Why Dzhokhar Tsarnaev Can’t Be Stripped of His Citizenship

The law, lawyers, and the court.
April 26 2013 11:15 AM

Citizen Bomber

Why can’t Dzhokhar Tsarnaev be stripped of his citizenship? History.

An woman takes the oath of allegiance during a naturalization ceremony at the at district office of the U.S. Citizenship and Immigration Services (USCIS) on January 28, 2013 in Newark, New Jersey.
Current law states that naturalized Americans can only be stripped of citizenship if facts emerge that would have initially warranted denial of their application.

Photo by John Moore/Getty Images

If the Boston Marathon bombing had taken place 70 to 90 years ago, alleged bomber Dzhokhar Tsarnaev would have been stripped of his American citizenship in addition to being imprisoned or executed for his crimes. In the first decades of the 20th century, naturalized citizens like Tsarnaev were routinely deprived of their citizenship for committing radical, "un-American" activities that took place after their naturalization. Citizenship in those years was understood as a benefit offered by a country in exchange for its citizens’ obedience to the laws of the land, always with the threat that certain actions could lead to its loss. It’s an approach the Supreme Court later rejected in the name of equal rights.

Congress established a uniform naturalization procedure for the first time in 1790. For more than a century, 5,000 different courts had the power to naturalize, using varying forms and fees. In 1906, the Naturalization Act reduced the number of courts, imposed a uniform fee and form, and provided for a process of denaturalization in the federal courts.

Anarchists, socialists, and opponents to the World War I soon began losing their citizenship by the dozens, later joined by communists and Nazis. This began in 1918, when courts started to consider whether citizens swore their oath of allegiance to the United States with a "mental reservation" if they acted against their adopted home after being naturalized. The courts assumed that the loyalty of naturalized Americans should increase with the passage of time. So they were especially likely to strip citizenship from a naturalized American whose perceived act of disloyalty took place after he was naturalized.

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This was the state of the law until 1943 when Wendell Willkie, a lawyer who had been the Republican nominee for president in 1940, took the case of William Schneiderman to the Supreme Court. Schneiderman was the secretary of the Communist Party of California; he had been denaturalized by lower federal courts for both the concealment of his Communist affiliation and for his “lack of attachment” to the Constitution when he was naturalized in 1927. WiIlkie argued that the exercise of a citizen's freedom of thought—even by a foreign-born American Communist years after his naturalization—did not mean that he’d done anything fraudulent at the moment of naturalization. Schneiderman had not lied: He’d never been asked if he was a Communist, and being a Communist did not bar an immigrant from being naturalized in 1927. Willkie won. The court decided that denaturalization could occur only for acts that took place beforehand and that could be demonstrated through clear and convincing evidence.

The Supreme Court reinforced the rights of naturalized citizens in 1967. Writing for the majority in the case of Afroyim v. Rusk, Justice Hugo Black said the 14th Amendment guaranteed protection for “every citizen of this Nation against a congressional forcible destruction of his citizenship.” When the 14th Amendment states that, “All persons born or naturalized in the United States … are citizens of the United States,” it makes citizenship an absolute right. The same is not true of “life, liberty, or property”; citizens can be deprived of each if they are afforded “due process of law.”

Today, a naturalized American can be stripped of citizenship only if facts emerge that would have initially warranted denial of his application—never for actions committed after the naturalization. This frames the fate of Dzhokhar Tsarnaev. He will probably be deprived of his liberty and, perhaps, his life. Even if condemned to death, however, Tsarnaev will face his sentence as an American citizen. Each citizen—even the most troubling—preserves his status. For the court, safeguarding the rights of each naturalized American ensures the dignity and rights of all.

Read more on Slate about the Boston Marathon bombing.

Patrick Weil is a visiting professor at Yale Law School and the author of The Sovereign Citizen: Denaturalization and the Origins of the American Republic.