Originally Appeared in The Intercept.com.
Maryam Saleh
February 23 2019
A FEDERAL JUDGE on Thursday issued a ruling that could test the strength of the Trump administration’s theory behind stripping naturalized Americans of their U.S. citizenship.
At issue is the question of whether Parvez Khan, a sexagenarian native of Pakistan, became a U.S. permanent resident — and ultimately a naturalized citizen — fraudulently, by concealing the fact that he had previously received an order of deportation under a different name.
The Justice Department contends that the case is simple — that Khan changed his identity in order to game the U.S. immigration system. But Khan, who lives in Florida, argues that he never even knew that an immigration court had ordered his deportation. He says the government’s case against him can be explained by a combination of factors that were outside of his control — including the lack of a proper translator when he was detained by immigration officials in 1991 and applied for asylum, as well as a lawyer who never told him what was going on in his case.
U.S. Magistrate Judge Patricia Barksdale found that enough of the facts are disputed to allow the case to move forward to trial. The ruling was a blow — a rebuke of the government’s portrayal of an open-and-shut case — to the Trump administration’s efforts to use an initiative called Operation Janus for denaturalizing potentially thousands of U.S. citizens.
“We are glad to see that the judge in this case is putting the government to its burden of proving that the very high bar for denaturalization has been met,” said Sirine Shebaya, an attorney at Muslim Advocates who has been pressing the government for information on these efforts. “We continue to have ongoing concerns about Operation Janus and about the government’s denaturalization efforts generally, which appear to be designed to target and scare minority communities.”
On Thursday, Barksdale, of the Middle District of Florida, issued a 59-page order in the case, U.S. v. Parvez Manzoor Khan, denying requests by both parties to resolve the case in their favor before going to trial — what is known in legal parlance as a motion for summary judgment.
Barksdale, in her order, notes that Khan’s denial that he acted intentionally or knowingly in a deceptive manner when applying for a change in immigration status is not alone enough to withstand summary judgment. Nor is his belief that he’s always been in the United States legally. “But Khan presents more,” Barksdale writes, pointing to evidence he provided of a serious language barrier, an ineffective lawyer, and a careless interviewer for his applications for permanent residence and citizenship.
Denaturalization is increasingly looking like the next front in President Donald Trump’s war on immigrants, and the Trump administration, to the extent that it has publicized its efforts, has largely waged that war through one-sided press releases.
Cases like Khan’s make clear that there has been a profound shift in the way the United States approaches the question of what it means to be an American.
Khan is one of three people singled out by the Justice Department when it first made clear its intent to expand the use of denaturalization, but he is the only one of those targets who defended himself against the government’s allegations. (The other two did not respond to the charges against them.) His case, which will go to trial on April 2, shows that when the government is faced with an actual defense, its justification for stripping away citizenship falters.
There is a voluminous history of denaturalization in the United States, which has been frequently used to target immigrants based on their race, ethnicity, or national origin. But for the last 50 years or so, the tactic has been used sparingly — mostly for people who lied on their naturalization applications to cover up war crimes or financial support for terrorists. Once obtained, citizenship — which, among other things, carries with it the right to vote — has had an air of finality about it.
The Trump administration, amid its two-year assault on immigration, seems poised to change that. While much of its denaturalization efforts remain shrouded in secrecy, cases like Khan’s make clear that there has been a profound shift in the way the United States approaches the question of what it means to be an American.
KHAN’S ORDEAL BEGAN in September 2017, when the Justice Department issued a press release stating it was going after three men — Khan, Rashid Mahmood, and Baljinder Singh — for obtaining U.S. citizenship after being ordered deported under different names. They were identified under Operation Janus, an initiative of President Barack Obama’s administration that sought to identify people who might have been naturalized despite deportation orders or criminal proceedings because their fingerprints had not been digitized.
Operation Janus specifically targeted nationals of “special interest” countries, defined only as countries “that are of concern to the national security of the United States” in a 2016 report from the Department of Homeland Security’s Office of Inspector General. Mahmood, like Khan, is a native of Pakistan, while Singh is a native of India.
In January 2018, the Justice Department issued a second press release, this time announcing that a federal court had stripped Singh of his citizenship. The release, celebratory in tone, failed to mention how exactly the Justice Department won that case: Singh never responded to the allegations against him, and the court granted the government’s request for summary judgment. It’s unclear whether Singh is even aware that he is no longer a U.S. citizen. Mahmood, likewise, has not responded to the government’s allegations in his case. He missed the deadline to submit an answer, and the court has given the government until March 26 to file a motion for summary judgment. (U.S. v. Rahman, another Operation Janus case filed in February 2018, also seems likely to go to trial.)
Under Operation Janus, U.S. Citizenship and Immigration Services identified about 315,000 cases where some fingerprint data was missing from a central database and combed through those cases to find discrepancies. In the January 2018 release about Singh, the Justice Department wrote that Citizenship and Immigration Services “has stated its intention to refer approximately an additional 1,600 for prosecution.”
The target list, however, appears to have expanded. A budget request by U.S. Immigration and Customs Enforcement for the 2019 fiscal year revealed that the Department of Homeland Security intended to spend $207.6 million to investigate 887 leads uncovered through Operation Janus and to review 700,000 cases under Operation Second Look, a related initiative. Over the last two years, the total number of denaturalization cases has nearly doubled over the total number of cases filed between 2004 and 2016.
“This administration is overusing the very extreme measure of denaturalization against Muslim and other minority communities and effectively creating a second class of citizens who can no longer feel secure in their belonging to the United States.”
There is no comprehensive way to track the Justice Department’s current denaturalization efforts. But there are at least two dozen civil denaturalization cases pending in federal court, according to a review of court records by immigration attorney Matthew Hoppock, who represents clients in these types of cases. (The government is also using criminal charges as a way to secure denaturalization.)
In June, U.S. Citizenship and Immigration Services Director Lee Francis Cissna said his agency would be opening a new office in Los Angeles dedicated to investigating cases under Operation Janus and referring cases to the Justice Department for prosecution.
“I thought there would be more movement by now, because they said they were opening this office in LA,” Hoppock told me recently. He said the fact that the office is run by U.S. Citizenship and Immigration Services is odd, because even though the agency does the initial investigation, it’s the Justice Department that prosecutes these cases. “I don’t know what there is to do for seven or 10 attorneys at this little office in LA,” Hoppock said, “but we just haven’t heard anything more about what they’re up to.”
Still, the mere prospect of hundreds of thousands of old cases being reviewed for discrepancies is enough to sow fear in immigrant communities.
“This administration is overusing the very extreme measure of denaturalization against Muslim and other minority communities and effectively creating a second class of citizens who can no longer feel secure in their belonging to the United States,” Shebaya, the Muslim Advocates attorney, told me.
AMONG THE THOUSANDS of cases reviewed under Operation Janus, Khan’s was hand-picked by the Justice Department to be one of the poster boys for the operation. Presumably, then, it would be a slam dunk case. Barksdale’s Thursday order makes clear that it’s not.
Because citizenship is so valuable, the government bears a heavy burden of proof in denaturalization cases; the Supreme Court has likened it to the “beyond a reasonable doubt” standard in a criminal case. Meeting that burden becomes more difficult when a defendant, like Khan, proffers a response that pokes holes in the government’s version of events.
The Justice Department is seeking to denaturalize Khan on three grounds. U.S. government lawyers argue that he lacked the “good moral character” requirement for U.S. citizenship because he lied in his naturalization interview; that he was ineligible to naturalize because he had obtained his permanent resident status by misrepresenting a material fact; and that he became a citizen by concealing or willfully misrepresenting a material fact. In each of these scenarios, the argument rests on a 1992 deportation order against Khan, which the government claims he intentionally concealed while applying for permanent residence and citizenship. (The government’s fingerprint records of Khan from 1991 were never digitized, which is why his previous record did not come up when he applied to change his immigration status years later.)
The truth is a little more complicated. Khan arrived in Los Angeles in December 1991, and immigration officers determined that his Pakistani passport, which bore the name Mohammad Akhtar, had been altered. Because of this, he was detained and ordered to go to immigration court before it could be decided whether he could enter the United States.
Khan, in an affidavit submitted in the denaturalization case, says immigration authorities never provided him with a translator who spoke Urdu, his native language and the official language of Pakistan. (Records from the time say he spoke Punjabi.) He communicated with a lawyer, Howard George Johnson, through an Indian cellmate who did not speak Urdu. The asylum application Johnson eventually submitted on Khan’s behalf included a number of errors, including his mother’s name and referring to Khan as “Jaweed Khan a/k/a Mohammad Akhtar.” Khan signed his asylum application with the name Mohammad Akhtar, he says in his affidavit, because Johnson told him to do so.
Johnson did not give Khan a copy of the paperwork, nor did he ever tell Khan that he would later have a hearing in immigration court, he says in his affidavit. In January 1992, Khan was released on bond. The related paperwork listed Johnson’s address, rather than a Florida address, belonging to Khan’s brother, used in the asylum application. The immigration court later sent a notice of Khan’s asylum hearing to Johnson’s address; Khan says Johnson, who has since died, never informed him of the hearing. The court ordered Khan’s deportation in absentia.
All subsequent correspondence from the immigration court regarding Khan’s deportation was mailed to Johnson, who in 1998 was suspended by the California Bar for misconduct, including in relation to communicating with clients. Khan says he had no idea he was ever ordered deported and thus could not have mentioned it in his applications for permanent residency or citizenship.
The circumstances portrayed by Khan may not ultimately help him win his case. After all, the court also denied his motion for summary judgment. In his motion for pretrial judgement in his favor, Khan, through his Orlando, Florida-based lawyer James LaVigne, argues that even if the government’s allegations were true, he would still be entitled to citizenship, since he became a permanent resident through his marriage to a U.S. citizen. In ruling against Khan’s motion, Barksdale characterized that argument as “unclear.”
Whatever Barksdale decides after the April trial, Khan’s case may be a bellwether of how successful the Trump administration’s denaturalization strategy will be.
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