United States v. Divna MaslenjakUnited States v. Divna Maslenjak
COUNSEL
ARGUED: Zimra Payvand Ahdout, KIRKLAND & ELLIS LLP, New York, New York, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON SUPPLEMENTAL BRIEF: Zimra Payvand Ahdout, KIRKLAND & ELLIS LLP, New York, New York, Christopher Landau, P.C., Patrick Haney, Jeff Nye, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
*The Honorable S. Thomas Anderson, United States District Judge for the Western District of Tennessee, sitting by designation.
JULIA SMITH GIBBONS, Circuit Judge. Divna Maslenjak immigrated to the United States as a refugee in 2000. Maslenjak claimed that she and her family feared for their safety because they faced “persecution from both sides of [Bosnia‘s] national rift.” Maslenjak v. United States, 137 S. Ct. 1918, 1923 (2017). She said that Bosnian Muslims would persecute her family because of their ethnicity, and Bosnian Serbs would persecute her family because her husband had evaded conscription into the Bosnian Serb army. But part of Maslenjak’s story was untrue. In fact, Maslenjak’s husband had not only served in the Bosnian Serb army but was an officer in a brigade implicated in war crimes.
Six years later, when Maslenjak applied for naturalization, she again lied to immigration officials. This time, Maslenjak’s lies “concerned her prior statements to immigration officials: She swore that she had been honest when applying for admission as a refugee, but in fact she had not.” Id. at 1930. In August 2007, Maslenjak was naturalized as a citizen of the United States.
Based on her lies during the naturalization process, Maslenjak was charged with and convicted of two crimes: (1) unlawful procurement of naturalization or citizenship, in violation of
The Supreme Court reversed. It held that lies told in the immigration process
Because the government has not proven beyond a reasonable doubt that a properly instructed jury would have convicted Maslenjak, the instructional error was not harmless. We therefore vacate Maslenjak’s conviction and remand to the district court for a new trial.
I.
Petitioner Divna Maslenjak is an ethnic Serb who was raised in what is now Bosnia. Yugoslavia collapsed in the 1990s and began splitting into multiple countries along religious and ethnic lines. Bosnia was a new country formed by the split. Bosnia was primarily made up of three ethnic groups: Bosnian Muslims, Bosnian Serbs, and Bosnian Croatians. A civil war arose between the three ethnic groups and the Bosnian Serbs formed their own army, the “VRS,” with the goal of establishing an independent state.
In 1998, Maslenjak and her family met with an American immigration officer in Belgrade to apply for refugee status. Maslenjak, who was the primary applicant for refugee status, explained in the application interview that her family feared persecution on multiple fronts. She stated that in 1992 the entire family had been forced to flee their home in Bosnia because of ethnic cleansing by Bosnian Muslims in the area. The family left Bosnia for a neighboring country for a short period of time. Then, Maslenjak said, she and the children returned to a majority-Serb area of Bosnia, but they had to leave her husband—Ratko Maslenjak—behind because he feared he would be conscripted into the Bosnian Serb army. As a result, Maslenjak stated, she and her children lived apart from her husband from 1992 to 1997. Thus, at the time of their application, the Maslenjaks couldn‘t return to their home in a majority-Muslim area of Bosnia because of persecution based on their ethnicity. And, according to Maslenjak, they also couldn‘t live as a family in a majority-Serb area of Bosnia because they feared retaliation for her husband‘s failure to serve in the Bosnian Serb army during the war. The Maslenjaks swore and affirmed that the information they provided in the refugee interview was true.
The parties do not contest that many of Maslenjak’s statements in the refugee interview were false. In actuality, Maslenjak’s husband lived with the rest of the family and served in the VRS from 1992 to 1997. During that time, Maslenjak’s husband was an officer in a VRS brigade which perpetrated a 1995 genocide of 5,000 to 7,000 Bosnian Muslims in a United Nations safe zone.
Nevertheless, based on Maslenjak’s interview, the family was granted refugee status in 1999 and moved to Ohio in 2000. Maslenjak obtained lawful permanent resident status in 2004.
In 2006, Maslenjak filed an N-400 Application for Naturalization. At the same time, she was interviewed and verbally asked the same questions as those on the
(23) Have you ever given false or misleading information to any U.S. government official while applying for any immigration benefit or to prevent deportation, exclusion or removal?
(24) Have you ever lied to any U.S. government official to gain entry or admission into the United States?
CA6 R. 18, Appellant Appx., at 17. Maslenjak answered “no” to both questions. Her naturalization application was approved, and she became a United States citizen on August 3, 2007.
One month later, her husband was convicted in the Northern District of Ohio of making false statements on government documents by failing to report that he served in the VRS during the Bosnian War. The criminal conviction made Maslenjak’s husband subject to removal from the United States, and he was subsequently taken into ICE custody. He then filed a petition for asylum.
Relying on her own naturalization status, Maslenjak filed an I-130 Petition for Alien Relative—a form only naturalized persons can submit—supporting her husband’s asylum petition. In 2009, Maslenjak testified at her husband’s immigration proceeding that, contrary to her representations in connection with her 1998 application for refugee status, her husband had lived with the family in Bosnia and served in the VRS after 1992.
A federal grand jury indicted Maslenjak in 2013 on two counts: (1) unlawful procurement of citizenship or naturalization, in violation of
A jury convicted Maslenjak on both counts in 2014. The district court sentenced Maslenjak to two years of probation, and, based on her conviction, revoked her citizenship pursuant to
On appeal, the main issue was whether
At trial, the district court instructed the jury that to find Maslenjak had violated
The Supreme Court granted certiorari. It vacated this panel’s judgment, holding that the jury instructions were erroneous because they omitted a materiality requirement. Maslenjak, 137 S. Ct. at 1930–31. The Court explained that the district court erred by instructing the jury “that it could convict based on any false statement in the naturalization process, . . . no matter how inconsequential to the ultimate decision.” Id. at 1930. “The issue a jury must decide in a case like this one,” the Court specified, “is whether a false statement sufficiently altered those processes as to have influenced an award of citizenship.” Id. at 1928. The Court remanded to this panel to determine whether the instructional error was harmless. Id. at 1930–31.
II.
The district court‘s omission of an element in the jury instructions “is an error that is subject to harmless-error analysis.” Neder v. United States, 527 U.S. 1, 15 (1999). An error is harmless when the government establishes “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). In other words, the government must prove on appeal that, beyond a reasonable doubt, a reasonable jury would have reached the same verdict without the error. See id. at 18 (“Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?“).
III.
The Supreme Court held that a conviction under
Here, the district court‘s instructional error was not harmless because the government has not proven beyond a reasonable doubt that a properly instructed jury would have concluded either: (1) that the facts Maslenjak misrepresented were themselves disqualifying; or (2) that the misrepresentations prevented an investigation which would have predictably led to the discovery of other disqualifying facts. We therefore vacate Maslenjak’s conviction and remand to the district court for a new trial.
A.
The Supreme Court instructed that the jury could have convicted Maslenjak if “the thing she misrepresented when seeking citizenship . . . were itself a reason to
Under this first, “stand-alone” theory, the government must prove that the misrepresented fact is alone disqualifying. Id. at 1928–29 (“[W]hen the defendant misrepresents facts that the law deems incompatible with citizenship, her lie must have played a role in her naturalization.“). Proof that a naturalization applicant is not of good moral character is a stand-alone disqualifying fact. See
Here, the government has not shown “beyond a reasonable doubt” that the district court‘s erroneous jury instructions “did not contribute to the verdict obtained.” Neder, 527 U.S. at 15 (quoting Chapman, 386 U.S. at 24). The district court instructed the jury that Maslenjak must have acted “knowingly.” DE 62, 4/17/14 Trial Tr. IV, Page ID 1120–21. And the jury found that she did, in fact, act knowingly—that she did not lie out of “ignorance, mistake, accident or carelessness.” Id.
But the purpose for which Maslenjak made the false statements was never an issue at trial; indeed, the record does not directly speak to the purpose for which Maslenjak made the false statements. As the government argues, there is evidence in the record from which a reasonable, properly instructed jury might have inferred that Maslenjak lied for the purpose of obtaining immigration benefits. It is true that lying during an immigration proceeding could give a jury some context as to the purpose of the lie, especially here where Maslenjak‘s lie in connection with her refugee application went to the heart of her application. She both conjured up a reason to fear persecution by the Bosnian Serbs and hid a fact that may have prevented her husband from obtaining refugee status and citizenship. A reasonable juror could find that these lies speak for themselves. But the government’s argument fails when analyzed under the relevant standard of review. The government must prove, beyond a reasonable doubt, that the jury would have found the defendant guilty absent the error. Neder, 527 U.S. at 15. The evidence must be “overwhelming.” Id. at 17. Here, the evidence isn‘t overwhelming. We can’t say that a properly instructed jury would undoubtedly conclude that Maslenjak lied for the purpose of getting immigration benefits, rather than out of embarrassment regarding her husband‘s service in a controversial military unit or out of fear that her family could be retaliated against for his military involvement.1 And lies told out of “embarrassment,
Maslenjak‘s case is easily distinguishable from United States v. Haroon, 874 F.3d 479 (6th Cir. 2017). Like the case at bar, Haroon dealt with a conviction under
Although the instant record contains evidence from which a jury could infer that Maslenjak‘s lies were for the purpose of obtaining immigration benefits, it lacks the “overwhelming” evidence required for this court to conclude that the error is harmless. Neder, 527 U.S. at 17. Moreover, unlike the defendant in Haroon, Maslenjak never conceded that she made a false statement for the purpose of obtaining immigration benefits. See Haroon, 874 F.3d at 483 (“Haroon does not contest that his statements were ‘made with the subjective intent of obtaining immigration benefits.’ ” (quoting Kungys, 485 U.S. at 780)). Haroon therefore does not compel the conclusion that Maslenjak lacked good moral character.
As such, the government has not proven beyond a reasonable doubt that a properly instructed jury would have concluded that Maslenjak‘s false statements negated the “good moral character” requirement for citizenship. The error is therefore not harmless.
B.
As to the second, “investigation-based” theory, the government must make a two-part showing. First, “the Government has to prove that the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials, ‘seeking only evidence concerning citizenship qualifications,’ to undertake further investigation.” Maslenjak, 137 S. Ct. at 1929 (quoting Kungys, 485 U.S. at 774 n.9). Second, the government “need only establish that the investigation ‘would predictably have disclosed’ some legal disqualification.” Id. (quoting Kungys, 485 U.S. at 774). The government does not need to prove “definitively
Here, even if Maslenjak‘s false statements had led to an investigation, such an investigation would not have predictably disclosed disqualifying facts. At trial, a district adjudications officer who interviewed Maslenjak for her naturalization application testified that if Maslenjak had responded “yes” to either question 23 or 24, there would have been further investigation into her application. This investigation likely would have led to the revelation that Maslenjak had lied about her husband‘s military service in her asylum interview. Mr. Maslenjak‘s military service may have been a disqualifying fact for him. But marriage to someone who is in a foreign military is not a fact which would have independently justified denying naturalization for Maslenjak herself. See
IV.
For these reasons, we vacate Maslenjak‘s convictions and remand to the district court for a new trial.