Opposition Brief — Maslenjak v. United States, 137 S. Ct. 809 (2017) (No. 16-309)

Suacceie Coun, U.S

pECOR —

we NOV 23 2016

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=O) OFFICE OF THE CLERK _

No. 16-309

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In the Supreme Court of the Gnited States

DIVNA MASLENJAK, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

IAN HEATH GERSHENGORN

Actiny Solicitor General

Cannsel of Record

LESLIE R. CALDWELL

Assistant Attorney General

JOHN P. TADDEI

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a conviction under 18 U.S.C. 1425(a) for

knowingly procuring naturalization contrary to law,

based on misrepresentations in the defendant’s appli-

cation for naturalization, requires proof that the mis-

representations were material.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002)............ 14

Kungys v. United States, 485 U.S. 759 (1988).................... 14

Neder v. United States, 527 U.S. 1 (1999).............00. 9, 18, 19

Skilling v. United States, 561 U.S. 358 (2010).................... 11

United States v. Abuagla, 336 F.3d 277 (4th Cir.

int isinaiensacioidarsiceainenendiiisbciesaeheteiiiaiindaiaidetimagineparstasidnsiansantentoncepioe 12

United States v. Aladekoba, 61 Fed. Appx. 27

ER A Re ee 17

United States v. Alameh, 341 F.3d 167 (2d Cir. 2003)...... 12

United States v. Alferahin, 433 F.3d 1148 (9th Cir.

Thoratec hii hcieaectt het abeheanta inal bch nh dieceibeablehibsabeiniabapeteniesesnede 16

United States v. Damrah, 412 F.3d 618 (6th Cir.

RETR SEEE SSSRRIPSN OR eLIP Teer SDS SO 12

United States v. Latchin, 554 F.3d 709 (7th Cir.

2009), cert. denied, 558 U.S. 1116 (2010)... eee 17

United States v. Mensah, 737 F.3d 789 (1st Cir.

2013), cert. denied, 134 S. Ct. 1912 (2014)... ee 17

United States v. Munyenyezi, 781 F.3d 5382

(1st Cir.), cert. denied, 136 S. Ct. 214 (2015)........ 12, 16, 17

United States v. Puerta, 982 F.2d 1297 (9th Cir.

AS EEE SEER PES de AEs Ae vy 7, 16

United States v. Shabani, 513 U.S. 10 (1994) 0... cece eee i)

United States v. Wells, 519 U.S. 482 (1997)................ 8, 9, 10

(IIT)

Case— Continued: Page

United States v. Youssef, 547 F.3d 1090 (9th Cir.

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Statutes:

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Jn the Supreme Court of the United States

No. 16-309

DIVNA MASLENJAK, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The decision of the court of appeals (Pet. App. la-

39a) is reported at 821 F.3d 675.

JURISDICTION

The judgment of the court of appeals was entered

on April 7, 2016. A petition for rehearing was denied

on May 27, 2016 (Pet. App. 40a). On August 3, 2016,

Justice Kagan extended the time within which to file a

petition for a writ of certiorari to and including Sep-

tember 26, 2016. The petition for a writ of certiorari

was filed on September 8, 2016. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Ohio, petitioner

was convicted on one count of knowingly procuring

naturalization contrary to law, in violation of 18 U.S.C.

1425(a), and one count of knowingly using an unlawful-

(1)

2

ly issued certificate of naturalization, in violation of 18

U.S.C. 1423. Pet. App. 2a. The district court sen-

tenced petitioner to two years of probation and re-

voked her naturalization under 8 U.S.C. 145l(e). Pet.

App. 6a. The court of appeals affirmed. /d. at 38a.

1. Petitioner is an ethnic Serb and a native of what

is today the nation of Bosnia, formerly part of Yugo-

slavia. Pet. App. 3a. Petitioner was born in a predom-

inantly Serbian village, but Muslims made up the

majority of the population in the surrounding region,

resulting in clashes with ethnic Serbs like petitioner

and her family. Jbid. In 1992, petitioner briefly

moved with her family from her home village to the

Serbian city of Belgrade but returned to Bosnia soon

after. /bid. As the breakup of Yugoslavia accelerated

in the 1990s, and conditions in Bosnia deteriorated,

the United States sent immigration officials to Bel-

grade to assist refugees fleeing Bosnia and the ethnic

cleansing taking place there. /bid.

In April 1998, petitioner and her family met with an

American immigration official in Belgrade to seek

refugee status based on their fear of persecution in

their home region of Bosnia. Pet. App. 3a. Petitioner

was the primary applicant on her family’s asylum

application. /d. at 3a-4a. She stated under oath that

her family feared persecution because her husband,

Ratko Maslenjak, did not serve in the Bosnian Serb

army during the civil war. /d. at 4a. Petitioner swore

that when she returned to Bosnia with her children in

1992, her husband had remained in Serbia to avoid

conscription into the Bosnian Serb army. /bid. Peti-

tioner claimed that, as a result, she and her husband

had lived apart from 1992 to 1997. Jbid. Based on

those representations, petitioner and her family, in-

3

cluding her husband, were granted refugee status and

immigrated to the United States in 2000, where they

settled in Ohio. Jbid. In 2004, petitioner obtained

lawful permanent resident status. bid.

Several years later, immigration officials discov-

ered that petitioner’s story was false. See Pet. App.

4a. Military records revealed that Ratko Maslenjak

had been an officer in the Bratunac Brigade of the

Army of the Republic Srpska, also known as the Bos-

nian Serb Army or VRS, and that he had served dur-

ing a timeframe that included the unit’s participation

in the 1995 genocide of 8000 Bosnian Muslims, known

as the Srebrenica massacre. J/bid. Petitioner was

present when, in December 2006, immigration officials

questioned Ratko at the family’s Ohio home about his

failure to disclose his military service. J/bid. Soon

after, Ratko was charged with two counts of making a

false statement on a government document and was

arrested. /d. at 4a-5a.

One week after Ratko’s arrest, petitioner filed an

N-400 Application for Naturalization. Pet. App. 5a;

see id. at 65a-74a (copy of application). One of the

questions on the application asked whether she had

ever “given false or misleading information to any

U.S. government official while applying for any immi-

gration benefit or to prevent deportation, exclusion or

removal.” /d. at 72a (question 23). Another question

asked whether petitioner had ever “lied to any U.S.

government official to gain entry or admission into the

United States.” /bid. (question 24). Petitioner falsely

answered “no” to both questions. /bid. Petitioner was

also interviewed under oath about her written an-

swers, but she declined to make any changes when

given the opportunity. Jd. at 5a. In August 2007,

4

petitioner was naturalized as a United States citizen.

Ibid.

In October 2007, Ratko was convicted on both

counts of making false statements on a government

document, rendering him subject to removal from the

United States. Pet. App. 5a. In an effort to avoid

removal, Ratko filed a petition for asylum, and peti-

tioner testified on her husband’s behalf at his asylum

hearing. /bid. During her testimony, petitioner ad-

mitted that she and her husband had in fact lived

together in Bosnia after 1992 and that she had lied

during her 1998 refugee application interview in Bel-

grade. Id. at 5a-6a.

2. Petitioner was charged on one count of “know-

ingly procur[ing], contrary to law, her naturalization,”

in violation of 18 U.S.C. 1425(a). Indictment 1-2; see

Pet. App. 6a. The indictment alleged that petitioner

had “made material false statements” by answering

“no” to questions 23 and 24 on her Form N-400 Appli-

cation for Naturalization, and by “answering the

same” during her naturalization interview, even

though she “then well knew that she had lied to gov-

ernment officials when applying for her refugee status

and her lawful permanent resident status and thereby

gained admission into the United States.” Indictment

1-2. Petitioner was also charged with knowingly mis-

using evidence of naturalization, in violation of 18

U.S.C. 1423, in connection with her attempt to obtain

lawful permanent resident status for her husband.

Pet. App. 6a.

a. At the conclusion of the evidence at trial, the

district court instructed the jury on the elements of

Section 1425(a), as well as the elements of two under-

lying federal laws related to naturalization, 18 U.S.C.

5

1015(a) and 8 U.S.C. 1427(a)(3). Pet. App. 84a-86a.

With regard to Section 1425(a), the court stated that

“ijn order to prove that the defendant acted ‘contrary

to law’ the government must prove that defendant

acted in violation of at least one law governing natu-

ralization.” Jd. at 85a. With regard to Section

1015(a), the court told the jury that a naturalization

applicant is guilty of that offense if he or she “know-

ingly mak[es] any false statement under oath, relating

to naturalization.” /bid. The court further instructed

that a “false statement contained in an immigration or

naturalization document does not have to be material

in order for the defendant to have violated the law in

this case.” Jd. at 86a. Petitioner objected to those

instructions insofar as they did not require the jury to

find that petitioner had made a material false state-

ment under Sections 1425(a) and 1015(a). /d. at 75a-

82a. The court overruled the objection. /d. at 82a.

Next, the district court instructed the jury on 8

U.S.C. 1427(a)(3), which “requires an applicant to

demonstrate that ‘she has been and still is a person of

good moral character.’” Pet. App. 86a. The court

instructed the jury that “[gliving false testimony for

the purpose of obtaining any immigration benefit

precludes someone from being regarded as having

good moral character.” /bid.; see 8 U.S.C. 1101(f)(6).

The court added that “lijf an applicant does not pos-

sess good moral character, the applicant is not enti-

tled to naturalization.” Pet. App. 86a.

b. The jury convicted petitioner on both counts.

Under 8 U.S.C. 145l(e), petitioner’s conviction for

violating Section 1425(a) resulted in mandatory revo-

eation of her naturalization. Pet. App. 6a.

6

3. The court of appeals affirmed. Pet. App. la-39a.

As the court explained, petitioner’s conviction under

Section 1425(a) required proof that she “had obtained

her naturalization ‘contrary to law,’ meaning the gov-

ernment had to prove that her conduct violated at

least one othe: law applicable to naturalization.” Jd.

at 9a. In this case, the government offered evidence

that petitioner had violated two such laws: (1) 18

U.S.C. 1015(a), which prohibits knowingly making a

false statement under oath relating to naturalization;

and (2) 8 U.S.C. 1427(a)(3), which prohibits the natu-

ralization of a candidate who lacks “good moral char-

acter,” defined to include a person “who has given

false testimony for the purpose of obtaining” an immi-

gration benefit, 8 U.S.C. 1101(f)(6). See Pet. App. 9a.

The court of appeals considered and rejected peti-

tioner’s argument that proof of a material false state-

ment was required to sustain a conviction under Sec-

tion 1425(a). Pet. App. 7a, 15a. The court observed

that “the term ‘material’ is found nowhere in

§ 1425(a),” and thus “[a] plain reading of the statute”

indicates that materiality is not an element of the of-

fense. /d. at 8a. The court rejected petitioner’s invi-

tation to “[rjlead[] an implied element of materiality

into” Section 1425(a). Jd. at 9a. Doing so, the court

explained, would be “inconsistent with other laws

criminalizing false statements in immigration proceed-

ings and regulating the naturalization process.” /bid.

Ti e court of appeals also observed that neither of

the predicate offenses on which petitioner’s Section

1425(a) conviction was based—Section 1015(a) and 8

U.S.C. 1427(a)(3)—requires proof of materiality.

Requiring materiality under Section 1425(a) thus

7

“would lead to incongruous legal outcomes.” Pet. App.

10a, 19a; see td. at 18a-19a, 25a.

The court of appeals explained that the lack of a

materiality requirement under Section 1425(a) was

consistent with Congress’s establishment of “a two-

track system for denaturalization.” Pet. App. 10a.

Under one track, denaturalization can occur in a civil

proceeding in which the government is subject to a

lower burden of proof but is explicitly required to

demonstrate “concealment of a material fact.” bid.

(quoting 8 U.S.C. 1451(a)). Under the second track,

invoked in this case, denaturalization is “a mandatory

ministerial act” under 8 U.S.C. 1451(e) that follows a

criminal conviction pursuant to Section 1425(a). Pet.

App. 10a; see id. at 12a-13a. Although conviction

under Section 1425(a) itself does not require the gov-

ernment to prove materiality, the government must

meet the exacting procedural and constitutional re-

quirements of a criminal! prosecution, including prov-

ing the elements of the offense beyond a reasonable

doubt. /d. at 12a-13a.

Finally, the court of appeals recognized that other

circuit courts had suggested or held that Section

1425(a) includes an implied element of materiality, but

it found those decisions “unpersuasive.” Pet. App.

22a. In particular, the court stated that the Ninth

Circuit’s decision in United States v. Puerta, 982 F.2d

1297 (1992), “suffers from a number of problems,”

including that it interprets the phrase “contrary to

law” in a manner that “ignores the fact that other

violations of federal law pertaining to false statements

in immigration proceedings do not require proof of

materiality,” Pet. App. 24a. Other circuits have fol-

lowed Puerta “without engaging in their own analysis

8

of the statutory language,” id. at 23a, or have assumed

that materiality was required based on the parties’

agreement, id. at 22a.

Judge Gibbons concurred in order to express her

“uncertain|ty]” as to “what goal Congress intended to

further by omitting materiality from the elements of

§ 1425(a).” Pet. App. 39a. She nonetheless joined the

unanimous decision because “the view most faithful to

the statute is that materiality is not an element of the

§ 1425(a) offense.” Jbid.

ARGUMENT

Petitioner contends (Pet. 15-24) that materiality is

an element of a conviction under 18 U.S.C. 1425(a) for

knowingly procuring naturalization contrary to law.

Petitioner is incorrect. Section 1425(a) does not re-

quire proof of materiality, and reading that require-

ment into the statute would contravene principles of

statutory interpretation, would conflict with the

scheme of criminal and civil immigration laws, and

would lead to incongruous results. Although some

disagreement exists among the courts of appeals, the

disagreement is far shallower than petitioner suggests

and does not warrant this Court’s intervention.

1. Section 1425(a) prohibits “knowingly procur[ing |}

or attemptling] to procure, contrary to law, the natu-

ralization of any person, or documentary or other

evidence of naturalization or of citizenship.” 18 U.S.C.

1425(a). As the court of appeals noted, “the term

‘material’ is found nowhere in § 1425(a).” Pet. App.

8a. Thus, under “{a] plain reading of the statute,”

materiality is not an element of the offense. /bid.; see

United States v. Wells, 519 U.S. 482, 490 (1997) (de-

clining to infer materiality requirement where statute,

18 U.S.C. 1014, prohibited making a false statement

9

for the purpose of influencing the actions of a bank

but did not “so much as mention materiality”); see also

United States v. Shabani, 513 U.S. 10, 17 (1994) (de-

clining to infer an overt-act requirement into drug

conspiracy statute, 21 U.S.C. 846, where “the plain

language of the statute,” by failing to mention such a

requirement, “reveal[s] that proof of an overt act is

not required”).

a. Petitioner argues (Pet. 16) that reliance on the

plain text of Section 1425(a) “is an overly simplistic

approach to statutory interpretation.” She also con-

tends (Pet. 16-17) that Ҥ 1425(a) requires materiality

through the word ‘procure’” because “an immaterial

false statement that ‘did not influence’ the naturaliza-

tion decision could not possibly have ‘procured’ that

decision.” But she cites no authority establishing in

this context that “procure” inherently requires a ma-

terial false statement or, indeed, a false statement of

any kind. See Pet. App. 24a; see also pp. 12-13, infra.

Unlike the word “fraud,” the word “procure” is not a

common law term that as a matter of presumed con-

gressional intent carries a materiality requirement.

Cf. Neder v. United States, 527 U.S. 1, 22-23 (1999)

(applying that rule to mail fraud, in violation of 18

U.S.C. 1341).

Petitioner’s effort to read into Section 1425(a) a

materiality requirement is similar to an argument that

this Court rejected in Wells, supra. There, the Court

considered whether 18 U.S.C. 1014, which prohibits

“knowingly making any false statement or report for

the purpose of influencing” certain banking decisions,

requires proof that the false statement was material.

519 U.S. at 490 (brackets, citation, and ellipsis omit-

ted). The Court determined that proof of materiality

10

was not required. The Court relied first and foremost

on the statute’s text, observing that “[nJowhere does

[the statute] further say that a material fact must be

the subject of the false statement or so much as men-

tion materiality.” /bid. (footnote omitted). “To the

contrary,” the Court explained, “its terms cover ‘any’

false statement that meets the other requirements of

the statute, and the term ‘false statement’ carries no

general suggestion of influential significance.” /bid.

Especially notable for present purposes, the Wells

Court was unpersuaded by the defendants’ argument

that it should “read|] materiality into the statute to

avoid the improbability that Congress intended to

impose substantial criminal penalties on relatively

trivial or innocent conduct.” 519 U.S. at 498. Focus-

ing on the requirement that the false statement must

be made “‘for the purpose of influencing’ a bank,” the

Court explained that such a statement “will not usual-

ly be about something a banker would regard as trivi-

al.” Jd. at 499. Therefore, the Court concluded, a

“literal reading of the _tatute”—that is, a reading that

did not infer an unstated materiality requirement—

“will not normally take the scope of § 1014 beyond the

limit that a materiality requirement would impose.”

Ibid. The same logic applies to a conviction under

Section 1425(a).

b. Petitioner further contends (Pet. 22) that her

conviction “cannot stand because § 1015(a)—a predi-

cate offense for the § 1425(a) violation in this case—

also requires a material false statement.” Petitioner

is mistaken.

As an initial matter, petitioner’s argument ignores

that the jury was instructed on two predicate offenses:

Section 1015 and 8 U.S.C. 1427(a)(3). See Pet. App.

11

85a-86a. The latter statute prohibits naturalization of

a person who is not “a person of good moral charac-

ter,” which is defined to exclude “one who has given

false testimony for the purpose of obtaining” naturali-

zation, 8 U.S.C. 1101(f)(6). At no point in this litiga-

tion has petitioner alleged that proof of materiality is

required either under 8 U.S.C. 1427(a)(3) or under its

definitional statute, 8 U.S.C. 1101(f)(6), neither of

which mentions materiality. See Pet. App. 25a n.9

(observing that petitioner “has not challenged this

aspect of the jury instructions”). As far as the predi-

cate offenses are concerned, therefore, the verdict is

supported by sufficient evidence on a valid legal theo-

ry, regardless of the materiality of petitioner’s false-

hoods. And for the reasons discussed below, even if

an error in the Section 1015(a) jury instructions exist-

ed in failing to mention materiality, it would be harm-

less. See pp. 17-18, infra; see also Skilling v. United

States, 561 U.S. 358, 414 (2010) (error on one alterna-

tive theory of guilt may be harmless).

In any event, proof of materiality is also not re-

quired under Section 1015(a). That provision punishes

a person who “knowingly makes any false statement

under oath, in any case, proceeding, or matter relating

to, or under, or by virtue of any law of the United

States relating to naturalization.” As the Ninth Cir-

cuit has observed, “Congress’s omission of ‘material’

from § 1015(a), combined with its inclusion of ‘materi-

al’ in a similar statutory provision ({18 U.S.C.]

§ 1001(a)), is evidence of Congress’s expressed intent

not to impose a materiality requirement in § 1015(a).”

United States v. Youssef, 547 F.3d 1090, 1094 (2008);

see id. at 1093 (“As in Wells, § 1015(a) does not in-

clude an express materiality requirement.”). Thus,

12

“lelvery other circuit to consider the question has

reached the same result and held that materiality is

not an element of § 1015(a).” Pet. App. 18a-19a; see

Youssef, 547 F.3d at 1095 (“[WJe do not interpret

§ 1015 to include a materiality requirement.”); United

States v. Abuagla, 336 F.3d 277, 279 (4th Cir. 2003)

(similar). Because neither of the predicate offenses

relied upon in this case requires proof of materiality,

it would be anomalous to read an implied materiality

requirement into Section 1425(a).

Petitioner’s argument is also inconsistent with the

statutory scheme more generally. As the court of

appeals recognized, Section “1425(a) is but one statute

within a broader statutory framework governing de-

naturalization.” Pet. App. 9a. The phrase “contrary

to law” in Section 1425(a) “is broad enough to include

not only violations of the INA’s [Immigration and

Naturalization Act’s| administrative requirements for

naturalization but also any criminal offense against

the United States pertaining to naturalization.” Jd. at

16a-17a. Courts of appeals have thus affirmed convic-

tions under Section 1425(a) that were based on predi-

cate violations of a number of different statutes. See,

e.g., United States v. Munyenyezi, 781 F.3d 532, 536

(1st Cir.) (predicate violation of 18 U.S.C. 1001), cert.

denied, 136 S. Ct. 214 (2015); United States v.

Damrah, 412 F.3d 618, 622-623 (6th Cir. 2005) (18

U.S.C. 1001 and 1015(a)); United States v. Alameh,

341 F.3d 167, 171-172 (2d Cir. 2003) (18 U.S.C.

1546(a)).

Under such a regime—in which the defendant’s

conduct may be alleged as being “contrary to law”

under several different provisions—an implied re-

quirement of materiality makes little sense. For ex-

13

ample, a defendant might knowingly procure or at-

tempt to procure naturalization by bribing an immi-

gration official. Although such conduct would plainly

satisfy the “contrary to law” element of Section

1425(a), see 18 U.S.C. 201(b)(1), it would involve no

false statement or omission to which a materiality

requirement might be applied. Furthermore, as the

court below pointed out, under petitioner’s reading of

the statutory scheme, “a person could violate 18

U.S.C. § 1015(a) by making ‘any immaterial false

statement’ on an application for naturalization but

[would] not be guilty of procuring his naturalization

‘contrary to law’ in violation of 18 U.S.C. § 1425(a),

unless the government could also show that the false

statement was material.” Pet. App. 19a (brackets

omitted). Nothing supports the supposition that Con-

gress intended such an incongruous result.

c. Finally, petitioner argues (Pet. 17-18) that a ma-

teriality requirement should be read into Section 1425

because materiality is an element under the civil de-

naturalization statute, 8 U.S.C. 1451(a). Petitioner is

again mistaken.

As the court of appeals explained, “(t]he INA cre-

ates what are essentially two alternative paths for

denaturalization,” one civil and one criminal. Pet.

App. 10a. First, under 8 U.S.C. 145l(a), a citizen’s

naturalization may be set aside in a civil proceeding if

such “naturalization w{as] illegally procured or wi{as]

procured by concealment of a material fact or by will-

ful misrepresentation.” Second, under 8 U.S.C.

1451(e), denaturalization occurs as an automatic con-

sequence of a criminal conviction under Section 1425.

The difference between those two paths confirms why

14

reading a materiality requirement into Section 1425

would be inappropriate.

By its plain language, the civil denaturalization

provision requires proof that naturalization was pro-

cured “by concealment of a material fact.” 8 U.S.C.

1451(a) (emphasis added); see Kungys v. United

States, 485 U.S. 759, 772-773 (1988). The criminal pro-

vision, in contrast, contains no similar requirement;

and, indeed, petitioner “does not argue that 8 U.S.C.

§ 1451(e) contains an implied element of materiality.”

Pet. App. 13a. Congress’s inclusion of a materiality

requirement in the civil denaturalization provision,

while simultaneously omitting a similar requirement

from the criminal provision, reinforces the conclusion

that Congress also did not require proof of materiality

under the statute that triggers criminal denaturaliza-

tion—namely, Section 1425(a). See Barnhart v. Sig-

mon Coal Co., 584 U.S. 488, 452 (2002) (“[I]t is a gen-

eral principle of statutory construction that when

Congress includes particular language in one section

of a statute but omits it in another section of the same

Act, it is generally presumed that Congress act[ed]

intentionally and purposely.”) (internal quotation

marks omitted).

The different elements for civil and criminal denat-

uralization also reflect the different procedural safe-

guards that apply to those paths. In a civil proceeding

under 8 U.S.C. 1451(a), once the government initially

offers clear and convincing proof that the naturalized

citizen improperly procured naturalization, the burden

shifts to the defendant to rebut a “presumption of in-

eligibility.” Pet. App. lla. Given the burden-shifting

and relatively low standard of proof in such a civil pro-

ceeding, it makes sense that Congress would impose a

15

heightened materiality requirement. Under the crim-

inal path, by contrast, denaturalization will not occur

unless the defendant has been convicted of a criminal

offense under Section 1425. “[A]s in any criminal

prosecution, the government has the burden to estab-

lish the elements of the offense beyond a reasonable

doubt, and the accused has the right to all of the con-

stitutional due process he would otherwise not receive

as part of a civil denaturalization proceeding under

[8 U.S.C.] § 1451(a), including the right not to testify

or put on proof at all.” Jd. at 13a.

Petitioner responds (Pet. 18) that “greater proce-

dural protections are generally required for criminal

as opposed to civil proceedings * * * because crimi-

nal proceedings generally have a more direct adverse

impact on a person’s life, liberty, or property.” Alt-

hough that is true as a general matter, the conse-

quence of a civil proceeding under 8 U.S.C. 1451(a) is

the same as one of the consequences of a criminal

proceeding under 8 U.S.C. 1451(e): the loss of citizen-

ship. Therefore, “for Congress to impose greater sub-

stantive requirements in civil denaturalization pro-

ceedings, where lesser procedural protections are re-

quired,” is not “counter-intuitive” as petitioner claims

(Pet. 18), but instead is “consistent with a two-track

statutory scheme for denaturalization,” Pet. App. 29a.

2. Petitioner asserts (Pet. 1, 15-16) that the deci-

sion in this case conflicts with prior decisions of the

First, Fourth, Seventh, and Ninth Circuits. While

some disagreement between the courts of appeals

does exist, petitioner greatly overstates the conflict.

And in any event, this case would be a poor vehicle to

address whether a conviction under Section 1425(a)

16

requires proof of materiality because petitioner’s lies

plainly were material.

a. The earliest case in support of petitioner’s posi-

tion was United States v. Puerta, 982 F.2d 1297

(1992), in which the Ninth Circuit held that the gov-

ernment was required to prove that the defendant’s

statements were material in order to support a convic-

tion under Section 1425(a). The court’s analysis was

brief and was based primarily on three considerations:

(1) proof of materiality is required in a civil denatu-

ralization proceeding under 8 U.S.C. 1451(a); (2) “the

government agree|d] with Puerta that § 1425(a) im-

plies a materiality requirement”; and (3) the court

believed that “the gravity of the consequences” of

mandatory denaturalization called for a showing of

materiality under Section 1425(a). 982 F.2d at 1301

(citation omitted). In United States v. Alferahin, 433

F.3d 1148, 1155 (2006), the Ninth Circuit reaffirmed

its holding in Puerta, despite the government’s argu-

ment “that Puerta was decided incorrectly and that

§ 1425(a) contains no materiality requirement.” Peti-

tioner is correct that the holding of Puerta is incon-

sistent with the holding in this case.

But the conflict is not widespread. Although peti-

tioner asserts (Pet. 15) that three other courts of

appeals have joined the Ninth Circuit in requiring

proof of materiality for a conviction under Section

1425(a), none of the decisions she cites creates a

square conflict with the decision below. In the First

Circuit’s decision in Munyenyezi, supra, the material-

ity element was not contested on appeal because the

defendant conceded that her “statements were know-

17

ingly made and material.” 781 F.3d at 538 n.6.° In

United States v. Latchin, 554 F.3d 709 (7th Cir. 2009),

cert. denied, 558 U.S. 1116 (2010), the parties

“agree{d] that a false statement has to be ‘material’ to

sustain a conviction” under Section 1425(a) based on a

predicate violation of Section 1001(a). Jd. at 712. But

since Section 1001(a) itself requires proof of a “mate-

rial” falsehood or omission, the parties had no need to

contest—and the court of appeals had no occasion to

decide—whether proof of materiality is required

where, as here, the “contrary to law” element is satis-

fied through the violation of a predicate statute that

does not require materiality. Petitioner’s reliance on

United States v. Aladekoba, 61 Fed. Appx. 27 (4th Cir.

2003) (per curiam), is similarly misplaced. Not only

can an unpublished decision not create a circuit con-

flict, but the Section 1425(a) conviction in that case

was also premised on the defendant’s false statements

in violation of Section 1001(a). See id. at 28.

In sum, only the Ninth Circuit has held, contrary to

the decision below, that materiality is an element of a

Section 1425(a) conviction in a case where the issue

was contested and the predicate statute did not

already require proof of materiality. This Court’s

plenary review, before the courts of appeals have had

an opportunity to choose between Puerta and the

well-reasoned decision below, would therefore be

premature.

* Petitioner does not rely upon the First Cireuit’s decision in

United States v. Mensah, 737 F.3d 789 (2013), cert. denied, 134 S.

Ct. 1912 (2014), and for good reason. In that case, the defendant

was convicted even though the district court had imposed a mate-

riality requirement, id. at 807-808, and so the issue was taken as a

given on appeal.

18

b. Finally, this case is a poor vehicle to address

whether proof of materiality is required for a convic-

tion under Section 1425(a) because petitioner’s mis-

statements to immigration officials plainly were mate-

rial. In 1998, petitioner falsely stated under oath to

immigration officials that her family feared persecu-

tion because her husband had not served in the Bosni-

an Serb army during the civil war. In fact, petition-

er’s husband had been an officer in a unit of the Bos-

nian Serb Army that participated in the Srebrenica

massacre, a genocide of Bosnian Muslims. Petitioner

also swore to immigration officials that she and her

husband had lived apart between 1992 to 1997, when

in fact they had lived together during that time. Pet.

App. 4a. Only a week after her husband’s arrest for

making false statements on a government document,

petitioner lied twice on her naturalization application,

claiming in response to two clifferent questions that

she had not given false or misleading information to

government officials while applying for immigration

benefits. Jd. at 5a.

Petitioner’s lies were material, because they had “a

natural tendency to influence, or [were] capable of

influencing, the decision of” immigration officials.

Neder, 527 U.S. at 16 (citation omitted). Indeed, the

jury heard testimony that, “had [petitioner] answered

those two [naturalization application] questions truth-

fully, there would have been further investigation into

her application for refugee and permanent residence

status, and her application would have been signifi-

cantly delayed and possibly denied.” Gov’t C.A. Br.

21, 27-28 (citations omitted). Therefore, as the gov-

ernment argued below, see id. at 27-29, any error in

failing to instruct the jury on materiality was harm-

19

less. See Neder, 527 U.S. at 7-15 (omission of an ele-

ment is subject to harmless-error analysis).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

IAN HEATH GERSHENGORN

Acting Solicitor General

LESLIE R. CALDWELL

Assistant Attorney General

JOHN P. TADDEI

Attorney

NOVEMBER 2016