Part I of this series argued that the current U.S. administration’s mass-denaturalization campaign is highly susceptible to error and abuse and that these concerns compound in civil denaturalization cases. In this second part, I argue that the unavailability of public defense counsel in such civil cases creates serious human rights concerns and renders the risk of error and abuse too high to pass muster under due process standards. In Part III, I conclude that any governmental interest in denying state-appointed counsel to civil denaturalization respondents is outweighed by these risks.

Under the Fifth Amendment, naturalized citizens, who are on “equal footing” with birthright citizens, cannot be deprived of life, liberty, or property without due process. Due process, however, is not fulfilled by simply providing citizens with any process. To survive constitutional scrutiny, the Supreme Court has emphasized that a civil process must be “appropriate to the nature of the case”, satisfying the Constitution’s “deep-rooted demands of fair play”.

In Mathews (1976), the Court clarified that “appropriate[ness]” is assessed by weighing (1) the private interests at stake and (2) the risk of those interests being erroneously deprived under existing procedures against (3) the governmental interests in avoiding a change to procedures. Under this test, I argue that the unavailability of appointed counsel to civil denaturalization respondents fails due process standards. To this end, this Part focuses on the test’s first two elements.

Before proceeding, however, it is worth noting that the Court has never affirmatively foreclosed the possibility of a right to counsel for civil denaturalization respondents. To the contrary, the Court in Lassiter (1981), the case that “sounded a death knell” for a general civil right to counsel, admitted that civil respondents may have a right to counsel if, upon losing, their case “potentially” results in loss of physical liberty. As discussed below, denaturalization threatens loss of physical liberty and much worse, meaning it squarely falls within Lassiter’s exception.

Turning to Mathews’ first element: the private interests threatened by denaturalization are enormous. As Ng Fung Ho (1922) explained, citizenship removal entails loss of liberty, property, and “all that makes life worth living”. Once denaturalized, individuals risk losing their livelihood, home, public benefits, and ability to be among their family and community. More fundamentally, it severs what Sir Edward Coke described in 1608 as the “bond and obligation” between state and citizen: it places individuals beyond governmental concern, stripping them of status.

This is especially worrisome for refugees and individuals who voluntarily or automatically surrender their former citizenship upon naturalization, as denaturalization may render them stateless and/or result in refoulement. These outcomes violate international law in their own right (see e.g. 1961 Statelessness Convention, art. 8(1); Torture Convention, art. 3(1)); and, with no government protection, it leaves individuals vulnerable to other human rights violations, including restricted movement, arbitrary detention, trafficking, torture, and unlawful killing (see e.g. ICCPR, arts. 6-12).

There is also a high risk of these deprivations occurring erroneously. Mathews established that due process standards are formulated by examining the “risk of error inherent” in a process “as applied to the generality of case”. Part I argued that error and abuse are inherent in mass-status-stripping campaigns and that the presence of bare judicial process is insufficient to safeguard against these harms generalizing. It further argued that the civil denaturalization process contains several embedded deficiencies that amplify these risks.

Without representation, the risks become “simply too high”. In Powell (1932), the Court noted that the right to be heard in certain cases is “of little avail” if it does not encompass a right to be heard through counsel. Civil denaturalization is one of those cases. The ordinary, unrepresented respondent is unlikely to know to raise a First Amendment defense when faced with an overbroad statute, how to adduce favorable evidence at trial, or to check that the Government has met its evidentiary burden. This already denies respondents a meaningful hearing. Worse yet, if improperly denaturalized and deported, they may not have anyone duty-bound or able to appeal, thus potentially sealing their fate.

Due process does not require citizenship-removal litigants to be able to present every available defense; however, without representation, they may not be able to raise any adequate defense. Relatedly, having counsel may not guarantee a fair outcome, but it certainly lowers the probability of undue, permanent status-stripping.

In Part III, I complete my examination of the civil denaturalization process under Mathews’ final element: I argue that the private interests and risks outweigh any governmental interest in denying state-appointed counsel.