Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review
Immigration currently dominates the national conversation as President Trump’s travel ban and plans to build a wall on the south border have captured the attention of the nation. The immigration debate captures the attention of the nation because America has often been described as a nation of immigrants. Amidst this contentious debate, hundreds of thousands of people from around the world seek entry in to this country.[1] In the fiscal year of 2015, the United States naturalized 729, 995 people.[2] One issue that occurs in this process is when persons applying for naturalization lie on their applications in order to secure naturalization. The Immigration and Naturalization Act (INA) addresses this issue: “Whoever knowingly procures or attempts to procure, contrary to law, the naturalization of any person … [s]hall be fined not more than $5,000 or, imprisoned not more than five years, or both.[3] However, the Sixth and Ninth Circuits have disagreed about whether this statutory language requires a “material falsehood” in order to denaturalize a person. The Ninth Circuit found this statutory language required a showing by the government that the falsehood was materially false.[4] Alternatively, the Sixth Circuit held this language did not require a material falsehood in order to denaturalize a person.[5] The Sixth Circuit holding was the better decision because it better protects our nation from potential threats, while ensuring the protection of constitutional liberties. It also respects the proper role of the courts when interpreting statutes.
The Ninth Circuit Decision
In the Ninth Circuit decision, the court considered whether 18 U.S.C. § 1425 (a) requires material falsehood in order to denaturalize a citizen. The plaintiff in Puerta, originally from Spain, sought naturalization and stated as part of his application that he had not used any aliases or left the United States since becoming a permanent resident.[6] After his naturalization, the plaintiff attempted a transaction at Bank of America branch and was flagged for using a fraudulent account.[7] The police found the plaintiff had several driver’s licenses from several states and a passport that showed he had left the country.[8] The plaintiff was convicted of obtaining unlawful procurement of citizenship and the plaintiff appealed this decision.[9]
The Ninth Circuit could not find any cases that addressed whether 8 U.S.C. § 1451 (a) required a showing of material falsehood in order to be contrary to law.[10] However, the Court found similar statutes such as U.S.C. § 1451, governing the denaturalization of citizens, imposed a similar materiality requirement.[11] The court felt this interpretation was consistent with the leading US Supreme Court denaturalization case, Kungys v. United States, in which the Court held materiality was an appropriate standard for denaturalization.[12] The Court then analyzed Kungys in order to determine the appropriate standard for this case.[13]
The Ninth Circuit held denaturalization could occur where false statements were combined with evidence giving rise to a “fair inference” of ineligibility.[14] The court reasoned because the federal government had failed to link the evidence to hiding a criminal record or being absent more than six months, the government failed to link the false statements to any statutory ground for disqualification.[15] Therefore, the false statements were not material in nature and the conviction was overturned.[16]
The Sixth Circuit Decision
The Sixth Circuit also recently considered the issue of whether 18 U.S.C. § 1425 (a) requires a material falsehood in order to denaturalize a citizen.[17] The plaintiff in Maslenjak came into the United States after seeking refugee status to escape conflict in the Balkans.[18] The plaintiff claimed her husband had refused service in the Serbian army and the family feared prosecution as a result.[19] However, the plaintiff’s husband actually was an officer implicated in war crimes.[20] Based on these misrepresentations, the plaintiff was convicted of knowingly procuring her naturalization contrary to law, in violation of 18 U.S.C. § 1423.[21]
The Sixth Circuit held based on the plain language of the statute and the structure of denaturalization, proof of materiality of a falsehood is not required to sustain a conviction under 18 U.S.C. § 1425 (a).[22] First, the court noted the statute did not contain the word materiality at all and therefore was not an element.[23] The court reasoned that courts should “ordinarily resist reading words or elements into a statute that do not appear on its face”.[24] The court dismissed the approach of the Ninth Circuit opinion, reasoning the opinion was inconsistent with the broader statutory framework governing denaturalization.[25] The court noted that 18 U.S.C. § 1425 (a) criminalizes more conduct than simply making false statements or gaining citizenship in a manner contrary to law.[26] In fact, the statute can be read to criminalize the assisting of another person fraudulently obtaining citizenship.[27] The Sixth Circuit also noted that other violations of federal law regarding false statements in immigration proceedings do not require a proof of materiality.[28] Finally, the Court addressed whether mandatory denaturalization was equitable for a statement that was not materially false.[29] The court held Congress did not require materiality because of the high burden of proof necessary in a criminal proceeding, the right to a jury trial, and a right to counsel, among other things.[30]
Why the Sixth Circuit Opinion is the Stronger Opinion
The Sixth Circuit correctly argues naturalized citizens possess sufficient, constitutional protections in criminal proceedings as opposed to a requirement of material falsehood in the context of denaturalization. The punishment of denaturalization can seem harsh. It essentially banishes a person from the United States, even if the falsehood was not a material one. Immigrating and relocating to another country can be a frightening experience. Immigrants may place misleading information on their application in the hopes of being accepted as a citizen. It is an understandable human emotion to do anything in the pursuit of a better life particularly if family is involved. Ultimately, the Sixth Circuit was correct in holding that constitutional protections are sufficient to protect a naturalized citizen’s against criminal charges.[31]
While in some cases, a falsehood may be done for innocuous or understandable reasons, other potential naturalized citizens may have dubious motives for falsifying information on the application. In Maslenjak, one refugee was hiding a potential war criminal while in Puerta the naturalized citizen was likely attempting to commit fraud.[32] Materiality could complicate the analysis too much and allow potential criminals to remain in the country simply because their dishonesty was not “material” enough. The ability of legal counsel, jury trial, and the burden of proof provides sufficient due process to ensure the naturalized citizen is deprived of his status unfairly.[33]
Some may argue that Sixth Circuit’s relatively lenient standard for violating 18 U.S.C. § 1425 (a) is inconsistent with our heritage as a nation of immigrants. However, the Ninth Circuit decision provides the right balance of ensuring our nation can punish those who materially lie on their applications, while still allowing applicants flexibility for innocent errors. Yet, it is not the province of the courts to balance public policy concerns with the language of the statute. The Sixth Circuit articulated courts should take care not to read words or elements into statutes.[34] In a similar manner, court should not read public policy into a statute to satisfy their policy preferences of visions for what American should be.
Conclusion
The Sixth Circuit decision is the best interpretation of the statute because it best respects the security of our nations, the liberties of naturalized citizens, and the proper place of courts in our legal system. Mandating a materiality standard may compromise the ability to protect our nation because of technicalities. The constitutional rights every citizens enjoys ensures the accused will have the ability to have a legal defense. Further balancing public policy with the language of the statute is beyond the purview of the courts. Therefore, the Sixth Circuit’s decision is the best interpretation of this INA language.
[1] US Citizenship and Immigration Services, Naturalization Fact Sheet, https://www.uscis.gov/news/fact-sheets/naturalization-fact-sheet Naturalization Fact Sheet.
[2] Id.
[3] 18 U.S.C. § 1425 (a).
[4] U.S. v. Puerta, 982 F.2d 1297, 1302 (9th Cir. 1992).
[5] U.S. v. Maslenjak, 821 F.3d 675, 689 (6th Cir. 2016).
[6] Puerta, 982 F.2d at 1298-1299.
[7] Id. at 1299.
[8] Id.
[9] Id.
[10] Id at 1301.
[11] Puerta, 982 F.2d at 1301
[12] Id. at 1301.
[13] Id. at 1302-1304.
[14] Iid. at 1304.
[15] Id.
[16] U.S. v. Puerta, 982 F.2d at 1304.
[17] Maslenjak, 821 F. 3d. at 682.
[18] Id. at 679.
[19] Id. at 679.
[20] Id. at 679.
[21] Id. at 679.
[22] Maslenjak, 821 F. 3d. at 693.
[23] Id. at 682.
[24] Id.
[25] Id. at 683.
[26] Id. at 682.
[27] Maslenjak, 821 F. 3d. at 690.
[28] Id.
[29] Id. at 691.
[30] See id. at 692.
[31] See Maslenjak, 821 F. 3d at 692.
[32] See Maslenjak, 821 F.3d at 692; Puerta 982 F.2d at 1299.
[33] See Maslenjak, 821 F. 3d at 692.
[34] Id. at 682.
