Lies, Damn Lies, and Prosecutorial Abuse
How easy should it be for the state to strip an individual of their citizenship? For instance, is it fair or reasonable that a naturalized citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement? Maslenjak v United States, a case currently being considered by the United States Supreme Court, raises such questions.
Before discussing the case, it’s worth noting the value placed on citizenship and why it should be difficult to strip someone of citizenship – whether through criminal or civil proceedings – once it has been acquired. As the Supreme Court stated in Federenko, “the right to acquire American citizenship is a precious one, and that, once citizenship has been acquired, its loss can have severe and unsettling consequences.” Among its various benefits, citizenship allows individuals to fully partake in the political life of the country or locality through voting and/or standing for office. The government cannot deport a citizen for committing even a serious crime – a fate often reserved for non-citizens who have committed such crimes. States cannot just banish citizens as punishment for crimes.
As important as citizenship is often considered, it is not irrevocable for those who acquire it through naturalization (as opposed, for example, to those who acquire it by birth on American soil). Federal law provides that naturalized citizens may face criminal liability for certain conduct they have engaged in when acquiring citizenship with de-naturalization as a consequence of a guilty verdict. 18 USC §1425(a) provides that a person is criminally liable if s/he “knowingly procures or attempts to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or of citizenship.” Should this include the providing of false statements, even where they had or would have had no material impact in the procurement of citizenship?
In addition to the punishment(s) one faces for being convicted of this crime, the consequences also include stripping an individual of their citizenship through de-naturalization. Under 8 USC §1451(e), 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. Jurisdiction is conferred on the courts having jurisdiction of the trial of such offense to make such adjudication.” Notably, the mandatory nature of the word “shall” indicates that de-naturalization does not permit any measure of discretion.
Returning to the case, the facts in Maslenjak are relatively straightforward. Divna Maslenjak arrived in the United States in 2000 and sought refugee status arguing that she and her family had a well-founded fear of persecution in her native Bosnia for reasons connected to her husband’s alleged refusal to be conscripted in the Serbian militia (this turned out to be a fabrication) as well as their ethnicity as Serbs living in a Muslim-dominated area of Bosnia. The family was granted refugee status (though it is unclear on which basis) and subsequently Maslenjak applied for naturalization after being resident in the United States for a set number of years mandated by statute. She acquired citizenship. However, it turns out that rather than evading conscription, her husband was in fact an officer in a unit of the Serbian militia forces implicated in war crimes. Based on representations made during the immigration process, she was charged under §1425(a) and found guilty by a jury resulting in revocation of naturalization under §1451(e).
On appeal before the Federal Court of Appeals for the 6th Circuit, Maslenjak argued that the trial judge failed to properly instruct the jury that her false statements needed to be “material” (consistent with federal case law in other federal circuits) in order to convict her of procuring naturalization contrary to law. Contrary to the case law in other circuits, a three-judge panel of the 6th Circuit concluded that a conviction under §1425(a) did not require a finding that false statements made by a defendant needed to be “material”. Accordingly, even if Maslenjak made immaterial statements that would not have positively impacted her citizenship application, she could still be held criminally liable, and, if convicted, stripped of her citizenship. This interpretation contradicted well-established case law in other circuits (see e.g. US v Puerta, 982 F.2d 1297 (9th Cir. 1992)) where courts read into §1425(a) a requirement that misstatements be material given the gravity of the ultimate consequence of a finding of guilt (i.e. revocation of citizenship).
The Supreme Court heard oral arguments in the case on April 26th of this year (a recording with visual effects is available here). As always, questions from the justices (except from the perennially silent Clarence Thomas) flew at the lawyers fast and furiously. I won’t summarize in detail every facet of the oral arguments before the Court. However some of the salient points are worth discussing.
One of the points raised when questioning Maslenjak’s counsel, Christopher Landau, was the viability of reading in a “materiality” standard in connection with making false statements in procuring naturalization. The language of §§1425(a) and 1451(e) clearly omit the word “material”. Meanwhile, under §1451(a), Congress specifically inserted the word “material” in connection with a civil de-naturalization process where naturalization was illegally procured or procured by concealment of a material fact or by willful misrepresentation. The fact that Congress left out such language of materiality in §§1425(a) and 1451(e) while inserting it in §1451(a) suggested that it did not intend for such standard to apply in the former sections. In addition, it was pointed out to Landau that another federal criminal provision, 18 USC §1015, makes it a crime to knowingly make “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.” Noticeably, Congress did not require any materiality standard here either. However, the consequence of violating this provision (§1015) does not lead to automatic de-naturalization on conviction.
While the Court’s questioning of Landau suggested some doubts about the inclusion of a materiality standard, it nevertheless demonstrated considerable concerns about stripping a naturalized individual of their citizenship based on their procuring of naturalization through the telling of immaterial false information or concealment of immaterial information. In this regard, several justices directed various hypotheticals to the assistant Solicitor General Robert Parker. Chief Justice Roberts began this questioning by referring to question 22 of part 12 on the application form for naturalization (N-400) which states: “Have you EVER committed, assisted in committing, or attempted to commit, a crime or offense for which you were NOT arrested” (emphasis in original). The Chief Justice’s concern was with the breadth of this question as it relates to “offenses” (the exchange can be found here and the audio begins at 00:25:37 and ends around 00:28:32). Though Parker tried to stress that there are some ambiguities surrounding the meaning of crimes and offences, the Chief Justice pointed to Black’s Law Dictionary which defines an offense as “a violation of the law, a crime, often a minor one.” The Chief Justice asked whether, hypothetically, having knowingly exceeded the speed limit by 5 miles an hour and deliberately omitted that fact on such a form, federal authorities could knock on his door and attempt to revoke his citizenship. When Parker affirmed that the government’s position would indeed be that individuals are obliged to disclose such minor offenses, the Chief Justice responded as follows: “Oh, come on. You’re saying that on this form, you expect everyone to list every time in which they drove over the speed limit…except when they were arrested.” Parker affirmed that this was the government’s expectation. Justices Sotomayor and Breyer followed up with similar questions that illuminated concerns about the breadth of the questions that might be posed and the potential perils of deliberately answering incorrectly.
The Chief Justice later stated near the close of oral arguments that the larger danger of potential de-naturalization for failing to answer such broad questions was, namely, prosecutorial abuse. He asserted (at 0:52:52):
"If you take the position that refusing to -- not answering about the speeding ticket or the nickname [at 0:28:32 to 0:30:11] is enough to subject that person to denaturalization, the government will have the opportunity to denaturalize anyone they want, because everybody is going to have a situation where they didn't put in something like that -- or at least most people. And then the government can decide, we are going to denaturalize you for other reasons than what might appear on your naturalization form, or we're not. And that to me is – is troublesome to give that extraordinary power, which, essentially, is unlimited power, at least in most cases, to the government. That strikes me as a serious problem."
Though it is hard to predict how the Court may ultimately decide based purely on comments made during oral arguments, the Chief Justice’s observations nevertheless identify a compelling concern. The way to limit such immense power in this case is to place restrictions through a reasonable interpretation of the language in the statute. The language of the provision (“knowingly procures or attempts to procure, contrary to law, the naturalization of any person”) suggests some nexus between procuring naturalization contrary to law and the naturalization of any person. Justice Kagan, during a lengthy exchange with Parker, posited the following rhetorical question: “how do you use that phrase in a statute and not mean that there has to be a relationship between the illegal acts and the procurement of naturalization?” Indeed, it may not be a “materiality” standard if Congress has used that term elsewhere and decided not to adopt it in the case of §1425(a). Yet this hardly means that no standard was contemplated. The context of denaturalization (a rather significant action) and the criminal nature of the statute suggests that it has to be something more substantial than an immaterial statement that procures naturalization. As Justice Ginsburg asked (at 0:39:13 to 43:49): “how can an immaterial statement procure naturalization?”
Assuming the Court ultimately rejects both the defendant’s position of a materiality standard and the government’s argument that that it need only prove that the person knowingly committed the wrongful act irrespective of the fact it was immaterial to the decision-making process, we are left with options somewhere in the middle. Justice Breyer proffered some during oral argument to Parker (0:41:40 to 0:43:50) which suggested that in order to succeed the government should be required to prove that the falsehood advanced by the defendant had a tendency or possibility to influence the decision maker. The definition of materiality, which the Court had adopted in an earlier decision (Kungys), was that the statement in question had a natural tendency to produce the conclusion that the applicant was qualified for citizenship.
The serious consequences that transpire as a result of a conviction arising from §1425(a) include not only a potential prison sentence, but automatic de-naturalization under §1451(e). Coupled with language in §1425(a), which is highly and logically indicative of a nexus between the deliberate (non-)disclosure of information and procuring naturalization, a requirement that the government prove a nexus is compelling. Building on the articulation that Justice Breyer expressed during oral arguments, perhaps a more suitable standard might be one where the statement was likely or more probable (rather than had a tendency or possibility) to have influenced the decision-maker. The use of the word “influence” rather than “produce”, which the Court adopted in Kungys, does not require the Government to show that the statement(s) had a tendency to “produce”, as opposed to “influence”. Language which requires some nexus on this basis falls short of the standard for materiality but requires more than what the 6th Circuit would require – which is essentially nothing in terms of a nexus between the act that is contrary to law and procuring nationalization.
While oral arguments were largely focused on matters of statutory interpretation and the broader implications of the government’s position, some discussion of the particular facts from the case did arise. It is worth noting that a few Justices were openly skeptical as to whether Maslenjak would have succeeded at trial even under a materiality standard articulated by her counsel. Justice Ginsburg appeared to suggest that the failure to instruct the jury on the issue of materiality may well have been a harmless error since even under a materiality standard, a well instructed jury would not have found in her favor. Justice Alito expressed doubt that a well-instructed jury would conclude that failing to include information that your husband committed atrocities would be an immaterial consideration. Landau conceded that this might be a significant challenge on remand, but nevertheless, he argued that the jury should decide whether the statement was immaterial. Furthermore, there was some doubt as to whether refugee status was secured based on the false statement regarding the evasion of conscription or based on the attacks suffered by the family on account of their Serb identity.
The Court’s ultimate interpretation of §1425 may have serious ramifications going forward for any number of naturalized citizens. The ability of the government to abuse the immense power that Chief Justice Roberts identified needs to be checked and bounded.
8 USC § 1101(f)(6)
(f) For the purposes of this chapter—
No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was—
(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;
8 USC § 1451(a)
(a) Concealment of material evidence; refusal to testify
It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any district court of the United States in the judicial district in which the naturalized citizen may reside at the time of bringing suit, 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, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively: Provided, That refusal on the part of a naturalized citizen within a period of ten years following his naturalization to testify as a witness in any proceeding before a congressional committee concerning his subversive activities, in a case where such person has been convicted of contempt for such refusal, shall be held to constitute a ground for revocation of such person’s naturalization under this subsection as having been procured by concealment of a material fact or by willful misrepresentation. If the naturalized citizen does not reside in any judicial district in the United States at the time of bringing such suit, the proceedings may be instituted in the United States District Court for the District of Columbia or in the United States district court in the judicial district in which such person last had his residence.
18 USC § 1015
(a) 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;