Every once in a while, I like to try to look behind the lines at a current court decision to see where it will take us, like here. I would like to look behind the curtain at Maslenjak v. United States. The case came out last week, a week when immigration lawyers were on pins and needles waiting for a decision in the Supreme Court’s review of the Ninth Circuit’s Rodriguez v. Robbins, which became Jennings v. Rodriguez at the Supreme Court, the mandatory detention case. The name change came because in the initial litigation, Alejandro Rodriguez, the plaintiff/petitioner, sued the government, the first respondent being Timothy Robbins, the then Los Angeles Immigration and Customs Enforcement Field Office Director. Hence, the name order, Plaintiff v. Respondent, Rodriguez v. Robbins. Mr. Rodriguez won his case and the government appealed. The Los Angeles Immigration and Customs Enforcement Field Office Director changed from Mr. Robbins to David Jennings. As the name order is Appellant v. Appellee, the case became Jennings v. Rodriguez. Instead of a decision, the Supreme Court restored the case to its calendar for re-argument. There were other cases. A big splash was the Supreme Court’s decision to review President Trump’s second executive order and to partially lift the stay in the case, Trump. v. International Refugee Assistance Project. There was also Jae Lee v. United States, a case about ineffective assistance of a criminal defense attorney and its effect on removability. We also got Maslenjak to chew on.
Maslenjak is a criminal case. As a criminal defendant, Ms. Divna Maslenak was charged with violating 18 USC 1425(a), which states:
Whoever knowingly procures or attempts to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or of citizenship … [S]hall be fined under this title or imprisoned not more than 25 years (if the offense was committed to facilitate an act of international terrorism (as defined in section 2331 of this title)), 20 years (if the offense was committed to facilitate a drug trafficking crime (as defined in section 929(a) of this title)), 10 years (in the case of the first or second such offense, if the offense was not committed to facilitate such an act of international terrorism or a drug trafficking crime), or 15 years (in the case of any other offense), or both.
As important as the harsh potential punishment is the collateral result of denaturalization, as stated in 8 U. S. C. §1451(e), which states:
When a person shall be convicted under section 1425 of title 18 of knowingly procuring naturalization in violation of law, the court in which such conviction is had shall thereupon revoke, set aside, and declare void the final order admitting such person to citizenship, and shall declare the certificate of naturalization of such person to be canceled.
The charge is that Ms. Maslenjak obtained citizenship contrary to law. The law she broke was 18 U. S. C. §1015(a), which states:
Whoever knowingly makes any false statement under oath, in any case, proceeding, or matter relating to, or under, or by virtue of any law of the United States relating to naturalization, citizenship, or registry of aliens … [S]hall be fined under this title or imprisoned not more than five years, or both. Subsection (f) does not apply to an alien if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making the false statement or claim that he or she was a citizen of the United States.
This is how she lied, as the Supreme Court explained:
Divna Maslenjak is an ethnic Serb who resided in Bosnia during the 1990’s, when a civil war divided the new country. In 1998, she and her family sought refugee status in the United States. Interviewed under oath, Maslenjak explained that the family feared persecution from both sides of the national rift: Muslims would mistreat them because of their ethnicity, and Serbs would abuse them because Maslenjak’s husband had evaded service in the Bosnian Serb Army by absconding to Serbia. Persuaded of the Maslenjaks’ plight, American officials granted them refugee status. Years later, Maslenjak applied for U. S. citizenship. In the application process, she she swore that she had never given false information to a government official while applying for an immigration benefit or lied to an official to gain entry into the United States. She was naturalized as a United States citizen. But it soon emerged that her professions of honesty were false: Maslenjak had known all along that her husband spent the war years not secreted in Serbia, but serving as an officer in the Bosnian Serb Army. And worse, he had served in a brigade that participated in the Srebrenica massacre—a slaughter of some 8,000 Bosnian Muslim civilians.
Busted, right? According to the Supreme Court, no, for two main reasons. The criminal court and the 6th Circuit Court of Appeals held that all the government had to prove for a conviction was that Ms. Maslenjak made a false statement while applying for citizenship to be convicted. It did not have to prove that the misrepresentation was material, i.e., mattered as to whether she could become a citizen. In other words, any lie during her naturalization interview could result in subsequent conviction and denaturalization. The Supreme Court pointed out some potential misrepresentations that could, under a non-materiality interpretation of the statute, result in denaturalization, such as neglecting to mention belonging to an online support group when asked about belonging to organizations or not mentioning a speeding ticket when asked about past arrests, convictions, or citations. At oral argument more whimsical examples were raised, like Justice Kagan’s wondering if saying you weigh 150 pounds when you actually weigh 170 would result in denaturalization. Looking outside of lying as being something “contrary to law,” the question of bringing a pocket knife into the interview (a person, the court presumes, cannot bring a pocketknife into a federal building) was raised as an act contrary to law that could lead to a conviction and denaturalization. The Supreme Court concluded that to avoid these absurd results, the unlawful act had to be not just incident to the naturalization process, but material to the procurement of naturalization. As speeding, weighing more than you say, or possessing a knife are not material to becoming (procuring) or not becoming a citizen, then such immaterial illegality cannot result in later de-naturalization. In addition, the court relied on its holding related to misrepresentation and its resulting in a lack of good moral character, Kungys v. United States, necessary to demonstrate eligibility for naturalization. That case indicated that the misrepresentation must be material or at least potentially lead to something material. The Court reasoned that if an immaterial misrepresentation does not prevent one from naturalizing, then it should not result in denaturalizing. It is absurd that a person must be naturalized despite a misrepresentation because it is not material, but the next day or week or year or decade, could be denaturalized for the same non-material misrepresentation.
So where does this leave Ms. Maslenjak? Her case will go back to trial and the government will have to show that her overlooking that her husband serving in a brigade that participated in the Srebrenica massacre and instead stating that he faced persecution from Bosnian Serbs for avoiding the military were not material misrepresentations in her asylum claim. The argument, laid out briefly at oral argument (Pages 8-10) was that her fear of persecution in Bosnia was not based on her husband’s military service, but threats to her as a Bosnian Serb in Bosnia. She was subjected to death threats and stones were thrown at her home. They lived in a majority Muslim area, and they had to flee Bosnia. Would this have amounted to persecution? Could she prove that the stones were thrown because she was a Bosnian Serb? Could she have relocated to a less Muslim part of Bosnia? Were her lies material to the illegal acts of suborning perjury or harboring a war criminal and would this have barred her asylum, her later adjustment of status to permanent residence, or her naturalization? These questions will be part of her criminal case. Will she prevail? Hard to say, but I wouldn’t give her a long-term lease.
Curious about the case is one other thing. The Supreme Court seems confident that a person cannot be denied naturalization for lying about a support group, or a speeding ticket, or 20 pounds. But, I have seen USCIS do it. A regulation, 8 CFR § 316.10(b)(2)(vi), states:
An applicant shall be found to lack good moral character if during the statutory period the applicant has given false testimony to obtain any benefit from the Act, if the testimony was made under oath or affirmation and with an intent to obtain an immigration benefit; this prohibition applies regardless of whether the information provided in the false testimony was material, in the sense that if given truthfully it would have rendered ineligible for benefits either the applicant or the person on whose behalf the applicant sought the benefit.
If a person believed his naturalization could be jeopardized by divulging receiving a speeding ticket, or divulging sneaking a knife into the federal building, or admitting to putting on weight fast, the regulation sure seems to state that the lie could be a basis to deny naturalization, contrary to Maslenjak’s assertions to the contrary. As noted, I have seen it. I have written about how USCIS delays and denies cases under its CARRP program. Perhaps Maslenjak will put an end to such shenanigans – or will all that speeding ticket, pocketknife, and Justice Kagan’s 20 pound stuff ultimately be considered dicta? Litigators, start your engines. Posted July 2, 2017.