Divna Maslenjak v. United States – a victory for immigrants
Jin Kong is a guest research fellow with The Greater Cincinnati World Affairs Council (GCWAC) for the next six months. This fellowship is sponsored by The Mission Continues. Through this fellowship, Kong is researching to gain a better understanding of the populist sentiment towards immigrants in the Cincinnati region. This is one blog of many on his research of immigration and Cincinnati. To learn more about Jin Kong click here.
Bosnia is an important country in terms of our immigration debate for exceptionally “American” reasons.
The United States Supreme Court on June 22, 2017, issued the opinion re Divna Maslenjak v. United States (read the decision here). At the heart of this decision is a 53-year old ethnic Serb woman called Divna Maslenjak.
Divna lived in Bosnia during the 1990’s. Her and her husband sought refugee status in the United States in 1998. In her refugee application, she stated under oath that her family feared persecution from both the Muslims and Serbs. Information later revealed that she knew her husband was serving as an officer in the Bosnian Serb Army.
The United States government stripped her of her citizenship and deported her. The government argued that she had illegally procured her citizenship and she made a false statement in her naturalization application certifying that she had not lied to the government.
Divna argued that the government should have had to prove her false statement was “material” or that it could affect the immigration officials’ decision about her naturalization. Her attorney argued vehemently that she “at least deserved a chance to have the jury decide … .”
“In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” – the Sixth Amendment to the United States Constitution
This is an important decision. The Supreme Court’s holding in this case is not substantively ground breaking. The Court did not say that Divna should get her citizenship back right away even though she lied, or that she could even get it back. All the Court said was for the lower courts to try again. This decision is a procedural one. The matter is remanded back to the lower courts because they had made a mistake and violated Divna’s rights to her “priceless value of citizenship.” In reaching this conclusion, the Justices expressed concern for giving the government too much discretion regarding citizenship. The Justices noted that opportunity for prosecutorial abuse is ripe given the wide range of questions on the naturalization form that an immigrant must answer. For Chief Justice Roberts, this extraordinary power is near unlimited for the government to do as they please. It can even be used to target groups of immigrants one at a time, seemingly began with the Bosnians? This is not what Congress intended and not what is in the language of the statutes.
I like this decision. It is beautifully simple. It protects the United States Constitution in the most needed way at this critical junction of our history – a chaotic digital Twitter age in madness.
This decision is not a win for Divna because the jury may very well still find her lie about her husband’s military service was enough to revoke her citizenship. It is not a win for the government either. It’s a check on the power of the executive branch, exactly what the courts are supposed to do. For that, I am happy to see this decision was unanimous (with varying opinions). But for the Bosnian immigrants living here, and all immigrants of this nation, this decision is a win. It is an assurance that this country still is an exciting experiment governed by the spirit of laws shaped by its people, not some sovereign entity with puppet courts and armies.
Yet as with all experiments, we still have many opportunities to fail at it; lest we try our best to really strive for something exceptionally American?
The blog is in part of the Mission Continues blog series, written by Jin Kong and therefore all words and thoughts are his own and not a reflection of GCWAC.