During oral arguments before the Supreme Court on Wednesday, U.S. Chief Justice John Roberts said he is opposed to the conclusion that the Trump administration came to in a specific immigration case. Roberts and several other justices on the Supreme Court expressed support for an ethnic Serb immigrant woman, Divna Maslenjak (53), who was stripped of her naturalized citizenship status and deported, along with her husband.
Maslenjak was stripped of her U.S. citizenship because she falsely stated that her husband had not served in the Bosnian Serb army during Yugoslavia’s collapse in the 1990s. Her husband, Ratko Maslenjak (57), served in the Bosnian Serb Army brigade that participated in the notorious 1995 massacre of 8,300 civilian men and boys in the Bosnian town of Srebrenica where 30,000 women, children, and elderly persons were driven from the city.
The justices seemed likely to give Maslenjak a shot at regaining her citizenship. Even while they did not express support for her personally, they were less enthusiastic about the federal government’s action, while expressing federal officials were claiming boundless discretion to strip citizenship on the basis of minor lies.
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The federal government had charged Maslenjak with violating a federal law that authorizes both a fine and a prison sentence for anyone who “knowingly procures or attempts to procure, contrary to any law, the naturalization of any person.” Government attorneys argued that she knew that she had lied to immigration officials when seeking to come to the U.S. as a refugee, and when she applied for citizenship. Maslenjak argued that the government should not divest her of citizenship only because of a lie, saying that it had to be “material” lie, which is to say one that would have affected the immigration officials’ decision in her case.
Material and Immaterial lies
Some of the justices did not see an easy line to draw between material and immaterial lies. Justice Anthony Kennedy told Maslenjak’s counsel, Christopher Landau, that whether a false statement influenced the government’s decision to grant citizenship is sometimes known only after the fact, “You can have a statement that everyone thinks is immaterial, it’s subjectively immaterial, but it might have a causal connection at the end of the day.”
In questioning in the court, Roberts said that stripping Maslenjak of her citizenship would open the door to strip other people of their citizenship far too easily. Roberts was especially concerned that the Trump administration was claiming the authority to revoke citizenship through criminal prosecution for “trivial lies or omissions.” Roberts was nominated to the bench by George W. Bush.
Roberts admitted that he has exceeded the speed limit while driving. He said that if immigrants failed to disclose speeding on a citizenship application form that asks them to list any instances of lawbreaking, they would be posed with possible loss of citizenship. Roberts noted that one question on the naturalization application form asks whether the applicant has “ever committed, assisted in committing, or attempted to commit a crime or offense for which you were not arrested.” “Some time ago,” Roberts said, “outside the statute of limitations, I drove 60 miles per hour in a 55-miles-per-hour zone. I was not arrested.” “Now you say that if I answered that question no, 20 years after I was naturalized as a citizen,” he said, “you can knock on my door and say, guess what, you’re not an American citizen after all.”
Roberts described what he called the Trump administration's stance as an invitation to "prosecutorial abuse" because the government could easily find reasons for stripping naturalized citizens of their citizenship. "That to me is troublesome to give that extraordinary power, which, essentially, is unlimited power, at least in most cases, to the government," Roberts added.
In 2000, Maslenjak was admitted to the United States with her husband and two children. She was then granted refugee status because she claimed to fear ethnic persecution in Bosnia. She and her family settled in Ohio. She became a U.S. citizen in 2007. Both she and Maslenjak were deported to Serbia last year.
Pocket knives, nicknames, and genocide
Justice Stephen Breyer, a Clinton nominee, compared the Maslenyaks’ violation of the law to bringing a pocketknife into a government building, which he said that he once did. "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.
Justice Sonia Sotomayor -- an Obama nominee -- pushed Parker on whether the failure to disclose a childhood nickname could constitute cause to revoke citizenship. Parker pushed back, giving reassurances that the Trump administration is not interested in childhood nicknames. However, Breyer retorted that, even if Sotomayor’s example could be distinguished, “that isn’t the point.” He said that the point is that the questions on the naturalization application form are “unbelievably broad.” “To me,” Breyer said, “it’s 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 naturalized citizens.”
Justice Kennedy, who was nominated by Ronald Reagan, was also dismissive of DOJ attorney Parker’s argument. He said, "It seems to me that your argument is demeaning the priceless value of citizenship."
Ratko Maslenjak was convicted of document fraud in 2007, but his wife, Divna, obtained citizenship that same year. They were finally deported in October 2016. In the meantime, Ratko Maslenjak received a citizenship award in 2014 from Ohio Treasurer Josh Mandel, a current Republican candidate for the U.S. Senate.