US Supreme Court alarmed by Trump administration’s merciless stance in Bosnian citizenship case

Concerns raised over government's hard-line attitude in hearing over fate of ethnic Serb Divna Maslenjak, threatened with deportation after telling untruth in application to become US national

The US Supreme Court in Washington, D.C. (Aaron P. Bernstein/Reuters)

Chief Justice John G. Roberts Jr. tried to test the limits of the government’s position at a Supreme Court argument Wednesday by confessing to a criminal offence.

“Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone,” the chief justice said, adding that he had not been caught.

The form that people seeking US citizenship must complete, he added, asks whether the applicant had ever committed a criminal offence, however minor, even if there was no arrest.

“If I answer that question no, 20 years after I was naturalised as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all’?” Roberts asked.

Robert A. Parker, a Justice Department lawyer, said the offence had to be disclosed. Roberts seemed shocked. “Oh, come on,” he said.

The chief justice asked again whether someone’s citizenship could turn on such an omission.

Parker did not back down. “If we can prove that you deliberately lied in answering that question, then yes,” he said.

The exchange was among several moments of indignation and incredulity during the argument in Maslenjak v. United States, No. 16-309. Several justices seemed taken aback by Parker’s unyielding position that the government may revoke the citizenship of Americans who made even trivial misstatements in their naturalisation proceedings.

Justice Anthony M. Kennedy had heard enough.

“Your argument is demeaning the priceless value of citizenship,” he told Parker. “You’re arguing for the government of the United States, talking about what citizenship is and ought to mean.”

Justice Sonia Sotomayor asked about the failure to disclose an embarrassing childhood nickname. Justice Elena Kagan said she was a “little bit horrified to know that every time I lie about my weight it has those kinds of consequences.”

Parker said the law applied to all false statements, even trivial ones.

Justice Stephen G. Breyer said it was “rather surprising that the government of the United States thinks” that the naturalisation laws should be “interpreted in a way that would throw into doubt the citizenship of vast percentages of all naturalised citizens.”

Roberts added that the government’s position would give prosecutors extraordinary power. “If you take the position that not answering about the speeding ticket or the nickname is enough to subject that person to denaturalisation,” he said, “the government will have the opportunity to denaturalise anyone they want.”

The Trump administration has sought to strip the citizenship of a convicted terrorist, and Trump has said that loss of citizenship may be a fit punishment for burning the American flag.

Wednesday’s case concerned Divna Maslenjak, an ethnic Serb who said she had faced persecution in Bosnia. She was granted refugee status at least partly on that basis in 1999 and became a US citizen in 2007.

Along the way, she apparently lied about her husband, saying she and her family had also feared retributions because he had avoided conscription by the Bosnian Serb military. In fact, he had served in a Bosnian Serb military unit, one that had been implicated in war crimes.

When this came to light, Maslenjak was charged with obtaining her citizenship illegally. She sought to argue that her lie was immaterial, but the trial judge told the jury that any lie, significant or not, was enough. Maslenjak was convicted, her citizenship was ordered revoked, and she and her husband were deported to Serbia.

Christopher Landau, a lawyer for Maslenjak, said that the trial judge had applied the wrong standard and that she was entitled to be tried under the right one.

Much of the argument was concerned with what sort of causal relationship the government had to prove between the lie and the grant of citizenship.

Kagan asked Parker, the government lawyer, subtle questions to tease out his position. Then Justice Ruth Bader Ginsburg offered her own approach.

“This may be a simple-minded question,” Ginsburg said, “but how can an immaterial statement procure naturalisation?”

“That’s such a shorter statement of my question,” Kagan said. “It’s perfect.”

Copyright The New York Times