rebutted the grounds for 
reopening but, after such determination, obtains additional evidence of 
the grounds set forth in paragraph (a) of this section, the Service may 
not seek further action regarding reopening of the application, but 
instead may pursue revocation proceedings under section 340(a) of the 
Act.
    (f) Judicial review. If a decision of the Office of Examinations, 
Administrative Appeals Unit, is adverse to the applicant, the applicant 
may seek judicial review in accordance with section 310 of the Act.
    (g) Effect of final decision of denial upon applicant's status. (1) 
A decision to reopen a naturalization proceeding and to deny 
naturalization shall be effective as of the date of the original order 
purporting to admit the applicant to citizenship. The order purporting 
to admit the applicant to citizenship shall then have no legal effect.
    (2) A district director's decision to reopen naturalization 
proceedings and to deny naturalization will be final, unless the 
applicant seeks administrative or judicial review within the period 
specified by law or regulation.
    (3) When a decision to reopen naturalization proceedings and to 
deny naturalization becomes final, the district director shall order 
the applicant to surrender his or her certificate of naturalization. 
The district director shall then cancel the certificate of 
naturalization.
    (4) Notwithstanding the service of a notice of intent to reopen 
naturalization proceedings and to deny naturalization, the applicant 
shall be considered to be a citizen of the United States until a 
decision to reopen proceedings and deny naturalization becomes final.
    (h) Applicant's request for reopening or modification of 
application. After having been granted naturalization and administered 
the oath of allegiance and renunciation, an applicant may move that the 
Service reopen his or her naturalization application for the purpose of 
amending the application in accordance with Sec. 334.5 of this chapter.


Sec. 340.11  [Redesignated as Sec. 340.2 and revised]

    3. Section 340.11 is redesignated as Sec. 340.2 and is revised to 
read as follows:


Sec. 340.2  Revocation proceedings pursuant to section 340(a) of the 
Act.

    (a) Recommendation for institution of revocation proceedings. 
Whenever it appears that any grant of naturalization may have been 
illegally procured or procured by concealment of a material fact or by 
willful misrepresentation, the facts shall be reported to the district 
director having jurisdiction over the naturalized person's last known 
place of residence in the United States. If the district director is 
satisfied that a prima facie case exists for revocation pursuant to 
section 340(a) of the Act, he or she shall report the facts in writing 
to the Assistant Commissioner, Adjudications, with a recommendation 
regarding the institution of revocation proceedings.
    (b) Recommendation for criminal prosecution. If it appears to the 
district director that a case described in paragraph (a) of this 
section or one in which a final decision has been reached under 
Sec. 340.1(g) is amenable to criminal penalties under 18.U.S.C. 1425 
for unlawful procurement of citizenship or naturalization, the district 
director may present such facts to the appropriate United States 
Attorney for possible criminal prosecution.
    (c) Reports. It shall be the responsibility of the district 
director to advise the Service office that originated the information 
upon which the revocation inquiry is based about the progress of the 
investigation, and report the findings of the inquiry as soon as 
practicable.

    Dated: May 19, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-18370 Filed 7-27-94; 8:45 am]
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