Litigating Citizenship

45 Pages Posted: 7 Sep 2019 Last revised: 19 Sep 2019

See all articles by Cassandra Burke Robertson

Cassandra Burke Robertson

Case Western Reserve University School of Law

Irina D. Manta

Hofstra University - Maurice A. Deane School of Law; St. John's University School of Law

Date Written: September 2, 2019

Abstract

By what standard of proof — and by what procedures — can the U.S. government challenge citizenship status? That question has taken on greater urgency in recent years. News reports discuss cases of individuals whose passports were suddenly denied, even after the government had previously recognized their citizenship for years or even decades. The government has also stepped up efforts to re-evaluate the naturalization files of other citizens and has asked for funding to litigate more than a thousand denaturalization cases. Likewise, citizens have gotten swept up in immigration enforcement actions, and thousands of citizens have been erroneously detained or removed from the United States. Most scholarly treatment of citizenship rights has focused on the substantive protection of those rights. But the procedures by which citizenship cases are litigated are just as important — and sometimes more important — to ensure that citizenship rights are safe.

This Article analyzes the due-process implications of citizenship litigation in the United States. It examines different stages at which the citizenship question is judicially resolved, including denaturalization, removal and exclusion, and restrictions on the exercise of citizenship rights such as voting, working, and traveling. The Article concludes that the structure of U.S. democracy relies on the stability of citizenship and requires heightened procedural protections when the government challenges an individual’s citizenship. In the words of Justice Felix Frankfurter, “The history of liberty has largely been the history of observance of procedural safeguards.” Those procedural safeguards are needed to ensure that the judicial branch can remain the stalwart protector of a key pillar of our constitutional democracy.

Keywords: citizenship, immigration, due process

JEL Classification: K37, K41

Suggested Citation

Robertson, Cassandra Burke and Manta, Irina D., Litigating Citizenship (September 2, 2019). Vanderbilt Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3446454

Cassandra Burke Robertson (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3302 (Phone)

Irina D. Manta

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States

St. John's University School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States

HOME PAGE: http://https://www.stjohns.edu/law/faculty/irina-d-manta

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