In the

Supreme Court of the United States

DIVNA MASLENJAK, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

 

BRIEF FOR THE UNITED STATES

STATEMENT

Following a jury trial in the United States District Court for the Northern District of Ohio, petitioner was convicted of knowingly procuring naturalization contrary to law, in violation of 18 U.S.C. 1425(a); and knowingly using an unlawfully issued certificate of naturalization, in violation of 18 U.S.C. 1423. The district court sentenced petitioner to two years of probation and revoked her naturalization pursuant to 8 U.S.C. 1451(e). The court of appeals affirmed.

1. a. Petitioner is an ethnic Serb and a native of what is today the nation of Bosnia and Herzegovina (Bosnia), formerly part of Yugoslavia. In the 1990s, as Yugoslavia disintegrated, Bosnia descended into a civil war between rival ethnic groups, including Bosnian Serbs and Bosnian Muslims. With the exception of a brief sojourn to the Serbian city of Belgrade in 1992, petitioner remained in Bosnia throughout the war.

In April 1998, petitioner and her family met with an American immigration official in Belgrade to seek ref­ugee status based on their supposed fear of persecu­tion in Bosnia. Petitioner was the pri­mary applicant on her family's application. She stated under oath that her family feared per­secution based on their Serbian ethnicity and because her husband, Ratko Maslenjak, refused to serve in the Bosnian Serb military during the civil war. Petitioner swore that when she returned to Bosnia in 1992, her husband had remained in Serbia to avoid conscription. Petitioner claimed that, as a result, she and her husband had lived apart from 1992 to 1997.

Based on those representations, petitioner and her family, including her husband, were granted refugee status and immigrated to the United States in 2000. In 2004, petitioner and her husband became lawful permanent residents of the United States.

b. Petitioner's story was false. In 2006, immigra­tion officials confronted Ratko Maslenjak with mili­tary records establishing that he had been an officer in the Bratunac Brigade of the Army of the Republic Srpska, also known as the Bosnian Serb Army or VRS. Ratko's service coincided with the Bratunac Brigade's participation in the July 1995 genocide of 8000 Bosnian Muslim civilians in and around the town of Srebrenica. Although the records did not directly implicate Ratko in war crimes, they contained significant evidence of his involvement, including that he was serving as a company command­er in the Bratunac Brigade on the days of the massa­cre and that he was promoted to a higher rank two months later. The docu­ments also indicated that Ratko was on active duty with the Bosnian Serb Army during the period when petitioner claimed that Ratko was hiding in Serbia to avoid conscription.

Petitioner was present in 2006 when immigration officers interviewed Ratko about his prior military service. Soon after, Ratko was arrested and was charged with two counts of making a false statement on a government document.

c. One week after Ratko's arrest for lying about his service in the Bratunac Brigade, petitioner filed an Application for Naturalization. One of the questions on the application asked whether petitioner had ever "given false or misleading information to any U.S. government official while ap­plying for any immigration benefit or to prevent de­portation, exclusion or removal." Another question asked whether petitioner had ever "lied to any U.S. government official to gain entry or admission into the United States." Petitioner falsely answered "no" to both ques­tions but swore under oath that her answers were true. Petitioner was also interviewed under oath about her eligibility for naturalization and affirmed that her written answers were true and cor­rect. In August 2007, pe­titioner was naturalized as a United States citizen.

d. In October 2007, Ratko was convicted of making false statements on a government document, render­ing him subject to removal from the United States. Petitioner then filed a Peti­tion for Alien Relative seeking to classify Ratko as the spouse of a U.S. citizen, which would allow Ratko to seek lawful permanent resident status as relief from his removal proceedings.

Ratko also filed an application for asylum. During petitioner's testimony at Ratko's asylum hearing, she admitted that she and Ratko had in fact lived together in Bosnia after 1992 and that she lied during her 1998 refugee application interview in Bel­grade.

2. A federal grand jury charged petitioner with one count of "knowingly procuring, contrary to law, her naturalization," in violation of 18 U.S.C. 1425(a). The indictment alleged that petition­er "made material false statements" by answering "no" to questions 23 and 24 on her Application for Naturalization and by "answering the same" during her naturalization interview, even though she "then well knew that she had lied to government officials when applying for her refugee status and her lawful permanent resident status and thereby gained admis­sion into the United States." The grand jury also charged petitioner with knowingly misusing evi­dence of naturalization, in violation of 18 U.S.C. 1423, in connection with her attempt to avoid Ratko's re­moval by filing a Petition for Alien Relative on his behalf. Indictment.

3. The government contended at trial that peti­tioner committed an offense under Section 1425(a) by violating two federal laws in the course of procuring her naturalization: (1) which prohibits knowingly making a false statement under oath in a naturalization proceeding; and (2) which prohibits the naturalization of a candidate who lacks "good moral character," including a person "who has given false testimony for the purpose of obtaining" an immigration benefit.

The district court instructed the jury that, "ijn or­der to prove that petitioner 1 acted 'contrary to law'" for purposes of Section 1425(a), "the government must prove that petitioner acted in violation of at least one law governing naturalization." The court explained that two such laws were at issue in this case--and that the jury could convict petitioner of a Section 1425(a) offense if it found that she acted contrary to either of those statutes. The court instructed the jury that a naturalization applicant violates Section 1015(a) if she "knowingly makes any false statement under oath, relating to naturalization." Alternatively, the court stated that Section 1427(a)(3) "requires an applicant to demonstrate that 'she has been and still is a person of good moral char­acter,'" and that "giving false testimony for the purpose of obtaining any immigration benefit pre­cludes someone from being regarded as having good moral character." The court further instructed the jury, over petition­er's objection, that a "false statement contained in an immigration or naturalization document does not have to be material in order for petitioner to have violated the law in this case."

The jury convicted petitioner on both counts. Petitioner's con­viction for violating 18 U.S.C. 1425(a) resulted in mandatory revocation of her citizenship.

4. The court of appeals affirmed. Petitioner argued that materiality is an element of Section 1425(a) and that the district court erred in instructing the jury otherwise. The court rejected that argument.

First, the court of appeals observed that "the term 'material' is found nowhere in Section 1425(a)," and thus "al plain reading of the statute" indicates that materiality is not an element of the offense. The court explained that "reading an implied element of materiality into" Section 1425(a) would be "inconsistent with other laws criminalizing false statements in immigration proceedings and regulating the naturalization process." The court ob­served that neither of the predicate violations of law supporting petitioner's Section 1425(a) conviction requires proof of materiality, and thus it would be "incongruous" to require such proof to establish that petitioner acted "contrary to" those laws in procuring her naturalization.

Second, the court of appeals explained that the lack of a materiality requirement under Section 1425(a) is consistent with Congress's provision for "a two-­track system for denaturalization," one civil and the other criminal. The court noted that Congress has authorized denaturalization in a civil proceeding if the government establishes by clear, unequivocal, and convincing evidence that an alien procured naturalization by concealing or willfully misrepresenting a "material fact." Congress imposed no similar materiality requirement for a criminal conviction pursuant to Section 1425(a), which results in mandato­ry denaturalization under 8 U.S.C. 1451(e). Instead, the court explained, the govern­ment must meet the exacting procedural and constitu­tional requirements of a criminal prosecution to pro­ceed under that "track," including proving a predicate violation of law and other elements of the offense beyond a reasonable doubt.

The court of appeals recognized that other courts of appeals had interpreted Section 1425(a) to contain an implied element of materiality, but it found those decisions "unpersuasive." The court explained that the leading case, United States v. Pueria, interpreted the phrase "contrary to law" in Section 1425(a) in a manner that "ignores the fact that other violations of federal law pertaining to false statements in immigration proceed­ings do not require proof of materiality." The court noted that other courts of appeals had followed Pueria "without engaging in their own analy­sis of the statutory language," or had mere­ly assumed that materiality was required based on the parties' agreement.

Judge Gibbons filed a concurring opinion express­ing her uncertainty as to "what goal Congress intended to further by omitting materiality from the elements of Section 1425(a)." None­theless, she joined the court's opinion because "the view most faithful to the statute is that materiality is not an element of the offense."

SUMMARY OF ARGUMENT

The government was not required to prove that pe­titioner's false statements were material in order to obtain a conviction under Section 1425(a).

I. A. Section 1425(a) of Title 18 of the United States Code is an umbrella statute that imposes criminal penalties on individuals who procure naturaliza­tion in a manner "contrary to" other laws. Some of those laws require proof that the defendant made a material false statement. When a defendant is alleged to have acted "contrary to" such a law for purposes of Section 1425(a), the government must prove materiali­ty to establish the predicate violation. But other pred­icate violations-including the ones in this case-do not require a material false statement. And still oth­ers (like bribery, identity theft, or committing other disqualifying crimes) involve conduct that cannot reasonably be analyzed for "materiality" at all.

No justification exists for inserting an element of materiality in Section 1425(a). That term does not appear in the statute, nor does it appear in 8 U.S.C. 1451(e), which mandates denaturalization upon a con­viction under Section 1425(a). Implying such an ele­ment would effectively preclude the consistent appli­cation of Section 1425(a) to all potential predicate violations of law. The better interpretation, and the one most faithful to the text, is that a person violates Section 1425(a) if she procures naturalization in a manner that violates another provision of law that governs the naturalization process, defined according to the elements of the precise violation at issue.

B. The statutory phrase "procures * * * contrary to law" does not imply a materiality requirement. An individual need only procure her naturalization in a manner that violates the law; the statute does not say that the violation of law must itself "procure" or "cause" the naturalization. That interpretation is inconsistent with numerous decisions of this Court interpreting the term "procured" in the naturalization context, which make clear that an individual "procures" her naturali­zation unlawfully if she violates the rules Congress has set forth for obtaining naturalization-even if she would have obtained naturalization without violating the law.

C. The history and evolution of Section 1425(a) and related statutes confirms that materiality is not an element of the statute. Congress has long prohibited false statements made under oath in the naturalization process, some material and some immaterial, and it has consistently required aliens to demonstrate good moral character in order to be naturalized, a require­ment that is not satisfied if the alien gives false but immaterial testimony. Congress deliberately eliminated the materiality requirements in those statutes over the years, including two material false statement offenses that appeared in the same section of a 1906 statute from which Section 1425(a) descends. At the same time, Congress has expanded the scope of the criminal unlawful procurement provision and has specified that it applies to violations of any law, not just those that prohibit material falsehoods.

D. The lack of a materiality requirement in Section 1425(a) is not inconsistent with the presence of such a requirement in one provision of the civil denaturaliza­tion statute, 8 U.S.C. 1451(a). A number of procedural and substantive differences between Section 1425(a) and Section 1451(a) help explain why Congress thought it useful to permit denaturalization in either civil or criminal proceedings. No reason exists to pre­sume that Congress intended that the presence of an alternative materiality requirement in the former would require courts to imply an element of materiality in the latter.

E. The constitutional avoidance doctrine does not support petitioner's interpretation because no consti­tutional principle prohibits Congress from requiring that aliens not make false statements under oath, even immaterial ones, in procuring their naturalization. Nor does the rule of lenity apply. Section 1425(a) con­tains no grievous ambiguity that would require the Court to guess at the statute's meaning. Petitioner's interpretation is inconsistent with the text, structure, and history of the statute and should be rejected.

II. A. This Court should decline to address peti­tioner's alternative argument that 18 U.S.C. 1015(a) requires proof of materiality even if Section 1425(a) does not. Petitioner's question presented identifies a specific circuit conflict over whether materiality is an element of Section 1425(a). No similar conflict exists concerning whether Section 1015(a) requires proof of materiality: all of the courts of appeals to have con­sidered the question, including two of the circuits identified in petitioner's question presented, have held that it does not. Petitioner also waived any argument that Section 1015(a) requires proof of materiality in the court of appeals. Moreover, although construing Section 1015(a) to require materiality may be an al­ternative ground for reversing petitioner's conviction on the facts of this case, it would not resolve the ques­tion presented, which concerns whether, as a general matter, an alien may be denaturalized following a criminal conviction under Section 1425(a) based on immaterial false statements.

B. Regardless, Section 1015(a) does not require proof of materiality. This Court has rejected any general presumption of materiality in false statement statutes. To the contrary, it has held that such statutes do not generally require proof of materiality unless Congress incorporates an express materiality element or a common law term that is understood to require materiality. Congress has included a materi­ality element in some false statement statutes but not in Section 1015(a). The history of Section 1015(a) confirms that materiality is not required.

III. In any event, petitioner's lies were material and so any error in the jury instructions was harm­less. Petitioner lied about her husband's activities and whereabouts during the Bosnian civil war in an effort to conceal the fact that he was a commanding officer in a military unit that committed acts of persecution culminating in genocide. She perpetuated those lies in her naturalization proceedings. The government presented extensive and unrebutted evidence at trial that, had officials known the truth, it would have af­fected their decision to grant petitioner and her family refugee status and their subsequent decision to grant petitioner citizenship.

If petitioner had answered questions 23 and 24 in her Application for Naturalization truthfully-if she had admitted to giving false or misleading information to immigration officials about her husband's military service and their whereabouts during the civil war when applying for refugee status, ­her answers would have been relevant to determining whether she was "eligible for * * * naturalization." Petitioner's false statements were relevant to whether she was "properly admitted" as a refugee "or adjusted status properly to that of a permanent resi­dent," which is a necessary precondition for naturaliza­tion. They were also relevant to determining her "good moral character," which "plays * * * one of the most important roles" in an "application to become a U.S. citizen." "Lying under oath to an immigration officer or lying to obtain an immigration benefit" would preclude a finding of good moral character. Because of that, im­migration officials considered it important to "make sure" that an applicant for naturalization, like peti­tioner, was "eligible for all benefits along the way on her pathway to citizenship" before acting on her application. Evidence of "a fraudulently pro­cured earlier benefit or application for an immigration benefit" would have "affected the agency's deter­mination on the applicant's good moral character" and thus her eligibility for citizenship.

Petitioner's lies also affected the naturalization proceeding itself. Had petitioner checked "yes" to either question 23 or 24, "there would have been further questioning" and petitioner's application "would have been sent for a further review * * * because that would question her eligibility." At a minimum, the individual who was processing petition­er's Application for Naturalization would not have been authorized to grant her application for citi­zenship and would instead have been required to commence an investigation.

The evidence clearly shows that petitioner's lies were "capable of affecting" official decisions concern­ing her naturalization. Peti­tioner's lies were material to her eligibility for citizen­ship because they concealed evidence of her lack of good moral character and prevented the government from learning facts that called into question the law­fulness of her immigration history. They also affected the conduct of the naturalization proceeding, allowing petitioner to avoid an investigation and hastening her grant of citizenship, which she then used in an attempt to protect her husband from removal. Any error in failing to instruct the jury on materiality was harmless.

CONCLUSION

The judgment of the court of appeals should be affirmed.