Why Criminal Prosecution Might Be The Least Of Ilhan Omar’s Legal Concerns
By: By Matthew Kolken
The Department of Justice has reportedly assigned an FBI special agent to work with Immigration and Customs and Enforcement and the Department of Education Inspector General Charge to investigate Rep. Ilhan Omar (D-Minn.) for alleged criminal violations relating to perjury, immigration fraud, marriage fraud, state and federal tax fraud, federal student loan fraud, and bigamy.
As an immigration lawyer, the very first question that came to mind when I read these reports was what immigration consequences, if any, could attach in the event that any of the above allegations are proven beyond a reasonable doubt in a court of law. My analysis, unfortunately, has resulted in more unanswerable questions than definitive answers.
My analysis started with the fact that it is widely known Omar was born in Somalia, and immigrated to the United States as a Somalian refugee. At some point after her admission to the country, she obtained U.S. citizenship. The Associated Press reported on November 5, 2009 , that Omar fled Somalia to a refugee camp in Kenya with her family in 1991. She ultimately immigrated to the United States as a refugee in 1995.
If this report is correct, the analysis is fairly straightforward. Generally speaking, U.S. immigration law permits refugees to apply for permanent residence, commonly known as a “green card,” one-year after arrival. Five years after holding a green card, refugees may then apply to become a citizen through a process called naturalization.
Naturalization applicants must show they meet residency requirements, and have good moral character. It was reported that Omar became a citizen in 2000, five years after her arrival, at the age of 17.
This last detail is important, and is where things start to get murky. If Omar became a U.S. citizen at the age of 17, she must have obtained it through automatic acquisition after the naturalization of at least one of her parents. Omar would not have been able to apply for citizenship on her own because individuals are ineligible to apply for naturalization until age 18.
Here is where it gets really complicated. The requirements for automatic acquisition have changed several times throughout the last century. The marital status of Omar’s parents would determine whether she could have acquired citizenship. I have no details about their marital status to be able to determine if these legal requirements were fulfilled.
However, if Omar did not have to apply for naturalization, it could eliminate one possible crime that she could be charged with: knowingly giving false information in furtherance of an application for citizenship. A conviction for this crime would lead to her denaturalization, resulting in the loss of citizenship, and the institution of removal proceedings to deport her.
But the analysis doesn’t stop there. For Omar to have automatically acquired citizenship, she must also have been lawfully admitted to the United States for permanent residence, and there are reports questioning the legality of her admission as a refugee.
David Steinberg has covered the Omar saga for several years and has openly questioned whether she is who she says she is. Steinberg has alleged that Omar assumed her name from an unrelated family that was being granted refugee status. Although I have no way to independently assess the veracity of this report, there is circumstantial evidence that this type of immigration fraud was rampant in the circumstances under which Omar was admitted to the United States.
Specifically, in 2009 the Obama administration assessed the viability of re-employing a Bush-era pilot program that unearthed widespread immigration fraud. It found that as many as 87 percent of applications claiming familial relationship were fraudulent. If the reports are ultimately found true, the immigration consequences would be severe, including loss of citizenship and the institution of removal proceedings. Moreover, there may be no defenses to removal in an immigration court setting to stop her deportation.
Assuming arguendo that it is determined that Omar is not a citizen of the United States, and if she is convicted for any of the crimes she is allegedly being investigated for, there would be bars from most forms of relief from removal. Most crimes relating to fraud constitute a crime involving moral turpitude, which would preclude Omar from applying for cancellation of removal as an immigrant who holds no status in the United States.
If she is convicted for tax evasion where loss to the government exceeds $10,000, she will be removable for having an aggravated felony conviction, which also precludes her from applying for asylum. If she is convicted for marriage fraud, she would be ineligible to be sponsored if she were to marry a U.S. citizen. Needless to say, the worst-case scenario is very bleak.
That said, I have more questions than answers, but my preliminary analysis is that Omar is in need of competent immigration counsel to ensure that there is no threat of her losing her citizenship, or, worse, the prospect of deportation back to a country she fled as a child.