Saturday, April 09, 2016

The Sixth Circuit Decides Immigration and Denaturalization Issues In This Very Informative and Interesting Case

As former Yugoslavia was being torn apart in the 1990s, the United States sent immigration officials to Belgrade to help those fleeing Bosnia and the ethnic cleansing that was taking place during the war.  In April 1998, Divna Maslenjak and her family met with an officer with the United States Immigration and Naturalization, and she was the primary applicant on her family’s asylum application.  She provided under oath that her family feared persecution because her husband failed to serve in the militia during the war.   She also affirmed that she and her husband lived separately from 1992 until 1997 as he remained in Jagodina, Serbia to avoid military service.   Based on her statements, her family was granted refugee status in 1999 and immigrated to the United States in September 2000.  She later obtained lawful permanent resident status in 2004. 

In December 2006, special agents with ICE questioned her husband, Ratko Maslenjak, as part of an investigation of whether he failed to disclose military service in Serbia on his own immigration application.  The investigation revealed that Ratko Maslenjak had served in the Bratunac Brigade of the Army of the Republic Srpska (aka VRS). This was a unit that participated in the genocide of thousands of Bosnian Muslims in 1995.  Mr. Maslenjak was charged with two counts of making a false statement on a government document (18 U.S.C § 1546(a)).  The government argued that he was an officer in this unit though there was no evidence he personally participated in the war crimes. 

A few days after her husband’s arrest, Divna Maslenjak filed an N-400 Application for Naturalization on December 20, 2006.  On the application, she answered “no” to the questions of whether she ever “lied to any U.S. government official to gain entry or admission into the United States” and whether she had “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.”  She was also interviewed under oath and declined to make changes to her application.  On August 3, 2007, she was naturalized as a citizen of the United States. 

Her husband was subsequently found guilty on October 7, 2007 in the United States District Court for the Northern District of Ohio for both counts of violating 18 U.S.C. 1546(a).  He was sentenced to twenty-four months of probation and he was subject to removal. He was taken into ICE custody in January 2009, yet he filed a petition of asylum.  Divna Maslenjak filed on his behalf  Form I-130 Petition for Alien Relative and also testified at his asylum hearing.   At the hearing, she admitted he had served in the military and that they had lived together after 1992.  She also admitted to lying to the immigration officer in 1998 while initially seeking refugee status. 

Based on these admissions, she  was indicted by a federal grand jury with one count of knowingly procuring her naturalization contrary to law in violation of 18 U.S.C.§ 1425(a) based on her “no” answers on the form N-400 Application for Naturalization. She was also indicted for knowingly misusing an unlawfully issued certificate of naturalization in violation of 18 U.S.C. § 1423, when she filed Form I-130 in her attempt to seek a lawful permanent resident status for her husband.  She was found guilty by the jury on both counts and was sentenced to two years’ probation.  The district court also granted the government’s motion to have her naturalization revoked under 8 U.S.C. § 1451(e). 

In United Statesv. Maslenjak (14-3864), she appealed on two issues. 

The first issue was whether 18 U.S.C § 1425(a) contains an implied materiality requirement where a naturalized citizen faces mandatory denaturalization following a conviction under § 1425(a).  If so, she argued the district court instructed the jury improperly. 

The Sixth Circuit explained that the Immigration and Naturalization Act (“INA”)( 8 U.S.C. § 1451) has two alternative procedures for denaturalization, one civil and one criminal.  The civil procedure [8 U.S.C. § 1451(a)] expressly requires proof of materiality, however the criminal procedure [8 U.S.C. § 1451(e)] makes “denaturalization an automatic consequence of a criminal conviction under 18 U.S.C § 1425. 

The Sixth Circuit found based upon the plain language of 18 U.S.C. § 1425, and the overall statutory scheme for denaturalization that proof of  a material false statement is not required to sustain a conviction.   Thus, the Sixth Circuit held that the district court provided a correct statement of law when it instructed the jury “that making a false statement under oath in an immigration proceeding was ‘contrary to law’ and violated 18 U.S.C. § 1425(a) if the act of making a false statement violated the immigration laws, regardless of whether the statement was material.”  This particular instruction tracked the language of 18 U.S.C. § 1015(a).

Divna Maslenjak’s second appellate issue was whether the district court erroneously instructed the jury that it could convict her if they jury found she lacked good moral character.   8 U.S.C. §1427(a)(3) establishes that ‘good moral character’ is a requirement for naturalization, and 8 U.S.C. § 1101(f)(6) provides that “no one can be found to be a person of ‘good moral character’ if the person ‘has given false testimony for the purpose of obtaining any benefit’ under the INA.”  The jury instruction provided that she did not satisfy this ‘good moral character’ requirement of 8 U.S.C. § 1427(a) “if the government could show that she had given ‘false testimony for the purpose of obtaining any immigration benefit.”   She raised various arguments regarding this issue but ultimately the Sixth Circuit held that the district court did not abuse its discretion because the instructions, taken as a whole, accurately reflected the law.  

The judgment was affirmed. 

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