“Sep 7 We Are All Dreamers
One of the best recurring experiences of my first stint in private practice (prior to my appointment as an immigration judge in 1995) would begin with my answering the phone and hearing “Jeff, buddy, Abe Rosenthal!” A.M. Rosenthal was one of the biggest names in journalism. A Pulitzer Prize winning foreign correspondent, Abe then became the long-time editor of the New York Times. He courageously pushed to publish the Pentagon Papers over the objection of the Nixon administration, which led to a landmark Supreme Court decision protecting freedom of the press. He also oversaw the paper’s coverage of the Vietnam War and Watergate. Abe heard me speak at a press briefing on asylum in the early 1990s, and would call from time to time to discuss an immigration column he was working on.
Abe once told me that many would ask him why he was so conservative in his views on other topics (an opinion that Abe himself disputed) but was so liberal in his views on immigration? He explained as follows: he was born in Canada; his family immigrated to the U.S. when he was a child. He added that his family’s reason for coming to the U.S. was entirely economic: he therefore saw nothing wrong with immigrants coming to this country solely in search of better wages. When Abe was 18 (which would have been around 1940), he went to enlist in the Army; as was normal procedure, he was asked for his proof of citizenship. When he went home to ask his mother for his citizenship papers, her face took on a strange expression; she then explained to him that he had no legal status in the U.S. Abe said that this was a traumatic experience; he had always thought he was American. He added that back in that time, the authorities were very understanding about this issue, and he was able to obtain U.S. citizenship quickly and easily. But the experience forever shaped his views on immigration.
Abe passed away in 2006, but I thought of his story on Tuesday not long after hearing the depressing, infuriating announcement by our nation’s supposed defender of justice, revoking the legal status that President Obama had through executive order bestowed on some 800,000 youths who, like the late Abe Rosenthal, possessed all that it means to be American with the exception of a citizenship paper. Many others have by now responded to the termination of DACA far more eloquently, emotionally, and intelligently than I could do. I therefore simply wish that A.M. Rosenthal, a Dreamer some 70 years ahead of his time, were still around to write one more column from his heart in response to the sickening injustice that just befell 800,000 of our own youth and our nation’s future.”
Copyright 2017 Jeffrey S. Chase. All rights reserved.
Republished with permission.
Here’s the Court’s Syllabus (NOT part of the decision);
SUPREME COURT OF THE UNITED STATES
MASLENJAK v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 16–309. Argued April 26, 2017—Decided June 22, 2017
Petitioner Divna Maslenjak is an ethnic Serb who resided in Bosnia during the 1990’s, when a civil war divided the new country. In 1998, she and her family sought refugee status in the United States. In- terviewed under oath, Maslenjak explained that the family feared persecution from both sides of the national rift: Muslims would mis- treat them because of their ethnicity, and Serbs would abuse them because Maslenjak’s husband had evaded service in the Bosnian Serb Army by absconding to Serbia. Persuaded of the Maslenjaks’ plight, American officials granted them refugee status. Years later, Maslenjak applied for U. S. citizenship. In the application process, she swore that she had never given false information to a government of- ficial while applying for an immigration benefit or lied to an official to gain entry into the United States. She was naturalized as a U. S. cit- izen. But it soon emerged that her professions of honesty were false: Maslenjak had known all along that her husband spent the war years not secreted in Serbia, but serving as an officer in the Bosnian Serb Army.
The Government charged Maslenjak with knowingly “procur[ing], contrary to law, [her] naturalization,” in violation of 18 U. S. C. §1425(a). According to the Government’s theory, Maslenjak violated §1425(a) because, in the course of procuring her naturalization, she broke another law: 18 U. S. C. §1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding. The District Court instructed the jury that, to secure a conviction un- der §1425(a), the Government need not prove that Maslenjak’s false statements were material to, or influenced, the decision to approve her citizenship application. The Sixth Circuit affirmed the convic- tion, holding that if Maslenjak made false statements violating
2 MASLENJAK v. UNITED STATES Syllabus
§1015(a) and procured naturalization, then she also violated §1425(a).
1. The text of §1425(a) makes clear that, to secure a conviction, the
Government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. To “procure . . . naturalization” means to obtain it. And the adverbial phrase “contrary to law” speci- fies how a person must procure naturalization so as to run afoul of the statute: illegally. Thus, someone “procure[s], contrary to law, naturalization” when she obtains citizenship illegally. As ordinary usage demonstrates, the most natural understanding of that phrase is that the illegal act must have somehow contributed to the obtain- ing of citizenship. To get citizenship unlawfully is to get it through an unlawful means—and that is just to say that an illegality played some role in its acquisition.
The Government’s contrary view—that §1425(a) requires only a vi- olation in the course of procuring naturalization—falters on the way language naturally works. Suppose that an applicant for citizenship fills out the paperwork in a government office with a knife tucked away in her handbag. She has violated the law against possessing a weapon in a federal building, and she has done so in the course of procuring citizenship, but nobody would say she has “procure[d]” her citizenship “contrary to law.” That is because the violation of law and the acquisition of citizenship in that example are merely coincidental: The one has no causal relation to the other. Although the Govern- ment attempts to define such examples out of the statute, that effort falls short for multiple reasons. Most important, the Government’s attempted carve-out does nothing to alter the linguistic understand- ing that gives force to the examples the Government would exclude. Under ordinary rules of language usage, §1425(a) demands a causal or means-end connection between a legal violation and naturaliza- tion.
The broader statutory context reinforces the point, because the Government’s reading would create a profound mismatch between the requirements for naturalization and those for denaturalization: Some legal violations that do not justify denying citizenship would nonetheless justify revoking it later. For example, lies told out of “embarrassment, fear, or a desire for privacy” (rather than “for the purpose of obtaining [immigration] benefits”) are not generally dis- qualifying under the statutory requirement of “good moral charac- ter.” Kungys v. United States, 485 U. S. 759, 780; 8 U. S. C. §1101(f)(6). But under the Government’s reading of §1425(a), any lie told in the naturalization process would provide a basis for rescinding citizenship. The Government could thus take away on one day what
Cite as: 582 U. S. ____ (2017) 3
it was required to give the day before. And by so unmooring the rev- ocation of citizenship from its award, the Government opens the door to a world of disquieting consequences—which this Court would need far stronger textual support to believe Congress intended. The stat- ute Congress passed, most naturally read, strips a person of citizenship not when she committed any illegal act during the naturaliza- tion process, but only when that act played some role in her naturalization. Pp. 4–9.
2. When the underlying illegality alleged in a §1425(a) prosecution is a false statement to government officials, a jury must decide whether the false statement so altered the naturalization process as to have influenced an award of citizenship. Because the entire naturalization process is set up to provide little room for subjective pref- erences or personal whims, that inquiry is properly framed in objec- tive terms: To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.
If the facts the defendant misrepresented are themselves legally disqualifying for citizenship, the jury can make quick work of that inquiry. In such a case, the defendant’s lie must have played a role in her naturalization. But that is not the only time a jury can find that a defendant’s lies had the requisite bearing on a naturalization decision, because lies can also throw investigators off a trail leading to disqualifying facts. When relying on such an investigation-based theory, the Government must make a two-part showing. Initially, the Government must prove that the misrepresented fact was suffi- ciently relevant to a naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation. Kungys, 485 U. S., at 774, n. 9. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit. The Government need not show definitively that its investiga- tion would have unearthed a disqualifying fact. It need only estab- lish that the investigation “would predictably have disclosed” some legal disqualification. Id., at 774. If that is so, the defendant’s mis- representation contributed to the citizenship award in the way §1425(a) requires. This demanding but still practicable causal standard reflects the real-world attributes of cases premised on what an unhindered investigation would have found.
When the Government can make its two-part showing, the defend- ant may overcome it by establishing that she was qualified for citizenship (even though she misrepresented facts that suggested the opposite). Thus, whatever the Government shows with respect to a
MASLENJAK v. UNITED STATES Syllabus
thwarted investigation, qualification for citizenship is a complete defense to a prosecution under §1425(a). Pp. 10–15.
3. Measured against this analysis, the jury instructions in this case were in error. The jury needed to find more than an unlawful false statement. However, it was not asked to—and so did not—make any of the necessary determinations. The Government’s assertion that any instructional error was harmless is left for resolution on remand. Pp. 15–16.
821 F. 3d 675, vacated and remanded.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. ALITO, J., filed an opinion concurring in the judgment.
Interestingly, Justice Gorsuch, in his first immigration-related decision, wrote a separate concurring opinion agreeing with the majority that a misrepresentation must be “material” but indicating that he would not have gone on to attempt to articulate a test for “materiality.”
Doubt that the Government’s max-enforcement effort in the Federal Courts is out of touch with reality and the law? Try this: With a supposedly conservative majority Supreme Court, the Gov has lost two recent cases this one and Esquivel-Quintana v. Sessions(http://immigrationcourtside.com/2017/05/31/led-by-justice-thomas-unanimous-supremes-reject-usgs-attempt-to-deport-mexican-man-for-consensual-sex-with-a-minor-strict-interpretation-carries-the-day/) by a total vote of 17-0. Yes, that’s right, 17-0! Not one Justice has sided with any of the nonsense that the Solicitor General has advanced on behalf of Government overreach on immigration enforcement. Justice Thomas even wrote the unanimous opinion in Esquivel (Justice Gorsuch sat that one out).
And, remember that these were positions developed and defended by the DOJ under the Obama Administration.
No way to explain this baby succinctly. So, if you’re interested, here is the decision; written by Justice Ginsburg with a concurring opinion by Justice Thomas, joined by Justice Alito. The case is Sessions v. Morales-Santana.