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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