High Court Likely to Limit Ability to Strip Citizenship

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By Kimberly Strawbridge Robinson

The justices seemed skeptical during oral argument April 26 that the federal government could strip a naturalized citizen of U.S. citizenship for making an immaterial false statement during the naturalization process ( Maslenjak v. United States , U.S., No. 16-309 , argued 4/26/17 ).

The argument, the final one the court will hear this term, comes amid efforts by President Donald Trump’s administration to tighten U.S. immigration laws.

A contrary ruling would put the millions of naturalized citizens in danger of losing their citizenship based on trivial false statements, Chief Justice John G. Roberts Jr. said.

The questions asked during the naturalization process are so broad that a naturalized citizen could be stripped of citizenship for failing to disclose that they once drove above the speed limit, Roberts said.

But the falsehood here wasn’t trivial, the federal government argued. Divna Maslenjak lied to cover up her husband’s possible involvement in the 1995 genocide of some 8,000 Bosnian Muslim civilians during the Bosnian civil war, the federal government said.

It seems likely that the court will send the case back down to the lower courts to determine if that lie actually influenced the government’s decision to naturalize Maslenjak.

Causal Link

There’s no question that a naturalized citizen can be stripped of their citizenship for lying during the naturalization process, under 18 U.S.C. § 1425. The issue for the justices is what kind of a lie it has to be.

The government can denaturalize a U.S. citizen if they knowingly make any false statement during the naturalization process, no matter how trivial, Robert A. Parker of the Justice Department, Washington, told the U.S. Supreme Court.

That’s because it’s not what the lie was about, but the fact that someone lied during the naturalization process that is important to the government, Parker said.

But several justices pushed back on that idea.

The statute requires that the citizen “knowingly procure” naturalization by lying. The most natural reading of the statute is that there must be some causal link between the lie and the procurement of citizenship, Justice Elena Kagan said.

“This may be a simpleminded question, but how can an immaterial statement procure naturalization?” Justice Ruth Bader Ginsburg interjected.

“That’s such a shorter statement of my question. It’s perfect,” Kagan said to laughter.

‘Linguistic Somersaults’

But Justice Neil M. Gorsuch pointed out that Congress specifically provides a materiality requirement in another part of the statute. So the court will have to do a lot of “linguistic somersaults” to say that there’s a similar materiality requirement here, where the statute isn’t explicit, Gorsuch said.

Justice Samuel A. Alito Jr. thought of a way around that, though.

The real issue isn’t about materiality, Alito said. It’s about what the word “procure” means in the statute. Those things “may or may not mean exactly the same thing,” Alito said.

Scalped Tickets

But Maslenjak was trying to get too much out of the word “procure,” Alito thought.

You say that it must be the “but for” cause that the person was naturalized, Alito told Maslenjak’s attorney, Christopher Landau of Kirkland & Ellis LLP, Washington. It would be pretty hard to rule out all other reasons that the government might have granted the person citizenship, Alito said.

Alito posed a hypothetical to prove his point.

Let’s assume there’s a law making it illegal to buy or sell a scalped ticket within 200 feet of a stadium, and “I knowingly buy a scalped ticket within 199 feet of the stadium,” Alito said.

“Now, in order for me to have procured that ticket contrary to law, would it be necessary to prove that I couldn’t have purchased this from another scalper around the other side who was outside of the 200 feet, or I couldn’t have gotten a ticket if I had waited in line at the box office?” Alito asked Landau.

That question “points out some of the very difficult questions of causation,” Landau admitted.

‘Scrupulously’ Comply

It seemed by the end of the argument, however, that Alito thought there had to be some causal link between the lie and the citizenship decision.

It would be “surprising” if Congress wanted to throw the citizenship of thousands of individuals into question, Justice Stephen G. Breyer said.

Some less strenuous tests than the “but for” one would still provide those individuals some peace of mind, Breyer suggested.

It might be sufficient that the lie had the tendency to influence the citizenship decision, or provided a means to obtain citizenship, rather than that it was the sole reason for the citizenship determination, Breyer said.

But citizenship is the highest privilege that the government can bestow, Parker said. It’s no wonder that the government requires that individuals “scrupulously comply with every rule governing the naturalization process,” he said.

‘Troublesome’ Interpretation

Interpreting the statute that way would give the federal government nearly “unlimited power” to denaturalize any naturalized citizen, Roberts said.

He noted that one question asked during the immigration process is whether the individual has “ever” committed an offense for which they weren’t arrested.

Roberts admitted to laughter that “at some time outside the statute of limitations,” he drove over the speed limit.

“Now, you say that if I answer that question no, years after I was naturalized as a citizen, you can knock on my door and say, guess what, you’re not an American citizen after all,” Roberts said.

Even lying about one’s weight could get them stripped of citizenship, Parker said.

“Oh, come on,” Roberts interjected.

Kagan, too, was “horrified” to learn that every time she lied about her weight it has that potential consequence.

Parker attempted to ease her concern by noting that the government would still have to prove that she knowingly lied under oath.

It’s “troublesome” to leave the fate of every naturalized citizen basically up to prosecutorial discretion, Roberts said.

Demeaning Citizenship

But denaturalization isn’t a permanent bar to citizenship, Parker said. The person can reapply for citizenship after a particular amount of time, he said.

All denaturalization does is return the person to their former immigration status, Parker said.

That argument demeans “the priceless value of citizenship,” Justice Anthony M. Kennedy said.

“You say, oh,” it just restores that person to their former status, Kennedy said. But “that’s not what citizenship means,” he said.

“You’re arguing for the government of the United States, talking about what citizenship is and ought to mean,” Kennedy chided Parker.

Throwing Roses

Maslenjak will still have an uphill battle even if she wins at the Supreme Court.

“I don’t know how well you’re going to do in front of this well-instructed jury,” Alito said, responding to Landau’s statement that all they were asking for was a proper jury instruction about the nature of the lie.

Landau admitted that people likely won’t be “throwing roses in our path on remand.”

“I do not deny that this could be a very tough row to hoe on remand,” Landau said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

Full transcript available at http://src.bna.com/ogT.

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