The Department of Justice issued a press release this week captioned “Justice Department Moves to Strip U.S. Citizenship from 17 Naturalized Sex Offenders, Fraudsters, Drug Dealers, and More”. It included descriptions of the dozen plus five erstwhile aliens who had gained U.S. citizenship despite having engaged in alleged unsavory activity. Number 8, “Neeraj Sharma (Age 50/India)” stands out, because according to DOJ’s complaint in his case, he pled guilty to immigration-related fraud five-plus years ago — for conduct that predated his naturalization — but had retained his U.S. citizenship, nonetheless.
The Facts Alleged in U.S. v. Sharma
The U.S. Attorney’s Office (USAO) filed that complaint in the U.S. District Court for the District of New Jersey (D. N.J.) on June 4, seeking to revoke Sharma’s naturalization, and to date the case has not yet commenced.
Consequently, like all naturalized citizens who have not received a final denaturalization judgment, he is entitled to a presumption of innocence, and the facts as set forth in the complaint are nothing more than allegations. With that caveat, here are the alleged facts that underpin the government’s case.
Sharma is a native of India and was a national of that country when he became a lawful permanent resident (LPR), i.e., obtained a “green card”, in February 2012.
In this country, he served as “the owner and chief executive officer” (CEO) of Magnavision, a business described in the complaint as “an information technology staffing and consulting company with its principal office located at Somerset, New Jersey”.
As CEO of Magnavision, the government alleges, Sharma “signed under penalty of perjury and filed with USCIS eleven H-1B visa petition packages”, each of which included a Labor Condition Application (LCA) relating to the business’s intention to employ a specific number of individuals in identified positions for a stated period.
Once the Department of Labor (DOL) approves an LCA, the employer (in this case, Magnavision) must file a Form I-129 “Petition for a Non-Immigrant Worker” to obtain a nonimmigrant visa for the named employee, which Sharma purportedly did numerous times between April 2015 and April 2017.
The complaint contends that the 11 visa packages Sharma filed with USCIS each contained “an LCA containing false representations about employment, signed by” him and “a fraudulent end client letter bearing a forged signature”.
If that’s all confusing, here’s a simpler explanation of the allegations in Sharma’s case from the Times of India on June 9:
He filed 11 H-1B visa petitions and each of them included false representations that the visa beneficiaries would be employed with a particular global financial institution. The petitions also included letters on official corporate letterhead with forged signatures of the executives.
Yes — Sharma’s case is big news on the subcontinent (it was also covered in The Economic Times (India), India Today, The Telegraph India, and other outlets) likely because H-1Bs are a very big deal in India.
While all of this purported chicanery was going on, according to the complaint, Sharma applied for naturalization with USCIS in April 2017, and on his application he denied he had ever: (1) committed a crime for which he was not convicted; (2) given U.S. government officials “any information or documentation that was false, fraudulent, or misleading”; and (3) lied to the feds “to gain entry or admission into the United States or to gain immigration benefits while in the United States”.
He also purportedly swore to those facts when he was interviewed by a USCIS officer in connection with his application in December 2017 — the same day Sharma’s naturalization application was approved, and that USCIS issued his Certificate of Naturalization.
The October 2019 Charge and April 2021 Conviction
According to the complaint, at least some of those facts have already been proven in a court of law, because as paragraph 35 in the complaint in U.S. v. Sharma explains:
On October 11, 2019, the United States filed a Criminal Information (“Information”) before the United States District Court for the District of New Jersey in which the United States charged Defendant with knowingly and intentionally making a false statement with respect to a material fact in a visa application, in violation of 18 U.S.C. § 1546(a), in connection with the above-mentioned events.
That same day, as per the complaint, Sharma pled guilty to those charges in a written plea agreement.
Notwithstanding the fact that a judge in the D. N.J. allegedly accepted that plea agreement that day, it wasn’t until 18 months later, in April 2021, that (according to DOJ) Sharma was found guilty in the D. N.J. of that offense and sentenced to 10 months of home detention and three years’ probation.
Naturalization
As USCIS explains: “Naturalization is the process by which U.S. citizenship is granted to a lawful permanent resident after meeting the requirements established by Congress in the Immigration and Nationality Act (INA).”
Green card holders must wait at least three years (if married to a U.S. citizen) or five years (if not) after receiving LPR status before applying for citizenship, unless they have “served honorably at any time in the U.S. armed forces for a period or periods totaling at least 1 year”, in which case they can apply at any time after that one-year period.
That said, minor LPR children of U.S. citizens automatically receive citizenship provided they are “in the legal and physical custody of” such parent, including at the point the parent naturalizes.
Denaturalization
While most naturalizations (like Sharma’s) are handled administratively by USCIS, orders of “revocation of naturalization” — better known as “denaturalization” or simply “denatz” — can only be issued by a federal judge.
There are generally only three situations in which a naturalized citizen can lose U.S. citizen status: the individual illegally procured naturalization; the individual concealed a material fact or made a willful misrepresentation at some point during the immigration and/or naturalization application process; or the newly minted citizen received naturalization through military service and received an “other than honorable” discharge before serving in uniform honorably for at least five years.
The Real Question
As USCIS explains:
A person’s naturalization can be revoked either by civil proceeding or pursuant to a criminal conviction. For civil revocation of naturalization, the United States Attorney’s Office [USAO] must file the revocation of naturalization actions in Federal District Court. For criminal revocation of naturalization, the U.S. Attorney’s Office files criminal charges in Federal District Court.
The government holds a high burden of proof when attempting to revoke a person’s naturalization. For civil revocation of naturalization, the burden of proof is clear, convincing, and unequivocal evidence which does not leave the issue in doubt. For criminal revocation of naturalization the burden of proof is the same as for every other criminal case, proof beyond a reasonable doubt. [Emphasis added.]
DOJ is seeking Sharma’s denaturalization under section 341(a) of the INA, which authorizes USAOs to sue naturalized citizens in district court:
for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation.
Taking the allegations in the complaint as true, it’s appropriate for DOJ to seek Sharma’s denaturalization under section 341(a), but the real question is why the department didn’t try to do so in October 2019, when it filed criminal charges that included the facts that now serve as the basis of his denaturalization, when it entered into a plea agreement with him, or when he was convicted and sentenced in April 2021.
It’s true that the government would have then borne a heavy burden in doing so.
As alluded to above, criminal denaturalization requires the government to prove beyond a reasonable doubt that the accused violated 18 U.S.C. § 1425 by knowingly obtaining or attempting to obtain “naturalization through fraud for him or herself or for another individual”.
But if the USAO (as alleged) had enough evidence to convince Sharma to sign an agreement pleading guilty to an 18 U.S.C. § 1546(a) violation for “knowingly and intentionally making a false statement with respect to a material fact in a visa application”, and had his naturalization application, it should have been relatively easy for the feds to obtain an 18 U.S.C. § 1425 criminal denaturalization conviction, as well.
Perhaps Sharma then was only willing to plead and face possible jail time for the fraud charge but not risk losing his citizenship, and so the USAO took what it could get to spare the costs of a lengthy prosecution, or maybe — just maybe — stripping naturalized fraudsters of citizenship was not a priority at that time (under Trump I for the charge and plea and Biden for the conviction).
According to the New York Times in April, just over 120 individuals were subject to denaturalization between 2017 and last year, an average of 15 per year, and while most naturalized citizens haven’t engaged in the sort of misconduct that would trigger a denatz proceeding, given how prevalent fraud is in our immigration system, that total seems half-hearted, at best.
It’s a positive development that the Justice Department now treats U.S. citizenship as “a privilege” that “must be earned honestly”, but that should have always been true. If it took 47 administrations to get to this point, I’m a tad dismayed — and a little concerned about what happens when 48 shows up.
Maybe I’m being picayune, and many facts in this case aren’t totally clear, but I’m not sure why, if what DOJ claims is true, the department is only now trying to strip Neeraj Sharma of his naturalized citizenship, and didn’t do so years ago when he purportedly pled guilty to immigration-related fraud. Better late than never, I guess.