Department of Homeland Security Mocked While Arguing Absurd Position Before Supreme Court

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In a refreshing display of common sense and candor, the United States Supreme Court Justices mocked the Department of Homeland Security for taking an absurd position in court this week.  According to the New York Times, “the 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 United States 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, Ms. 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. Ms. Maslenjak was convicted, her citizenship was ordered revoked, and she and her husband were deported to Serbia.

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

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

‘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 American citizenship must complete, he added, asks whether the applicant had ever committed a criminal offense, however minor, even if there was no arrest.

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

 Robert A. Parker, a Justice Department lawyer, said the offense had to be disclosed. Chief Justice Roberts seemed shocked. ‘Oh, come on,’ he said.
The chief justice asked again whether someone’s citizenship could turn on such an omission.

Mr. 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 Mr. Parker’s unyielding position that the government may revoke the citizenship of Americans who made even trivial misstatements in their naturalization proceedings.

Justice Anthony M. Kennedy had heard enough.

‘Your argument is demeaning the priceless value of citizenship,’ he told Mr. 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.’

Mr. 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 naturalization laws should be ‘interpreted in a way that would throw into doubt the citizenship of vast percentages of all naturalized citizens.’

Chief Justice 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 denaturalization,” he said, “the government will have the opportunity to denaturalize anyone they want.'”

Refreshing, to say the least!