If you want to get a feeling for the discussion, read the
Oral Arguments. FYI, the justices start questioning Mr. Parker on the meaning of "scrupulously comply" almost immediately when he starts his oral argument (page 27 - prior to this were oral arguments for Mr. Landau, opposing attorney). They refer to page numbers in his brief. So, they probably found some troubling aspect of potential government overreach in his brief. I haven't read his brief, so I don't know for sure. But Mr. Parker appears to be arguing that Congress intended the interpretations to be strict, even for trivialities.
Page 27-30
CHIEF JUSTICE ROBERTS
But, scrupulously,
I -- I looked at -- on the naturalization form, there is
a question. It's Number 22. "Have you ever" -- and
they've got "ever" in bold point --
MR. PARKER: Uh-huh.
CHIEF JUSTICE ROBERTS: -- "committed,
assisted in committing, or attempted to commit a crime
or offense for which you were not arrested?"
Some time ago, outside the statute of
limitations, I drove 60 miles an hour in a
55-mile-an-hour zone.
(Laughter.)
MR. PARKER: I'm sorry to hear that.
CHIEF JUSTICE ROBERTS: I was -- I was not
arrested.
Now, you say that 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.
MR. PARKER: Well --
CHIEF JUSTICE ROBERTS: Is that right?
MR. PARKER: If -- well, I would say two
things. First, that is how the government would
interpret that, that it would require you to disclose
those sorts of offenses
...
CHIEF JUSTICE ROBERTS: -- I drove over 55.
MR. PARKER: Right. You are aware that that
happened. You are aware that a truthful answer to that
question would require you to disclose that. And yet,
notwithstanding the fact that you had taken an oath to
truthfully answer that question, you chose to
deliberately lie. And if -- if all of those things
could be proved beyond a reasonable doubt -- and that's
an awful lot of ifs, and I think that --
CHIEF JUSTICE ROBERTS: No, it's not a lot
of ifs. I knew that I drove over 60.
MR. PARKER: Uh-huh.
CHIEF JUSTICE ROBERTS: Okay. I understand
the question. I saw that it even says "ever."
MR. PARKER: Uh-huh.
CHIEF JUSTICE ROBERTS: I researched it in
Black's Law Dictionary and it said an offense --
(Laughter.)
CHIEF JUSTICE ROBERTS: -- no matter how
minor. The conditions that you set forth were fully
satisfied, and I would say fully satisfied in
everybody's case who don't -- who drives at -- at -- at
any time. And your position is still, you answer that
question no, we can take away your citizenship.
MR. PARKER: If we can prove that you
deliberately lied in answering that question, then yes
They talk about some other scenarios here, such as nicknames and weight.
pages 34-36
MR. PARKER: There are a number of answers
that could be given in the naturalization process that
could be false and might seem to be, in isolation,
immaterial, completely immaterial, for example. I mean,
you could, you know, lie about your weight, let's say.
You're embarrassed that you weigh 170 pounds and so you
claim that you weigh 150.
The point, though, is, Congress has
specifically attended to all false statements under oath
in these types of proceedings. It has specifically
provided that it is a crime to lie under oath in the
naturalization process, even about an immaterial matter,
and it has provided that certain of those immaterial
lies are categorical bars to naturalization
...
MR. PARKER: I -- I was just going to say
that there are a number of reasons why Congress did not
want to require that the government prove that a
particular lie is material or immaterial in this
context, and I -- I think it's important to understand
what those are.
The first is, when an individual lies,
even -- remember, this has to be a lie under oath after
you've sworn that you will tell the truth and you are
deliberately lying about something, it calls into
question the veracity of your other answers, and that is
very important in the naturalization process, for the
reason --
...
JUSTICE KAGAN: Although I am a little bit
horrified to know that every time I lie about my weight,
it has those kinds of consequences.
(Laughter.)
MR. PARKER: Only -- only under oath
Basically, the Justices were asking about absurd scenarios, and Mr. Parker admitted those scenarios were not absurd, but plausible.
Part of the problem appears to be that his brief says "procuringing naturalization contrary to law", without specifying what laws, leaving the interpretation open to any law. When asked, he summed it up with this on page 42:
But what Congress was concerned here with is
not what people lied about; rather, it was the fact that
they lied.
Then this exchange on page 44
JUSTICE BREYER: Oh, I know -- I know you
say Congress said that. But the question, of course,
for us is whether Congress said that. And we have some
words. So I want to know if those words, in your mind,
are capable of any interpretation that suggests any kind
of tendency of the unlawful act to move an immigration
judge -- if not this one, some other one -- towards a
plus decision.
MR. PARKER: I -- I don't think so, because
Congress has said, for example, that even -- and -- and
this was the Court's decision in Kungys -- that even an
immaterial false statement about the most immaterial of
matters can be a categorical bar to the abilities --
ability of the person to be naturalized.
They discuss more semantics, about what's illegal, and Mr. Parker says illegality isn't even relevant on Page 46
JUSTICE KAGAN: So the idea that procuring
naturalization illegally somehow includes illegal acts
that have no effect on naturalization, or on procuring
naturalization, it's -- it's just not how we use
language.
How could it be that that is true?
MR. PARKER: But it's not. Well, my
disagreement there is that it is not that it has no
effect. The effect, though, is the fact that the person
lied. It is not what the person lied about.
JUSTICE KAGAN: But it has -- but it has no
effect on the decision to naturalize.
MR. PARKER: Whether a truthful answer would
have had an effect on the decision to naturalize versus
an untruthful one? I -- I think that Congress has said
quite clearly that that is not the relevant
consideration for purposes of these -- applying these
statutes.
MR. PARKER: Well, I think that the
reference to being entitled in subsection (b) reinforces
our point that "contrary to law" doesn't necessarily
mean that you weren't entitled to the naturalization.
It means that you violated the rules that Congress had
set forth governing who can be naturalized and how they
must do to.
The crux of the issue for abuse comes up in pages 53-54
JUSTICE BREYER: Your interpretation on that
interpretation, and on your interpretation of 1425, and
the words that say in 1451, "shall be deprived of his
citizenship." Given the seriousness of that, your
interpretation would raise a pretty serious
constitutional question, wouldn't it?
MR. PARKER: I don't think so.
JUSTICE BREYER: It's not a serious
constitutional question of whether an American citizen
can be -- have his citizenship taken away because 40
years before, he did not deliberately put on paper what
his nickname was or what -- or what his speeding record
was 30 years before that, which was, in fact, totally
immaterial. That's not a constitutional question?
MR. PARKER: Well, I -- I don't think so,
because Congress has, number one, specified that
immaterial false statements are grounds for denying
naturalization. But I also would note that -- I mean,
there are a few responses. One is, the criminal
provision, at least, has a 10-year statute of
limitations, so it wouldn't be 40.
But I -- I think that it's important to
remember that denaturalization is not, like, a lifetime
bar on -- on citizenship. All denaturalization does, is
it returns you to the status of a lawful permanent
resident. You then have to wait 5 years, and if after
the end of those 5 years, you can demonstrate that
you're -- that you're entitled to citizenship, you can
be renaturalized. It also doesn't --
CHIEF JUSTICE ROBERTS: I don't think this
is problem of -- of a constitutional statute, but it is
certainly a problem of prosecutorial abuse. If you take
the position that refusing to -- not answering about the
speeding ticket or the nickname is enough to subject
that person to denaturalization, the government will
have the opportunity to denaturalize anyone they want,
because everybody is going to have a situation where
they didn't put in something like that -- or at least
most people.
And then the government can decide, we are
going to denaturalize you for other reasons than what
might appear on your naturalization form, or we're not.
And that to me is -- is troublesome to give that
extraordinary power, which, essentially, is unlimited
power, at least in most cases, to the government.
MR. PARKER: Well, I --
CHIEF JUSTICE ROBERTS: That strikes me as
a serious problem.
Mr. Landau, the opposing attorney, finishes with this in his rebuttal:
...we have to assume that this -- the --
the government -- you have to look at how the harshest
prosecutor in the land will apply this. And I think the
questioning today makes it chillingly clear that the
government's position in this case would subject all
naturalized Americans to potential denaturalization at
the hands of an aggressive prosecutor.
That is not what Congress intended. That is
not what is in the language of the statute. Nothing in
the statute compels this Court, that -- this would be
breaking entirely new ground, and we urge this Court no
to go there.
Posted: Thu Apr 27, 2017 2:10 pm