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The Supreme Court's sympathy for refugees comes at a cost.

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https://www.bloomberg.com/view/articles/2017-06-22/a-win-for-immigrants-and-a-win-for-liars

What lies should make you lose your citizenship? The question irresistibly combines two of the most contentious issues in the age of Donald Trump: the culture of falsehood and the hot-button problem of immigration. On Thursday, the U.S. Supreme Court weighed in. Its solution bucks the anti-immigration trend by making it harder than before to strip immigrants of their citizenship status. At the same time, the court’s decision further weakens the basic norm of truth-telling.

The facts of the case, Maslenjak v. U.S., perfectly capture the interaction between lies and immigration. Divna Maslenjak is an ethnic Serb from Bosnia who with her husband, Ratko, and two children sought refugee status in the U.S. in 1998.

As part of her asylum application, Divna Maslenjak explained that she feared persecution from Bosnian Muslims because of her ethnic Serbian identity, and persecution from ethnic Serbs because her husband had evaded serving with Bosnian Serb forces by fleeing into Serbia during the years of the conflict following the breakup of Yugoslavia.

Immigration officials granted the asylum petition for all the Maslenjak. Six years later, they applied for citizenship. The application form asked whether Divna Maslenjak had ever given “false or misleading information” while applying for immigration and whether she had ever lied “to gain entry or admission into the United States.” Under oath, Maslenjak answered no to both questions -- and she became a citizen.

After the family’s naturalization, the Maslenjak’s story fell apart. Ratko Maslenjak hadn’t avoided service; he’d actually been an officer in a Bosnian Serb brigade that participated in the Srebrenica massacre of 8,000 Bosnian Muslims.


The government took away Ratko Maslenjak’s citizenship for lying on his immigration documents. And it moved to do the same for Divna Maslenjak, on the ground that she, too, had lied, because she knew her husband had fought with the Bosnian Serb forces.

The federal law that the government used to charge Divna Maslenjak makes it a crime to “procure” your naturalization “contrary to law.” According to the government, Maslenjak procured her naturalization contrary to law by lying under oath on her immigration application when she said she hadn’t lied to get into the country in the first place -- which she had.

Yet remarkably, the U.S. Supreme Court reversed Maslenjak’s conviction. In an opinionby Justice Elena Kagan that met with no dissents, the court held that not just any lie under oath on immigration documents counts as procuring naturalization contrary to law. Rather, Kagan concluded, the lie must be material to getting citizenship: “The illegal act must have somehow contributed to the obtaining of citizenship.”

Kagan offered a complex and (to me) not very illuminating hypothetical to explain her interpretation. 1 But the core idea is that just any old lie on an immigration application won’t lead to criminal conviction and loss of citizenship. As Kagan went on to explain, the lie must have some causal relationship to obtaining citizenship.

In Maslenjak’s case, that still leaves the tricky question of whether her initial lie about her husband or her subsequent lie about having lied would have gotten her asylum application denied. The government lawyers said yes, unsurprisingly. But the court held that Maslenjak would have to get a new trial in which the government would have to prove beyond a reasonable doubt that her lies would have predictably led them to engage in further investigation that would have led to her exclusion.

Kagan also specified that Maslenjak could defend herself successfully if she could show that there was no fact that would disqualify her from citizenship. “We have never read a statute to strip citizenship from someone who met the legal criteria for acquiring it,” she wrote. “We will not start now.” 2

When you think about it, the whole outcome is remarkable. The Supreme Court in the Trump era held that a person can lie repeatedly in immigration proceedings and still not lose her citizenship.

That’s heartening as a matter of judicial independence and unwillingness to bend to contemporary isolationist politics. And if you are sympathetic to immigrants, especially refugees, you may applaud the court’s recognition that it’s hard to find your way through the complex asylum bureaucracy while telling the truth on every particular point.

Yet it’s also true that, morally speaking, the decision rests on the idea that some lies are all right -- that the mere fact of being a baldfaced liar isn’t good enough reason to strip away citizenship. In a political moment where lots of people are lying -- and expressly calling each other liars -- it may be that the simple act of telling the truth is being devalued.

We can all be sympathetic to people who lie under desperation and to improve their family’s lives. But even that sympathy is not free of cost to the value of truth itself.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. Her example was the statement that “John obtained that painting illegally.” The sentence only makes sense, she said, if John used illegal means such as theft to obtain the painting. In contrast, she continued, the sentence “John obtained that painting illegally, but his unlawful acts did not play any role in his obtaining it” was “nonsense” or “a riddle.” See what I mean?

  2. In a minor historical footnote, Justice Neil Gorsuch wrote his first concurrence, stating that while he agreed with Kagan that the lie must be material, he wouldn’t have gone into the details of what the government must prove or the defendant might use in defense, preferring to leave that to the appeals courts. Kagan, who alone among the justices never served on an appeals court, rejoined rather dismissively that the Supreme Court’s job was to provide clarity.
 
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