25 Pages Posted: 26 Oct 2007
Over the past decade, Congress, the press, and the academy have devoted substantial attention to the system for judicial oversight of deportation matters. There has been scant attention, however, to a parallel judicial role in determining whether a lawful permanent resident meets the standards for citizenship. This role concerns one of the most paramount interests of immigrants. Through citizenship, immigrants gain many rights, including the right to vote, to engage in all forms of employment, and to be free from the threat of deportation.
Although the judicial role in naturalization dates back to 1790, the current statutory scheme was put in place in 1990. Courts exercising jurisdiction in naturalization cases have been unsure of their proper institutional role under this scheme. Some courts have adopted a classic administrative review model, which ignores the specific statutory provisions for naturalization cases. Other courts have adopted a civil litigation model that completely ignores the record developed in the agency adjudication as well as statutory language that allows for a determination on that record.
This article seeks to unpack the origins of the current statutory scheme for judicial review, to provide some initial evaluation of whether it is working to achieve the goals Congress sought to achieve in 1990, and to explore criteria for the judicial role in naturalization cases. The article argues that neither a pure administrative review nor a pure civil litigation model works well in light of the special nature of claims to citizenship. Instead, a hybrid model, that combines features of each, is well designed to protect the interest in fair access to citizenship and best explains the structure of the current law.
Suggested Citation: Suggested Citation
Morawetz, Nancy, Citizenship and the Courts. University of Chicago Legal Forum, p. 447, 2007; NYU Law School, Public Law Research Paper No. 07-19. Available at SSRN: https://ssrn.com/abstract=1024573