Materiality: Why it Is Crucial to the United States' Denaturalization Process

• Publication year: 2018

MATERIALITY: WHY IT IS CRUCIAL TO THE UNITED STATES' DENATURALIZATION PROCESS

Robert Mangum^*

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Table of Contents

I. Introduction...............................................................................756

II. The Law of Denaturalization and Deportation.................762

A. United States v. Puerta.............................................................762
B. Proliferation of a Circuit Split After the Sixth Circuit Decision...................................................................................762
C. The Supreme Court's Decision................................................763
D. The History and Procedure of Denaturalization.....................765
E. Application of the Law to the Maslenjak Case.........................768
F. The Statutory Canons of Construction.....................................769
G. Theories of Statutory Interpretation........................................771

III. Potential Violations of Domestic Policy and International Obligations......................................................775

A. Early Domestic Views on Immigration....................................775
B. Modern Domestic Goals of Immigration.................................777
C. International Obligations of the United States........................782

IV. Conclusion..................................................................................788

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I. Introduction

On April 6, 2016, the U.S. Court of Appeals for the Sixth Circuit handed down a decision that unwound decades of precedent. The decision had the ability to lead to the United States denaturalizing and deporting more immigrants in a way that would violate the domestic goals of the country for immigration and naturalization, as well the United States' obligations of non-refoulement in the international community.¹ In the court's decision in United States v. Maslenjak, the Sixth Circuit ruled testimonial or documentary representations in the naturalization process need not be material to trigger criminal liability under 18 U.S.C. § 1425(a).² Luckily, the Supreme Court reversed this decision in 2017, holding any misstatements must be material for criminal liability to be present.³

Divna Maslenjak was born in a predominately-Serbian village in what is now the nation of Bosnia.⁴ Muslims in the surrounding region often clashed with ethnic Serbs in the area like the Maslenjaks.⁵ As the former Yugoslavia began to break up, the United States sent immigration officials to assist refugees that were fleeing the violent ethnic cleansing in Bosnia.⁶ In an interview to determine refugee eligibility, Divna Maslenjak (the primary applicant for her family's asylum application) stated under oath that her family feared persecution because her husband, who lived apart from her from 1992 to 1997 to avoid being conscripted, did not serve in the military during the war.⁷ The Maslenjaks were given refugee status in 1999,

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immigrated to the United States and settled in Ohio in 2000 where they were granted permanent resident status in 2004.⁸

In 2006, the Department of Homeland Security investigated Divna's husband, Ratko, for failing to disclose military service in Serbia on his immigration application.⁹ Ratko served in a brigade that committed war crimes, although there is no evidence he was personally involved in the crimes.¹⁰ Nevertheless, he was arrested in December 2006 for making a false statement on a government document.¹¹ A week after Ratko's arrest, Divna Maslenjak filed a N-400 Application for Naturalization that stated she had never "knowingly given false or misleading information to any U.S. government official while applying for any immigration benefit or to avoid deportation, exclusion, or removal" or "lied to any U.S. government official to gain entry or admission into the United States."¹² Divna Maslenjak was naturalized on August 3, 2007.¹³

Ratko Maslenjak was convicted and thus subject to removal, so he filed a petition for asylum.¹⁴ Divna filed an I-130 Petition for Alien Relative and testified in her husband's asylum hearing. During the hearing, she admitted to lying to immigration officers about her husband's military service. Further, she admitted to lying when she told immigration officers the pair had lived apart while in Bosnia.¹⁵ Divna Maslenjak was subsequently indicted by a federal grand jury for "knowingly procuring her naturalization contrary to law in violation of 18 U.S.C. § 1425(a)" and "knowingly misusing her unlawfully issued certificate of naturalization to file a Form I-130 Petition for Alien Relative on February 6, 2009, to obtain lawful permanent resident status for her husband, in violation of 18 U.S.C. § 1423."¹⁶ A jury found her guilty on both charges and granted the government's motion to revoke her naturalized status under 8 U.S.C. § 1451(e).¹⁷

The case was appealed to the Sixth Circuit. The first issue before the court was whether 18 U.S.C. § 1425(a) contained an implied requirement of materiality when naturalized citizens face mandatory denaturalization after

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conviction.¹⁸ The Sixth Circuit held that proof of a material false statement is not necessary to sustain a conviction under 18 U.S.C. § 1425(a).¹⁹ The court reasoned there is no statutory support for the materiality requirement because it is not in the text of the statute.²⁰ The court dismissed the position of previous courts, particularly the Ninth Circuit, which had read in a materiality requirement. The Sixth Circuit said that reading in a materiality requirement would be "inconsistent with other laws criminalizing false statements in immigration proceedings and regulating the naturalization process."²¹ The court also reasoned that the Immigration and Nationality Act (INA) created a two track system that has both civil and criminal denaturalization, and the lack of a materiality requirement would be justified by the fact a higher burden (beyond reasonable doubt) must be met to trigger mandatory denaturalization in the criminal context.²² As a result of the court's ruling, Divna Maslenjak filed a writ of certiorari in September 2016 to have her case heard by the Supreme Court.²³ The Maslenjaks were deported to Serbia at the end of September 2016.²⁴ Despite their deportation, the Maslenjak's case was argued before the Supreme Court on April 26, 2017.²⁵ The Supreme Court issued a slip opinion on June 22, 2017 in which the Court vacated the Sixth Circuit's decision and remanded the case to be decided in a manner consistent with the Supreme Court's approach.²⁶

According to the text of the statute, any conviction under 18 U.S.C. § 1425(a) triggers the mandatory criminal denaturalization under 8 U.S.C. § 1451(e).²⁷ In making its ruling to not read in a requirement of materiality, the Sixth Circuit broke with every other circuit that had previously

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considered the issue.²⁸ The result would have been anyone convicted under 18 U.S.C. § 1425(a) would be subject to mandatory criminal denaturalization under 8 U.S.C. § 1451(e) regardless of whether the misstatements made to procure naturalization were material. The Supreme Court overturned the Sixth Circuit decision, although two opinions merely concurring in the judgment could suggest a different result could be possible under different factual circumstances if the Supreme Court is ever asked to reconsider this statutory scheme.²⁹

Generally, there are two types of statutory construction courts can use to interpret statutes when there is more than one plausible reading. The two categories are the textual/language canons of construction and the substantive canons of construction.³⁰ The outcome of the inquiry into the canons of statutory construction will determine what possible solutions there are to the issues outlined above when mandatory criminal denaturalization is the result of a conviction under 18 U.S.C. § 1425(a) regardless of materiality. Although the Sixth Circuit thought it had a more accurate reading of the statutory scheme between 18 U.S.C. § 1425 and 8 U.S.C. § 1451 under the textual canons of construction, Justice Kagan argued in her majority opinion that the "procure, contrary to law" language meant that any misstatement had to necessarily be material.³¹ In addition, the Ninth Circuit and Supreme Court's readings are supported even more by the substantive canons of construction.³²

The Supreme Court resolved the circuit-split to the advantage of several policy-based considerations. First, by following the Sixth Circuit's interpretation, the United States would have risked violating its own longstanding domestic policies of immigration, robbing itself of productive members of society. The United States has long sought to promote robust immigration that would lead to productive immigrants becoming part of the nation's citizenry. George Washington, for example, sought to attract immigrants to the United States that would be "sober, industrious, and

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virtuous members of Society."³³ James Madison advocated for immigrants so long as they would be "a real addition to the wealth or strength of the United States" and were willing to assimilate and incorporate themselves into the American society.³⁴ Today, the goals of the United States in the immigration system are to

reunite families . . . admit workers with specific skills and to fill positions in occupations deemed to be experiencing labor shortages . . . provide a refuge for people who face the risk of political racial, or religious persecution . . . [and] ensure diversity by providing admission to people from countries with historically low rates of immigration to the United States.³⁵

The mandatory criminal denaturalization process would be too rigid in many instances if materiality is not required and could lead to the deportation of formerly-naturalized citizens that have been nothing but "sober, industrious, and virtuous" members of the United States since immigrating to the country.³⁶

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