In the

Supreme Court of the United States

DIVNA MASLENJAK, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

BRIEF FOR PETITIONER

 

QUESTION PRESENTED

Whether the Sixth Circuit erred by holding that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.

 

INTRODUCTION

This Court has long recognized that American citizenship is a "precious right," and that "it would be difficult to exaggerate its value and importance." While many Americans are blessed with that right by virtue of their birth, many others have obtained it by virtue of naturalization. Throughout our history, naturalized Americans have enriched all areas of our national life, including business, government, law, science, sports, and the arts. A naturalized citizen is as much a citizen as any other: "citizenship obtained through naturalization is not a second-class citizenship."

Although the Constitution expressly authorizes Congress "to establish a uniform Rule of Naturalization," U.S. Const. art. I, ¤ 8, cl. 4, it contains no corresponding general authority to strip Americans-either natural-born or naturalized-of their citizenship. That is no oversight: "In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship." Thus, as a general matter, the only way American citizenship can be lost is "by the voluntary renunciation or abandonment by the citizen himself." There is but one exception to that rule: "naturalization unlawfully procured can be set aside."

And even that exception has been narrowly circumscribed. Because denaturalization seeks to deprive an American citizen "of the priceless benefits that derive from that status, naturalization decrees are not lightly to be set aside". This Court "presumes that Congress was motivated" by "a desire to secure the blessings of liberty ... to all those upon whom the right of American citizenship has been conferred by statute, as well as to the native ­born." Thus, in a denaturalization proceeding, "the facts and the law should be construed as far as it is reasonably possible in favor of the citizen."

That did not happen here. The Sixth Circuit held below that a naturalized American can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement. But nothing in the relevant statute authorizes, much less compels, that result. To the contrary, the statute makes it a crime to "knowingly procured" naturalization "contrary to law." The Sixth Circuit never explained how someone could "procure" naturalization based on an immaterial false statement. As a general matter, after all, a false statement is material only "if it has a natural tendency to influence, or was capable of influencing, the decision of the decision making body to which it is addressed." If a statement has no tendency or capability to influence a naturalization decision, by definition it cannot "procure" that decision. That simple textual point is the beginning and the end of this case.

The Sixth Circuit concluded otherwise by observing that "the term 'material' is found nowhere in ¤ 1425(a)." But that observation, while true, misses the point. The statute does use the words "procure ... contrary to law," and those words, naturally read, require a causal link ­"procurement"-between the underlying violation of law and the naturalization decision. The district court here dispensed with that causal link by instructing the jury that it could convict petitioner by finding that she (1) "obtained United States citizenship," and (2) "acted in violation of at least one law governing naturalization." In other words, the jury was not required to find that the underlying violation of law procured the naturalization. By upholding petitioner's conviction under these instructions, the Sixth Circuit essentially read the unlawful procurement element out of the unlawful procurement statute.

Although the Sixth Circuit's erroneous interpretation of Section 1425(a) provides reason enough to reverse the judgment, the court committed a second-quite similar-error in interpreting 18 U.S.C. ¤ 1015(a), one of the predicate offenses alleged here. According to the Sixth Circuit, that crime also must be interpreted to encompass immaterial false statements because it does not include the word "material." But that simplistic interpretation fails to take proper account of "the improbability that Congress intended to impose substantial criminal penalties on relatively trivial or innocent conduct." A proper textualist approach requires analysis and understanding of the background legal norms that inform the meaning of statutory text. That error too warrants reversal of the judgment below.

As a result of her conviction in this case, petitioner -a naturalized American originally from Bosnia- was stripped of her citizenship and deported from this country. But this case is not just about her citizenship rights, but about the citizenship rights of all naturalized Americans. Precisely because those rights are so precious, there is no basis to conclude that Congress did (or constitutionally could) provide for them to be lost as the result of an immaterial false statement. Accordingly, this Court should reverse the judgment.

STATEMENT OF THE CASE

A. Factual Background

Petitioner Divna Maslenjak, an ethnic Serb, was born and raised in a predominantly Serb village in modern-day Bosnia. After the collapse of the former Yugoslavia in the early 1990s, clashes broke out between Bosnia's majority Muslim population and its minority Serbs, and members of each group reported persecution by the other.

In April 1998, Mrs. Maslenjak, along with her husband and their two children, met in Belgrade, Yugoslavia (now Serbia), with an American immigration official designated to assist refugees from Bosnia's ethnic strife. As that official testified below, the refugees she interviewed in that position "were pretty much always ethnic Serbs that had been living in Bosnia and they were ... basically forced out of Bosnia, from ... their place they lived because of ethnic cleansing."

And that was true for Mrs. Maslenjak: as the immigration official testified, the basis for Mrs. Maslenjak's claim of refugee status for her family was that "because they were ethnic Serbs, they had been forced to flee their home-the place they lived in Bosnia, and that they were not able to go back because they feared, basically, for their life, which was plausible." Mrs. Maslenjak's refugee application based on "fear that her family would be mistreated on account of their ethnicity if they returned back to their home.  Mrs. Maslenjak and her family "are registered refugees in Yugoslavia," who "see no prospects for local integration on account of their refugee status," and "fear maltreatment on account of their ethnicity if they return to their home village". In addition, the immigration official testified that Mrs. Maslenjak stated that, after a temporary stay in Yugoslavia, she and her children "had gone back to Bosnia, but a different part that was Serb held; but the husband did not return, because he was afraid that he would be forced to serve in the Bosnian Serb military if he went back to that part of Bosnia." The latter statement was untrue: Mrs. Maslenjak and her children in fact had lived with Mr. Maslenjak in Bosnia during that period, and he had served in the Bosnian Serb military.

Mrs. Maslenjak and her family were granted refugee status in 1999 and immigrated to the United States in 2000. They settled near Akron, Ohio, where two of Mrs. Maslenjak's sisters, who were also refugees, were living.

In December 2006, Mrs. Maslenjak applied for naturalization. As part of the application process, she was asked numerous questions, including whether she had "ever given false or misleading information to any U.S. government official while applying for any immigration benefit."  A separate question asked whether she had ever "lied to any U.S. government official to gain entry or admission into the United States." Mrs. Maslenjak answered both questions in the negative. She obtained United States citizenship on August 3, 2007.

Shortly before Mrs. Maslenjak applied for citizenship, her husband was arrested on charges of making a false statement on government documentation. Specifically, the Government charged him with failing to report on his immigration application that he had served in the Bosnian Serb military during the Bosnian civil war. He was convicted in 2007 and, because his conviction subjected him to removal, taken into custody by U.S. Immigration and Customs Enforcement.

In an effort to avoid her husband's removal, Mrs. Maslenjak testified at her husband's asylum hearing in April 2009.   In that testimony, Mrs. Maslenjak admitted that her husband had served in the Bosnian Serb military during the Bosnian civil war, that the family had lived together in Bosnia (although not in their home village) from 1992 to 1997, and that she had misrepresented these facts during her 1998 interview for refugee status.

B. Proceedings Below

In March 2013, a grand jury indicted Mrs. Maslenjak for violating 18 U.S.C. ¤ 1425(a), which makes it a crime to "knowingly procure" naturalization "contrary to lawÓ.  As relevant here, the indictment charged Mrs. Maslenjak with making "material false statements" in response to Questions 23 and 24 of her 2006 naturalization application, on the theory that she "then well knew that she had lied to government officials when applying for her refugee status" in 1998.

A major issue at trial was the impact, if any, of Mrs. Maslenjak's 1998 statements about her husband's military service on her application for refugee status. The Government tried to show that Mrs. Maslenjak, who acted as the Primary Applicant for her family, had been granted refugee status based on those statements. Mrs. Maslenjak, in contrast, tried to show that she had been granted refugee status based on fear of ethnic persecution by Muslims in Bosnia.

Although the indictment charged Mrs. Maslenjak with making "material false statements," and the Government "adduced proof at trial relevant to the materiality element," the Government took the position at trial that proof of a material false statement was not necessary for a conviction under either ¤ 1425(a) or 18 U.S.C. ¤ 1015(a), which proscribes "making any false statement under oath" in a naturalization proceeding and served as a predicate offense for the ¤ 1425(a) charge in this case, Over Mrs. Maslenjak's objection, the district court sided with the Government, and instructed the jury:

Count 1 of the indictment charges the defendant with violating Section 1425(a) of Title 18 of the United States Code.

In order to prove defendant guilty of naturalization fraud, the government must prove each of the following elements beyond a reasonable doubt.

First, that defendant procured naturalization;

Second, defendant procured her naturalization contrary to law; and

Third, defendant acted knowingly.

Element Number 1 Procured Naturalization. The government must prove beyond a reasonable doubt that defendant procured naturalization. To establish this element, the government must prove that defendant obtained United States citizenship.

Element Number 2: Contrary to Law. In order to prove that defendant acted "contrary to law," the government must prove that defendant acted in violation of at least one law governing naturalization.

Element Number 3: Knowingly. To act knowingly means to act intentionally and voluntarily, and not because of ignorance, mistake, accident or carelessness.

With respect to Element Number 2 ("contrary to law"), the court explained that a predicate offense was 18 U.S.C. ¤ 1015(a), which "prohibits an applicant from knowingly making any false statement under oath, relating to naturalization." And the court specifically instructed the jury that, in order to convict, it did not have to find that any such false statement was material:

A false statement contained in an immigration or naturalization document does not have to be material in order for the defendant to have violated the law in this case. Even if you find that a false statement did not influence the decision to approve the defendant's naturalization, the government need only prove that one of the defendant's statements was false.

During deliberations, the jury sent the court the following note:

At start of trial jury was told that Divna applied for refugee status due to a fear of persecution due to her husband not serving in the military during the war.

Divna was applying for refugee status due to fear of persecution due to her ethnicity.

What was her refugee status granted on? Fear of not serving?

Or fear of ethnic backlash?

The court responded by telling the Jury:

You must make your decision based only on the evidence you saw and heard here in court. .. . You may also rely on your collective memories. ... You have now what you need to decide the case.

The jury returned a guilty verdict both on Count 1 (violation of ¤ 1425(a)), which results in automatic loss of citizenship, and Count 2 (violation of 18 U.S.C. ¤ 1423), which does not result in loss of citizenship. The jury's verdict on Count 1 was a general one, and did not specify which of the two charged predicate offenses Mrs. Maslenjak had committed. Shortly thereafter, the district court entered an order revoking Mrs. Maslenjak's citizenship under 8 U.S.C. ¤ 1451(e) as a mandatory and automatic consequence of her conviction under Section 1425(a).

Mrs. Maslenjak appealed her conviction and the revocation of her citizenship, but the Sixth Circuit affirmed. As relevant here, the court held, "based on the plain language of the statute as well as the overall statutory scheme for denaturalization, that "proof of a material false statement is not required to sustain a conviction under 18 U.S.C. ¤ 1425(a),"  or a predicate offense at issue here, 18 U.S.C. ¤ 1015(a).

With respect to the statutory text, the court noted that "the term 'material' is found nowhere in ¤ 1425(a)." "Without statutory support for an element of materiality," the court declared, "we are hard-pressed to conclude that materiality is an element of the offense under 18 U.S.C. ¤ 1425(a)." Similarly, "a material false statement is not an element of the crime under ¤ 1015(a)."

And with respect to the statutory structure, the court stated that the federal immigration laws create "what are essentially two alternative paths for denaturalization," one civil and one criminal. The civil path includes an express materiality requirement for false statements. The criminal path does not. Rather than construing these two paths in tandem, the Sixth Circuit concluded that "the explicit requirement of materiality under one approach but not the other is actually consistent with a two-track statutory scheme for denaturalization":

In a civil denaturalization suit, the government can bring its case simply by filing an equitable petition, proceed as in a civil case, and satisfy a lesser burden of proof than beyond a reasonable doubt. In light of the slightly lower burden of proof, Congress has required the government to prove that the naturalized citizen has concealed a material fact. By contrast, in a criminal case resulting in denaturalization, the government must prove the charge under 18 U.S.C. ¤ 1425 beyond a reasonable doubt while meeting the demands of constitutional due process. Congress has not required proof of materiality in that scenario arguably because of the higher burden of proof, the additional safeguards for the naturalized citizen's constitutional rights, and the broad sweep of ¤ 1425 itself.

In so holding, the Sixth Circuit recognized that Mrs. Maslenjak's position "finds support in a number of other circuit decisions holding that materiality is an implied element of 18 U.S.C. ¤ 1425(a)," but "by and large" deemed these decisions "unpersuasive."

Mrs. Maslenjak then sought a writ of certiorari, which this Court granted on January 13, 2017. In October 2016, while the petition was under consideration, Mrs. Maslenjak and her husband were deported from the United States to Serbia.

SUMMARY OF ARGUMENT

As a result of her conviction under 18 U.S.C. ¤ 1425(a), and subsequent denaturalization under 8 U.S.C. ¤ 1451(e), petitioner Divna Maslenjak was stripped of her American citizenship and deported from this country. She now lives halfway around the world, far removed from her children in Ohio. This Court should reverse her conviction for two separate and independent reasons.

First, Section 1425(a) requires the Government to prove that a defendant "procured or attempted to procure" American citizenship "contrary to law." As a matter of law and logic, that "procurement" requirement obliges the Government to establish some causal nexus between an underlying violation of law and the procurement (or attempted procurement) of American citizenship. And where, as here, the underlying violation of law is a false statement, the Government must establish at a minimum that the statement was material, i.e., that it had some tendency to influence the naturalization decision. By definition, an immaterial statement cannot "procure" an official decision. This interpretation not only harmonizes the civil and criminal denaturalization provisions, but avoids the potential constitutional problem that would arise by effectively reading the unlawful procurement element out of the unlawful procurement statute.

Second, an underlying predicate offense charged here-18 U.S.C. ¤ 1015(a)-also requires the Government to prove that the alleged false statement was material. Although Section 1015(a) does not contain an express materiality requirement, that point alone does not end the inquiry. Rather, this Court generally, and properly, presumes that Congress does not intend to criminalize trivial matters like immaterial statements: de minimis non curat lex. To be sure, particular criminal provisions may include language that effectively limits their scope even in the absence of a materiality requirement, and thus obviates the need to read in such a requirement. But Section 1015(a) contains no such limiting language, and thus should be construed to require a material false statement to prevent it from becoming an open-ended crime.

The Sixth Circuit Erred By Holding That A Naturalized American Citizen Can Be Stripped Of Her Citizenship In A Criminal Proceeding Based On An Immaterial False Statement.

This case presents the question whether the Government can strip a naturalized American of her citizenship based on a false statement that was not material to the naturalization process and thus could not have procured her citizenship. The Sixth Circuit answered that question in the affirmative, and thereby erred as a matter of law.

At issue here is the interplay of several statutory provisions. The first is located in Title 8 ("Aliens and Nationality"), and governs "revocation of naturalization." As relevant here, that provision directs a court to "revoke, set aside and declare void the final order admitting a naturalized American to citizenship" when that person "shall be convicted under section 1425 of title 18 of knowingly procuring naturalization in violation of law."

Section 1425 of title 18, in turn, is part of the federal criminal code. That provision, which is entitled "Procurement of citizenship or naturalization unlawfully," specifies in relevant part that "whoever knowingly procures or attempts to procure, contrary to law, the naturalization of any person ... Shall be fined under this title or imprisoned not more than 10 to 25 years, ... or both." It thus creates a naturalization "procurement" crime distinct from, but derivative of, an underlying violation of law.

Proof of a predicate violation of law is necessary, but not sufficient, for conviction under Section 1425(a).

To satisfy the "contrary to law" element of Section 1425(a) in this case, the Government alleged two different predicate offenses. The first-and the one at issue here-was a violation of 18 U.S.C. ¤ 1015(a), which prohibits "knowingly making 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." The second was a violation of 8 U.S.C. ¤ 1427(a)(3), which prohibits obtaining naturalization without "good moral character."

By holding that Mrs. Maslenjak could be convicted under Section 1425(a) and thus lose her citizenship under Section 1451(e) based on an immaterial false statement, the Sixth Circuit erred on two separate and independent grounds. First, the Sixth Circuit misconstrued Section 1425(a) by upholding a conviction where the Government failed to prove a causal link between the predicate violation and the procurement of naturalization. And second, the Sixth Circuit misconstrued Section 1015(a), one of the predicate offenses at issue here, by holding that it does not require proof of a material false statement. As explained below, each of these errors warrants reversal of the judgment.

In short, there is no good reason to construe Section 1015(a) to apply to immaterial false statements, and ample reason not to do so. Because the jury in this case was incorrectly instructed on this score, Mrs. Maslenjak is entitled to a new trial on this ground as well."

CONCLUSION

For the foregoing reasons, this Court should reverse the judgment.