“Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone,” Chief Justice John Roberts said, opening the floodgates of an exercise in the hyperbolic.
Roberts brought up his reformed lead foot to highlight a problem with Question 22 on the immigrant-naturalization form.
With the word in bold, the form asks whether the applicant has “ever” committed, assisted in committing or attempted to commit a crime they were not arrested for.
Justice Clarence Thomas, who seldom asks questions at oral argument and often disappears from view when he leans back in his chair, could be heard chuckling as the chief justice laid into Assistant to the U.S. Solicitor General Robert Parker.
“Now, you say that if I answer that question ‘no,’” Roberts continued, “20 years after I was naturalized as a citizen, you can knock on my door and say, guess what, you’re not an American citizen after all?”
Parker conceded that those kinds of offenses need to be disclosed, according to the government’s interpretation. He later added that, if the government could prove someone “deliberately lied in answering that question,” citizenship can be revoked.
Justice Stephen Breyer balked. “It’s, to me, rather surprising that the government of the United States thinks that Congress is interpreting this statute and wanted it interpreted in a way that would throw into doubt the citizenship of vast percentages of all naturalized citizens,” Breyer said.
The justices carried on with hypothetical examples from failing to disclose nicknames to lying about weight to walking into an immigration hearing with a pocket knife.
“I am a little bit horrified to know that every time I lie about my weight, it has those kinds of consequences,” said Justice Elena Kagan, drawing more laughter.
Careful not to stray into the absurd with the justices, Parker maintained that it is not necessary for the government to prove materiality when it strips an immigrant’s U.S. citizenship for lying during the naturalization process.
If a person lies under oath after swearing to tell the truth, it “calls into question the veracity of your other answers,” Parker said.
It is also of note, Parker added, that denaturalization is not a lifetime bar on citizenship. It only returns a person to lawful permanent resident status. After five years, if a person becomes eligible again, he or she can be renaturalized, Parker said.
For Roberts, however, this argument signaled a problem of prosecutorial abuse.
“That to me is troublesome to give that extraordinary power, which essentially is unlimited power, at least in most cases, to the government,” the chief justice said. “That strikes me as a serious problem.”
Justice Anthony Kennedy took up Roberts’ point as well, telling Parker that his “argument is demeaning the priceless value of citizenship.”
The court assembled this morning to hear the case of Divna Maslenjak, 53, whom the U.S. stripped of citizenship and deported to Bosnia last year after it became known that she had lied during the naturalization process.
At the apex of civil strife in the former Yugoslavia, Maslenjak had told U.S. immigration officials in 1998 that it was too dangerous for her ethnically Serbian family to return to their Muslim-majority Bosnian village. But she also said – falsely, it turned out – that the Bosnian Serb army could force her husband, Ratko, to serve.
In actuality Ratko, 57, had served in a Bosnian militia that was implicated in the genocide of 8,000 Bosnian Muslims, though Ratko was not directly implicated himself.
When immigration officials initiated removal proceedings against Ratko for failing to report his army service, Divna revealed during an ensuing asylum hearing that she had given false answers during the naturalization process.
After she was convicted of illegally procuring her citizenship in 2014, and the Sixth Circuit affirmed, Divna asked the Supreme Court to determine whether the false statement actually impacted the government’s decision to naturalize her.
Christopher Landau, an attorney for Divna at Kirkland & Ellis, highlighted the lack of evidence that Divna lied to get an immigration benefit.
People lie for all sorts of reasons, Landau said, noting that no one knows at this point why she lied about her husband’s military service.
“Our basic position is if the government wants to strip you of citizenship, on the ground that you were not qualified for citizenship that was procured contrary to law, it’s very important for them to show that you would have been qualified if the – would have been disqualified – if the truth had been known,” he added.
Justice Neil Gorsuch noted meanwhile that the word material does not appear in the statute. “It seems like linguistically we have to do some somersaults to get where you want to go,” Gorsuch said.
After Justice Samuel Alito proffered not all ethnic Serbs would qualify for refugee status, Landau noted that Divna’s family had received death threats and their house had stones thrown at it.
The high court will issue a ruling in the case by June.