24045: Hermantin(pub)Immigration-Case raises citizens rights issues (fwd)

[Bob Corbett <corbetre@webster.edu>]

From: leonie hermantin <lhermantin@hotmail.com>

Posted on Mon, Jan. 10, 2005


IMMIGRATION
Case raises citizen rights issues
A ruling by an appellate court in Atlanta last week could make foreign-born
U.S. citizens more vulnerable to revocation of their citizenship.
BY ALFONSO CHARDY AND JAY WEAVER
achardy@herald.com

An unprecedented court ruling on stripping a foreign-born person's U.S.
citizenship may give the federal government a potent new tool for rooting
out naturalized immigrants with criminal pasts, some legal experts say.

The 11th U.S. Circuit Court of Appeals said last week the government can
revoke Lionel Jean-Baptiste's citizenship for alleged drug trafficking while
awaiting naturalization -- even though he wasn't charged and convicted until
after he became a citizen.

The key issue was whether the mere allegation of criminal activity against
the Haitian American demonstrated a lack of ''good moral character,'' a
requirement for naturalization. The court said yes.

Several top immigration lawyers called the Miami restaurateur's battle with
the government a ''test case'' that could lead to more people losing their
naturalized citizenship.

''I have to assume that the government wouldn't have put this amount of work
and effort into bringing this denaturalization case for this one person
unless they contemplate using this strategy in the future,'' said Stephen
Legomsky, an immigration law professor at Washington University in St.
Louis.

Immigration and Customs Enforcement officials would not comment on the case.
But department spokeswoman Barbara Gonzalez suggested the agency is prepared
to aggressively pursue anyone who violates immigration law.

''ICE is committed to restoring integrity to the nation's immigration system
through thorough investigation and the presentation of solid, fact-based
evidence to the court,'' she said.

TOUGHER STANCE

Against a backdrop of national anti-immigrant sentiment in the early 1990s,
the Congress adopted tougher laws in 1996 requiring the government to deport
immigrants with criminal convictions. After the Sept. 11, 2001, attacks, the
scrutiny intensified with more thorough background checks of all immigrants.

In such a climate, the Atlanta appellate court's ruling has sent chills
through the immigration legal community.

''They are setting a frightening precedent that would allow attacks on
people's citizenship virtually at will on a theory that the government
believes they lacked good moral character,'' said Ira Kurzban, an
immigration lawyer and University of Miami adjunct law professor. ``It means
once a foreign national's citizenship is obtained, it is no longer secure.''

David Martin, a University of Virginia law professor who served as the
immigration service's general counsel during the Clinton administration,
said raising that concern was legitimate.

''There is enough questionable stuff going on in the war against terror that
I could see that happen,'' he said. ``It opens up the possibility for what
could be done.''

But Martin cautioned against an alarmist reaction to the Jean-Baptiste
ruling. He said he did not think the government would have the inclination
or resources to go after every allegation of bad moral character.

He also said the government pursues only a handful of denaturalization cases
a year because taking such action is so drastic and requires considerable
evidence.

''This particular case is fairly focused, so the potential impact is not
that great,'' Martin said. ``I would be surprised if there's a large number
of people that fit this category. They would have to be discovered within a
few years after their naturalization.''

Legomsky disagreed -- somewhat.

''I'm not predicting there will be an avalanche of cases,'' he said. ``But I
do think more and more people are going to fall into this situation because
naturalization proceedings take so long and there is that much more
opportunity for a person to commit a crime during this protracted period.''

The Jean-Baptiste ruling could become the law of the land if he pursues a
likely appeal and the U.S. Supreme Court upholds the lower courts. For now
though, the decision only affects cases in the 11th Circuit's jurisdiction
-- Florida, Georgia and Alabama.

FOCUS OF CASE

The denaturalization case does not involve any constitutional issues, but
rather focuses on the government's interpretation and enforcement of
immigration laws.

Experts said the high court would be more likely to hear the case if another
appellate court makes a contrary ruling, creating a legal conflict that only
the Supreme Court can resolve.

The Jean-Baptiste case would not have drawn as much attention had it
followed the usual pattern of the 30 to 50 denaturalization cases filed
annually. In most cases, the government discovers that the foreign-born
citizen failed to disclose a criminal conviction or immoral conduct before
he was naturalized.

In the late 1970s, for example, the government began a more systematic
program of citizenship revocations that targeted former Nazis and
collaborators in particular.

About a decade ago, a surge in citizenship revocations occurred when federal
investigators discovered that dozens of applicants with criminal backgrounds
obtained citizenship under a Clinton administration initiative that promoted
mass naturalizations.

But in Jean-Baptiste's case, he didn't lie about any criminal history on his
citizenship application because he had not been charged with a crime before
his naturalization in April 1996.

He was indicted six months later and convicted of participating in a crack
cocaine-distribution conspiracy in January 1997. Jean-Baptiste has
steadfastly maintained his innocence.

A key factor in the appellate ruling was that the criminal activity took
place after he had applied for citizenship but before he was naturalized.

Government attorneys said in court papers that Jean-Baptiste deserved to
lose his citizenship because committing a crime while awaiting citizenship
demonstrated that he was not of good moral character.

The appellate court agreed, saying a naturalized immigrant cannot lose U.S.
citizenship because of a conviction. However, the government can use that
conviction to show the person was involved in criminal activity, which would
disqualify him from citizenship.

The ruling could have sweeping consequences.

Tammy Fox-Isicoff, another Miami immigration attorney, said defense lawyers
will have to warn recently naturalized clients charged with a crime about
the potential consequences of losing their citizenship.

HARD CHOICES

For example, a serious problem could arise when certain defendants must
choose between going to trial or accepting a plea deal. The reason: They
might get a shorter prison term by pleading guilty but face revocation of
their citizenship, with the conviction serving as proof of bad moral
character.

''Naturalized citizens from now on will be walking around on eggshells, not
knowing whether or not the government is going to take their citizenship
away,'' said Kenneth Panzer, a North Miami immigration attorney.