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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2017

## Text

Suacceie Coun, U.S
pECOR —
we NOV 23 2016
NE

=O) OFFICE OF THE CLERK _
No. 16-309

pS ________4H#—
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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0703%3A03. Public record. Not legal advice.