Can the Attorney General Faithfully Enforce the Immigration Laws?

It seems that these days nearly every time you open the newspaper there is a story on the front page that raises an immigration issue. Here’s one that may be less obvious to most, except perhaps the immigration lawyer.

Recently the Washington Post broke a story that raised serious questions as to whether the current Attorney General, made a false statement or committed perjury when he testified at his confirmation hearings. At the hearings the Senator denied having had any encounters with Russian officials. It was later learned through news sources, that he had at least two encounters with Russian officials, one in his Senate office and the other while attending the Republican National Convention in July, 2016. The story set off a firestorm over whether the new Attorney General should recuse himself from any Department of Justice (DOJ) investigation of alleged Russian interference in the 2016 Presidential election including possible contacts with the Trump campaign.

It may not be readily apparent that this controversy has any relevance to immigration and nationality law. I believe that it does for a variety of reasons. The Attorney General enforces the immigration laws through the immigration courts. He is also responsible for representing the government when it opposes someone who is seeking citizenship through naturalization. Similarly the Attorney General is often the one representing the United States whenever it is seeking the revocation of a person’s citizenship through a procedure called denaturalization.

Before getting to the immigration story it’s important to look at the facts that are known in this case. Let’s take a look at an excerpt from the questions and answers at the Attorney General’s confirmation hearing. This excerpt from the transcript was taken from a CSPAN recording of the testimony. As is routine in these situations, before giving his testimony the Senator was administered an oath in which he swore that he would provide “the whole truth and nothing but the truth” under penalty of perjury.

    Sen. Franken: CNN has just published a story, and I am telling you this, uh about a news story that’s just been published I’m not expecting you to know whether or not it’s true or not. CNN just published a story alleging that the intelligence community provided documents to the President-elect last week that included information that “Russian operatives claimed to have compromising personal and financial information about Mr. Trump[”] these documents also allegedly stated “there was a continuing exchange of information during the campaign between Trump surrogates and intermediaries for the Russian government.[”] Now again I am telling you this as its coming out so ah you know, but if its true it’s obviously extremely serious and if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign what will you do?
    Senator Sessions: Senator Franken I am not aware of ah any of those activities. I have been called a surrogate at a time or two in that campaign and I did, not have communication with the Russians, um and I am not able to comment on it.

(emphasis added)

While Senator Franken’s question was about what Sessions would do as Attorney General if he learned of contacts between “anyone affiliated with the Trump campaign” and the Russian government, his response went beyond the question and included several assertions on his part. First that he was “unaware of … any of those activities.” In the second he stated that he had been called a Trump campaign surrogate and that he did not “have communication with the Russians.” Finally he stated that as a result of his other statements he was not able to comment on the question. According to news stories the Senator had at least two encounters with either the Russian government or their intermediaries one of which was at the Republican National Convention in July,2016. As a result of this previously sworn testimony a number of commentators have called on Sessions to resign. Others urged him to recuse or withdraw himself from involvement in any DOJ investigation of the matter of Russian interference in the 2016 election campaign. By the end of last week Sessions had agreed to withdraw from any involvement in the investigation. The calls for Sessions’ resignation and recusal were predicated on the notion that because he had given false statements which amounted to perjury he could not be an impartial overseer of the investigation.

While I believe that determining whether Sessions committed perjury is an important line of inquiry, we also need to look at other issues. Nearly every immigration lawyers has uuuto determine the consequences of a person’s false or misleading statements. In immigration law a serious legal problem arises where an applicant provides false or misleading statements irrespective of whether the false statement was material. In addition when looking at whether a false statement relates to something which is material one needs to look at the impact of the response to the to the questioning that was taking place. If for example Sessions had acknowledged that he had contacts with the Russians would Franken have asked other questions? It could be argued that if Sessions had testified consistent with the news recently published has been learned more recently the Committee would have learned that at least one of those encounters may or may not have been with Sessions in his on the Senate Armed Service’s Committee. Perhaps the Committee might have wanted to explore what transpired during those encounter. Possibly a different response would have allowed the committee to explore the issue of whether the Senator had either knowingly or unwittingly been involved in meddling by the Russians in the electoral process.

The issue raised here was addressed in Kungys v. U.S., a Supreme Court cases involving the denaturalization of an alleged former World War II prison guard accused of executing Lithuania Jewish citizens during the war. Kungys had given false testimony and submitted false documents relating to his date and place of birth in both his naturalization and original visa applications which had enable him to first come to the U.S. The Court in an opinion authored by Justice Scalia held that even though the false statements made by the applicant might not have been material to the underlying application, if it had a natural tendency to influence or cut off a line of inquiry relevant to the naturalization it could be treated as material. In Kungys the Court found that in this case his false statements about his date and place of birth would not meet the requirements for an illegal procurement for denaturalization. But the Court held that the false statements even though not amounting to perjury did reflect on his lack of good moral character. Indeed there is no materiality requirement in determining whether false testimony result in a finding that an applicant lacked good moral character. In Kungys’case a lack of good m establish good moral character at the time of his application could lead to his denaturalization because it is something which is required of all citizenship applicants.

Any prosecutor would explain that it is not easy to get a perjury conviction. As a specific intent crime, it requires proof that the person who was under oath, intentionally provided a false statement about a fact which was material. As a result even where a false statement has been made obtaining a conviction can be very challenging for any prosecutor.

There are a multiple provisions in the immigration laws which impose serious sanctions against those who have provided false statements, misrepresented facts or engaged in other forms of deceptions to obtain an immigration benefit, even where they don’t amount to perjury. A false statement such as the one given by Senator Sessions during his confirmation if perpetrated by someone seeking any immigration benefit would result in a serious sanction – probably the denial of entry, deportation or denial of citizenship.

Insofar as we are looking at the statements made by the current Attorney General we can say that a minimum his statements likely had an impact on the line of questioning and could have led to further important and relevant questioning. Even if the statements did not amount to perjury, were those statements dishonest and befitting what we would expect of our Attorney General. After all the Attorney General is charged with enforcing and interpreting immigration laws intended to combat the very behavior in which he has allegedly engaged.

If you are interested in the statutory references that bear on this discussion they are listed below.

8 U.S.C. 1101(f)(6) – good moral character as defined by under the Immigration and Nationality Act.
8 U.S.C. 1427(a) – the good moral character requirement for naturalization applicants
8 U.S.C. 1451(a) – illegal procurement of naturalization by either by concealment of a material fact or a misrepresentation.

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