At the Supreme Court on Wednesday, during arguments concerning a naturalized American who had been stripped of her citizenship, Chief Justice John Roberts appeared incredulous at the government’s position in the case.
“Oh come on,” he said at one point.
Listen to the audio, which we downloaded from the website Oyez. The pertinent exchange begins at about 25:30.
The government argued that it could strip citizenship from an individual who lied during the naturalization process — without having to prove that the lie was significant to the decision to grant naturalization.
Robert A. Parker, a Department of Justice lawyer, said that Congress required that when someone seeks naturalization — the “highest privilege the United States can bestow upon an individual” that the individual must “scrupulously comply with every rule governing the naturalization process.”
But Roberts had reviewed a naturalization form used by the government and was concerned about how broad the questions were and of the impact the government’s position could have if someone did not fully answer every single question. He launched his own line of inquiry.
He noted that one question asks whether the applicant has ever attempted to commit a crime for which he was not arrested.
“Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55 mile an hour zone. … I was not arrested,” he said, as the audience laughed.
“Now you say, ” he continued, that if he had failed to note the offense on the form, “20 years after I was naturalized as a citizen, you could knock on my door and say, ‘guess what, you’re not an American citizen after all?'”
Later Roberts said he thought the government’s position could lead to a problem of “prosecutorial abuse”.
The case at hand concerned Divan Maslenjak, an ethnic Serb who was born in a Serb village in what today is Bosnia and Herzegovina. She arrived in the United States in 2000 as a refugee and was ultimately granted naturalization in 2007.
In 2013, however, a jury found her guilty of making false statements on her application for naturalization and she was stripped of her citizenship. Her lawyers are challenging the jury instruction in the case because the jury was told it could convict her even if the false statement at issue did not influence the government’s decision to approve her naturalization.
Lower courts have split on the issue of whether the government must prove that the offense was material to the decision to grant naturalization.
In Court, Christopher Landau, a lawyer for Maslenjak, conceded that she had lied. But he said the jury instruction in the case “didn’t require the government to prove that the underlying violation of law had any effect whatsoever on the naturalization decision.” He argued that his client should be able to go back to court to argue the material question before the jury, and he acknowledged that even then she would have a “tough row to hoe.”
At arguments, Justice Stephen Breyer shared some of Roberts’ concerns.
He said he thought it would be “rather surprising” if Congress interpreted the statutes at issue in a way “that would throw into doubt the citizenship of vast percentages of all naturalized citizens.”
He launched his own hypothetical — what if he brought a pocketknife in a government building during an immigration hearing. Would he be subject to deportation if he didn’t list the undiscovered offense on his naturalization form?
Parker held fast. He said that Congress has “specifically provided that it is a crime to lie under oath in the naturalization process, even about an immaterial matter, and it has provided that certain of those immaterial lies are categorical bars to naturalization.”
Justice Kennedy did not mince his words with Parker.
“It seems to me that your argument is demeaning the priceless value of citizenship, “he said.
A lower court ruled in favor of the government. “Based on the plain language of the statute as well as the overall statutory scheme for denaturalization, we hold that proof of a material false statement is not required to sustain a conviction.”
While the case may seem narrow — targeting a circuit split on an issue of statutory interpretation — immigrant rights groups are fearful that it could have broad impact, depending upon how the court rules.
“If the government gets the power to take away citizenship and jail people based on any minor misstatement in their citizenship application, then almost all naturalized citizens will be at risk,” said Nancy Morawetz, who filed a brief in support of Maslenjak for the Immigrant Defense Project.
She fears that “prosecutors will use this power to go after naturalized citizens and completely disrupt their lives and the lives of their families on grounds that are far beyond what was ever intended by Congress.”
