The U.S. Supreme Court has ruled unanimously that naturalized American citizens cannot be stripped of citizenship if a lie or omission in the application process was irrelevant to the government’s decision to approve the naturalization application in the first place. The ruling in Maslenjak vs. U.S. will ultimately make it more difficult for the government to revoke citizenship, rejecting both the current and prior administrations’ position that all lies–even minor ones–can lead to loss of citizenship.

The case involved an ethnic Serb who lied about her husband’s military service during her refugee processing, obscuring his service in the Bosnian Serb Army. When later applying for naturalization, she falsely claimed that she had never given false or misleading information when seeking an immigration benefit. Divna Maslenjak arrived in the U.S. as a refugee in 2000 and became a citizen in 2007. In 2013, however, she admitted that her husband had indeed served in the Bosnian Serb Army, ultimately resulting in her conviction for making false statements on her application for naturalization, and eventually revocation of her U.S. citizenship for having been obtained “contrary to law.”

Maslenjak appealed, contending that, when the underlying offense in a citizenship revocation case is a false statement, the government must prove that the truth would have negatively influenced the original decision. The Sixth Circuit Court of Appeals disagreed, ruling that the government need not establish that Maslenjak’s misrepresentations were material to the original naturalization decision.

On June 22, the Supreme Court overturned the Sixth Circuit’s decision, focusing on the causal relationship between the violation and the acquisition of citizenship. The Court was particularly troubled that the government’s position results in a “mismatch between the requirements for naturalization on the one hand and those for denaturalization on the other” and the uncertainty this mismatch imposes on naturalized U.S. citizens.

The case will now return to the lower courts. Maslenjak’s U.S. citizenship could remain revoked, but only if the lower court determines that her false statements were in fact material to the approval of her naturalization application.

This ruling significantly raises the bar for revocation of citizenship. Requiring the government to show that it would have denied a citizenship application had it known the truth will make it more difficult for citizenship to be revoked. Even if the naturalized citizen’s lie had a real potential to affect the naturalization decision, the government will have to demonstrate not only that the lie could have impacted the decision, but that it actually would have made a difference. By disallowing revocation based on factors that might not have resulted in denial in the first instance, the Court provides naturalized U.S. citizens much greater security in their new status.

On October 28th, US Citizenship and Immigration Services (USCIS) issued a new policy, clarifying the definition of “mother” and “parent” under the Immigration and Nationality Act, to include a gestational mother who (a) gave birth to the child and (b) was the child’s legal mother at the time of birth under the law of the jurisdiction where the child was born.

In issuing this new policy, USCIS recognizes and provides a solution to a serious practical problem that has also been recognized and addressed by the Department of State, relating to the transmission of U.S. citizenship to children born abroad pursuant to assisted reproductive technology (ART)(also known as in vitro fertilization).  These births can occur in one of two ways:  either when a woman gives birth abroad after an implantation of an in-vitro embryo or after a birth abroad to a contractually engaged foreign surrogate.  This new policy is designed to ensure that in the former situation, the child born abroad will be eligible for any family-based immigration benefit that the mother is able to provide—including U.S. citizenship.

U.S. law requires a U.S. citizen parent to have a biological connection to a child in order to transmit U.S. citizenship to the child at birth.  In the context of ART, a father or mother must prove that they are the genetic parent of the child.  This can be proved by DNA testing after the baby is born.  The new policy expands the definition of “mother” to include a gestational and legal mother of the child at the time and place of the child’s birth (in addition to a genetic mother).

Until this policy was put in place, occasionally children born abroad pursuant to ART became stateless.  This is because some foreign fertility clinics have on occasion substituted alternate donor sperm and eggs for the U.S. parents’ genetic material, either purposefully when the U.S. citizen’s genetic material became non-viable, or accidentally, due to errors in the lab.  Tragically, sometimes the parents did not learn about these “switches” until they obtained DNA test results after the child’s birth.

In some jurisdictions, the  gestational mother who carried and gave birth to the child is not recognized as the parent of the child under the laws of that jurisdiction.  In this situation, such a child is eligible neither for a U.S. passport nor a passport of the country in which he or she was born, effectively rendering the child stateless or otherwise unable to leave the country of birth.  Today’s expanded definition of “mother” and “parent” is designed with the best interest of the child in mind, so such a child will not be a stateless person.

U.S. citizens who are considering a foreign surrogacy arrangement should carefully review the laws of the country in which the birth will take place to understand whether under local law the surrogate mother will be considered to be the legal mother of the child born through ART.  If the law of the place of birth gives a contracted surrogate any parental rights, it could raise questions about the child’s legal mother and in turn, the child’s citizenship.

Otherwise, mothers who meet the expanded definition but don’t have a genetic relationship with their child (because they became pregnant through an egg donor) will be able to petition for their child; will be eligible to have their child petition for them based on their relationship, and will be able to transmit U.S. citizenship, if they are U.S. citizens and if the other relevant requirements for transmission of U.S. citizenship requirements are met.