United States v. Sevan Amintobia ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50039
Plaintiff-Appellee, D.C. No. 3:18-cr-
03830-JM-1
v.
SEVAN AMINTOBIA, AKA Sevan OPINION
Ameen Charry, AKA Sevan Ameen
Jaary, AKA Sevan Ameen Tobia
Jaary,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted September 14, 2021
Pasadena, California
Filed January 11, 2023
Before: Ronald M. Gould, Marsha S. Berzon, and Daniel
P. Collins, Circuit Judges.
Opinion by Judge Collins
2 UNITED STATES V. AMINTOBIA
SUMMARY *
Criminal Law
The panel affirmed Sevan Ameen Tobia Jaary’s
conviction for attempting to procure naturalization
unlawfully, in violation of 18 U.S.C. § 1425(a), and
presenting a naturalization application with false statements,
in violation of 18 U.S.C. § 1546(a).
Both convictions were predicated on Jaary's answers to
two questions on his naturalization application, in which he
asserted that he had never given false information to a U.S.
Government official and that he had never lied to such an
official to gain an immigration benefit. The Government
contended at trial that those answers were false because
Jaary had obtained asylum in the U.S. based on a false story
that, due to his Chaldean Christian faith, he was threatened
in Iraq in May 2008 and attacked and stabbed in Iraq in
December 2008. In fact, the Government asserted, Jaary
was safely residing in Germany with his brother during the
time that he was supposedly being persecuted in Iraq. On
appeal, Jaary argued that the Government presented
insufficient evidence to establish that any false statements he
made during the asylum process were material to his
subsequent naturalization application and that his Rule 29
motion for judgment of acquittal on both counts should have
been granted.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. AMINTOBIA 3
The panel first addressed the § 1425(a)
conviction. Maslenjak v. United States, 137 S. Ct. 1918
(2017), sets forth two alternative ways in which a
defendant’s false statements would have mattered to an
immigration official and would therefore be material to the
immigration decision. If the facts the defendant
misrepresented are themselves disqualifying from obtaining
naturalization, then the defendant’s lie is plainly
material. But even if the true facts lying behind a false
statement would not in and of themselves justify denial of
citizenship, they would still be material if they could have
led to the discovery of other facts which would do so. Under
this alternative “investigation-based theory,” the
Government must make a two-part showing to meet its
burden. First, it must prove that the misrepresented fact was
sufficiently relevant to one or another naturalization
criterion that it would have prompted reasonable officials,
seeking only evidence concerning citizenship qualifications,
to undertake further investigation. Second, the Government
must establish the prospect that such an investigation would
have borne disqualifying fruit. The Government need only
establish that the investigation would predictably have
disclosed some legal disqualification. The panel concluded
that ample evidence supports the Government’s reliance on
the “investigation-based theory” of materiality. The panel
concluded that, on this record, a rational jury could find,
beyond a reasonable doubt, that a reasonable immigration
judge apprised of the facts about Jaary’s presence in
Germany would have found Jaary not to be credible, and
would have denied asylum, on the ground that the claimed
persecution in 2008 was fabricated and that Jaary thus had
not established that he had suffered past persecution. The
panel concluded that a rational jury could also find that Jaary
4 UNITED STATES V. AMINTOBIA
did not actually have a genuine subjective fear of persecution
on religious grounds and would therefore have been found
ineligible for asylum. Accordingly, the panel concluded that
the Government presented sufficient evidence to permit a
rational jury to conclude on this basis that Jaary would have
been ineligible for asylum and that his false statements on
his later naturalization application were therefore material to
the naturalization decision under an “investigation-based
theory.” The panel therefore affirmed the district court’s
denial of Jaary’s Rule 29 motion with respect to the charged
violation of § 1425(a).
Noting that Jaary did not contend that the materiality
standard for a violation of § 1546(a) is more demanding than
for a violation of § 1425(a), the panel concluded that the
evidence of materiality was necessarily sufficient as to the
§ 1546(a) charge, and therefore affirmed the district court’s
denial of Jaary’s Rule 29 motion with respect to that charge.
COUNSEL
Vicki M. Buchanan (argued), Sonoma, California, for
Defendant-Appellant.
Andrew Y. Chiang (argued) and Valerie H. Chu, Assistant
United States Attorneys; Daniel E. Zipp, Assistant United
States Attorney, Appellate Section Chief, Criminal Division;
Randy S. Grossman, Acting Untied States Attorney; Office
of the United States Attorney, San Diego, California; for
Plaintiff-Appellee.
UNITED STATES V. AMINTOBIA 5
OPINION
COLLINS, Circuit Judge:
Sevan Ameen Tobia Jaary (“Jaary”), an Iraqi citizen, was
convicted of attempting to procure naturalization
unlawfully, in violation of 18 U.S.C. § 1425(a), and of
presenting a naturalization application with false statements,
in violation of 18 U.S.C. § 1546(a). Both convictions were
predicated on Jaary’s answers to two questions on his
naturalization application, in which he asserted that he had
never given false information to a U.S. Government official
and that he had never lied to such an official to gain an
immigration benefit. The Government contended at trial that
those answers were false because Jaary had obtained asylum
in the U.S. based on a false story that, due to his Chaldean
Christian faith, he was threatened in Iraq in May 2008 and
attacked and stabbed in Iraq in December 2008. In fact, the
Government asserted, Jaary was safely residing in Germany
with his brother during the time that he was supposedly
being persecuted in Iraq. On appeal, Jaary argues that the
Government presented insufficient evidence to establish that
any false statements he made during the asylum process
were material to his subsequent naturalization application
and that his motion for judgment of acquittal on both counts
should have been granted. We reject this contention and
affirm his convictions.
I
A
Sevan Jaary is a Chaldean Catholic Christian who was
born in Baghdad, Iraq in 1990. His birth certificate lists his
father’s name as “Ameen Tobia Jaary,” and various
6 UNITED STATES V. AMINTOBIA
documents in the evidentiary record list Jaary’s last name as
either “Jaary,” “Amin Tobia,” “Tobia,” or “Jary.” 1 Because
his U.S. immigration proceedings were conducted under the
name “Jaary”; the translation of one of his Iraqi
identification documents uses that surname; and his counsel
indicated at trial that “Jaary” was his preferred name, we will
generally use that name to refer to him on appeal.
By 2001, Jaary’s two older brothers, Sinan and Sandi,
had left Iraq and were in Germany. The German government
granted Sandi refugee status in approximately 2001, and
eight years later, Sandi became a German citizen. 2 Jaary’s
sister and parents subsequently came to Germany as well,
but they moved to the U.S. in, respectively, about 2004 and
2006. By 2007, Jaary’s sister had become a U.S. citizen, and
by around 2009, his parents had become U.S. lawful
permanent residents through his sister’s sponsorship. In
2007, Jaary’s sister also filed an immigration petition on
behalf of Jaary (who was apparently still in Iraq), but as
Jaary later explained, “the visa waiting time [was] many
years.”
In March 2008, Jaary arrived in Germany from Iraq,
having entered the country, as German immigration officials
put it, “from unknown countries by land.” Upon his arrival,
Jaary requested asylum in Germany. While his asylum
application was pending, Jaary was granted temporary
1
By contrast, there do not appear to be any documents in the evidentiary
record that use the last name of “Amintobia,” which is the name used in
the indictment.
2
After about 14 years in Germany, Sandi married a U.S. citizen, moved
to the U.S., and became a lawful permanent resident.
UNITED STATES V. AMINTOBIA 7
residence by German immigration officials, and he moved in
with his brother Sandi in Freiberg.
Jaary appeared at a hearing on his German asylum
application on April 23, 2008. As the German Federal
Office for Immigration and Refugees (“FOIR”) summarized
his testimony, Jaary claimed that, in Iraq, he had been
“threatened by a masked group he at first did not personally
know”; he “was subsequently threatened on multiple
occasions by phone”; and the group “sought to extort from
him a payment of USD 30,000.” The records of the German
FOIR do not contain any indication that Jaary ever
contended that he had been physically harmed in Iraq.
On August 5, 2008, the German FOIR issued a decision
denying Jaary’s request for asylum. The FOIR noted that,
under the German Asylum Procedure Act, asylum is
unavailable to anyone who enters from a “safe third
country.” Given that Jaary concededly had entered Germany
by land, and given that all countries bordering Germany
were considered safe third countries, he was necessarily
ineligible for asylum.
Nonetheless, in the same decision, the FOIR granted
Jaary “refugee” status under the German Residence Act. As
the FOIR explained, the relief available under the Residence
Act was broader than under the asylum statute in that
(1) Jaary’s passage through a safe third country did not bar
relief under the Residence Act; and (2) the Residence Act
provided protection against “persecution by ‘non-state
actors,’” whereas the asylum statute “requires at least
indirect state or quasi-state persecution.” Although Jaary
had “not produced credible and detailed evidence that he was
subjected to individual persecution” in Iraq “due to his
belonging to a religious minority,” the FOIR concluded that,
8 UNITED STATES V. AMINTOBIA
in light of the available information concerning country
conditions in Iraq, Jaary “would be subject with all
probability to persecution” based on his religion if he were
returned to Iraq. As the FOIR later described this decision,
the granting of refugee status to Jaary was “essentially based
on his membership in the faith community of Chaldean
Christians.” As a result of his refugee status, Germany
granted Jaary a “Humanitarian Residence Permit” that
allowed him to be employed in Germany without restriction,
as well as a travel document that was equivalent to a German
passport. These documents were valid for three years, until
August 19, 2011, and could apparently be extended for
additional periods.
B
Jaary decided not to stay in Germany, however. In the
fall of 2009 he traveled to Mexico, and on November 10, he
walked to the port of entry in San Ysidro, California and
requested asylum. In accordance with the screening
procedures set forth in the expedited removal provisions of
§ 235(b)(1) of the Immigration and Nationality Act (“INA”),
Jaary was interviewed under oath that same day by a U.S.
Customs and Border Protection (“CBP”) Officer. See 8
U.S.C. § 1225(b)(1).
During that interview, which was conducted in the
Chaldean language, Jaary said nothing whatsoever about the
fact that he and his brothers lived in Germany. Jaary instead
claimed that he had just journeyed, with the assistance of
smugglers, from Iraq to the U.S., and he said that his two
brothers lived in Greece, where they lacked legal residence.
Moreover, in seeking asylum in the U.S., Jaary told a very
different story from the one that he had told German officials
after he applied for asylum there in March 2008. Although
UNITED STATES V. AMINTOBIA 9
Jaary had actually been in Germany from March 2008
through fall 2009, he told the CPB officer that in early 2008
he was living in his parents’ house in Baghdad. He claimed
that, due to “the Muslims who constantly threatened the
Christians,” he was forced to “quit school,” and in May 2008
he moved to live with his grandparents in a different section
of Baghdad. Jaary told the CBP Officer that he stayed with
his grandparents until, on Christmas Day 2008, while he was
on his way to church, “Muslim terrorist[s]” “beat [him] up”
and “threatened to kill” him. That same day, he said, he fled
to Mosul, in northern Iraq, and stayed with his aunt there.
But when “[t]he Muslims started executing the Christians
there too,” he arranged to leave Iraq through the assistance
of a smuggler.
The CPB officer asked Jaary about the details of his
journey from Iraq to the U.S. Jaary said that, while he was
in Mosul, he was “introduced by a relative” to an Iraqi
smuggler named “Mukhlis.” Jaary claimed that he met
Mukhlis three times in Mosul and that Mukhlis ultimately
agreed to arrange for Jaary’s travel to Spain for $5,500, with
a $500 deposit to be paid up front. Jaary stated that
thereafter, while carrying a false passport, he “crossed the
border” from Iraq into Turkey “by car” with Mukhlis in early
2009 and that the two of them then “walked for two hours.”
Jaary said that he and Mukhlis eventually made their way to
Istanbul, where he stayed for eight months in an apartment
owned by Mukhlis that housed several other persons being
smuggled. Sometime in early fall 2009, Jaary asserted,
Mukhlis introduced him to a Kurdish smuggler named
“Ziad.” Jaary said that, after Mukhlis supplied him with a
new, fake Polish passport, he flew with Ziad on a Turkish
commercial airline from Istanbul to Madrid. Jaary stated
that they stayed there for about three weeks, and that, while
10 UNITED STATES V. AMINTOBIA
there, Jaary paid Ziad the $5,000 balance of the smuggling
fee. According to Jaary, he and Ziad then flew from Madrid
to Mexico City, where Ziad bought Jaary a bus ticket to
Tijuana. After arriving by bus in Tijuana on November 10,
2009, Jaary walked from the bus stop to the San Ysidro port
of entry. The CBP Officer specifically asked Jaary if he had
“travel[ed] to any other countries” besides the ones that he
had mentioned, and he responded, “No.” Jaary admitted that
he had no entry documents that would allow him to enter the
U.S.
The CPB officer concluded the interview by asking Jaary
why he had left Iraq and whether he feared returning. Jaary
responded that he had fled Iraq because “[t]he Muslims
threatened to kill me if I do not convert to [the] Islamic
faith,” and he stated that he was afraid to return to Iraq and
believed he would be harmed if sent there. Given Jaary’s
expressed fear, the CBP Officer referred him for an
interview with an asylum officer in accordance with INA
§ 235(b)(1)(A)(ii). See 8 U.S.C. § 1225(b)(1)(A)(ii) (stating
that, if an arriving alien expresses “fear of persecution”
during the initial screening interview, “the officer shall refer
the alien for an interview by an asylum officer”).
On January 27, 2010, while still in custody, Jaary was
interviewed by an asylum officer of the U.S. Citizenship and
Immigration Services (“USCIS”), using the services of a
Chaldean interpreter. Jaary repeated the same basic claims
he had made in his initial interview about being attacked on
Christmas Day 2008 in Baghdad and then leaving Iraq in
early 2009 for Turkey, Spain, and ultimately the U.S. In
response to the asylum officer’s questions, Jaary added
additional details about the alleged Christmas Day attack.
Jaary stated that, after finding out that he was a Christian on
his way to Christmas church services, four Muslim men hit
UNITED STATES V. AMINTOBIA 11
and beat him, and one of them stabbed him in the hand. He
said that, after going to the hospital, he left that same day for
Mosul. 3
Based on Jaary’s responses, the asylum officer made a
formal finding that Jaary had a “credible fear of persecution”
if he were to be returned to Iraq. Under INA
§ 235(b)(1)(B)(ii), that meant that Jaary would be allowed to
apply for asylum. See 8 U.S.C. § 1225(b)(1)(B)(ii) (stating
that, “[i]f the [asylum] officer determines at the time of the
interview that an alien has a credible fear of persecution . . .,
the alien shall be detained for further consideration of the
application for asylum”). In finding a credible fear of
persecution, the asylum officer specifically determined that
“[t]here is a significant possibility that the assertions
underlying [Jaary’s] claim could be found credible” in an
asylum hearing. A supervisory asylum officer, Wole Coker,
reviewed and approved this credible-fear determination on
January 28, 2010. Shortly thereafter, Jaary was paroled from
custody under INA § 212(d)(5). See 8 U.S.C. § 1182(d)(5);
3
The asylum officer construed the questions and answers summarized in
the written interview notes as claiming that there were two similar
stabbing attacks, one in May 2008 and one in December 2008. That
surmise does not appear to be supported by the actual questions and
answers. In response to the asylum officer’s specific question about
“[w]hat happened in May 2008,” Jaary mentioned only threats, which is
consistent with the story he told to the CBP Officer. After shifting to a
question about Jaary’s parents, the asylum officer then asked a general
question—i.e., one that was not specific as to time—about whether Jaary
had experienced harm other than threats, and he then recounted being
beaten and stabbed and going to Mosul. Given that Jaary never said
anything about going to Mosul after the May 2008 incident, but only said
that he went to Mosul right after the Christmas Day attack, it seems likely
that he was referring only to a single beating and stabbing that he claimed
occurred on Christmas Day.
12 UNITED STATES V. AMINTOBIA
8 C.F.R. § 212.5.
Represented by counsel, Jaary in May 2010 submitted a
formal application for asylum that included a declaration
from him under penalty of perjury. Jaary’s declaration was
essentially consistent with what he had told the CPB officer
and the asylum officer. With respect to the alleged May
2008 incident, the declaration added the detail that the
threats had been in the form of an anonymous letter left
outside his parents’ front door. As to the claimed December
2008 attack, Jaary’s declaration stated that the “knife wound
. . . was relatively minor and did not require serious medical
attention.” The application itself, which was also signed
under penalty of perjury, stated that his “two brothers in
Greece have applied for asylum but they have not received
anything yet.” In response to the application’s instruction to
list all his residences “during the past 5 years,” Jaary listed
Baghdad, Mosul, and Istanbul, but not Freiberg, Germany.
And in the space on the form asking Jaary to identify the
country that “issued your last passport or travel document,”
Jaary listed “Iraq.”
An individual hearing on Jaary’s asylum application was
held before an Immigration Judge (“IJ”) on September 3,
2010. Jaary testified under oath at that hearing and swore
before the IJ that the contents of his asylum application were
“true to the best of [his] knowledge.” He again repeated the
same essential claims he had previously made concerning
the alleged May 2008 and December 2008 incidents. After
considering Jaary’s testimony and application, the IJ issued
an order granting asylum to Jaary. In orally explaining his
ruling at the September 3 hearing, the IJ stated that, based on
the record, he had “to find Mr. Jaary credible.” In an
uncannily prescient comment, however, the IJ stated that he
had “some suspicion of whether [Jaary] was really in Iraq
UNITED STATES V. AMINTOBIA 13
during these critical events.” He suspected that Jaary, like
“many Iraqis,” may “have left earlier,” traveled to another
country, did not like the “limited” benefits there, and then
moved to “see what they can get in another country.” The IJ
then stated (emphasis added):
However, I don’t have evidence here to make
those conclusions. Those are just suspicions.
I asked questions, [Jaary] answered my
questions basically in a way that I can’t really
say was not satisfactory. So unless the
government has evidence that he was
residing in any other country, I think I have
to grant his [application].
In March 2012, Jaary applied to become a lawful
permanent resident of the U.S. The application was based
on his having been granted asylum in 2010. In his
application, he answered “No” to the question whether he
had, “by fraud or willful misrepresentation of a material fact,
ever sought to procure, or procured, a visa, other
documentation, entry into the United States, or any
immigration benefit.” The application was granted in
August 2012.
Meanwhile, the German FOIR realized that it had lost
track of Jaary. His “whereabouts [were] unknown” to the
agency “since December 26, 2009,” and Jaary failed to seek
renewal of his Humanitarian Residence Permit and German
passport before they were set to expire in 2011.
Accordingly, the FOIR initiated proceedings to revoke
Jaary’s refugee status, serving a letter to that effect at his last
address in Germany in March 2012. After Jaary did not
respond, the FOIR issued a decision formally revoking his
14 UNITED STATES V. AMINTOBIA
refugee status, concluding that his behavior “shows that he
considers the asylum protection to be unnecessary.”
In 2016, Jaary applied to be naturalized as a U.S. citizen.
On the 21-page application, Jaary answered “No” to the
following two questions:
Question 31: “Have you ever given any U.S.
Government official(s) any information or
documentation that was false, fraudulent, or
misleading?”
Question 32: “Have you ever lied to any U.S.
Government official to gain entry or
admission into the United States or to gain
immigration benefits while in the United
States?”
Jaary signed the application under penalty of perjury on
June 17, 2016. Thereafter, during his personal interview
with an immigration officer on March 7, 2017, Jaary swore
and certified under penalty of perjury that the contents of his
application were correct.
C
Jaary’s application for naturalization was never granted.
Instead, in August 2018, Jaary was indicted for
(1) attempting to procure naturalization for himself contrary
to law, in violation of 18 U.S.C. § 1425(a) (Count 1); and
(2) presenting an application for naturalization that
“contained material false statements made under oath,” in
violation of 18 U.S.C. § 1546(a) (Count 2). As framed in the
indictment, both charges rested on Jaary’s alleged false
answers to Questions 31 and 32 on his naturalization
UNITED STATES V. AMINTOBIA 15
application. 4
At trial, the Government provided documentary
evidence from Jaary’s U.S. and German immigration files to
establish the core facts concerning Jaary’s substantive
claims and procedural history in both countries’ immigration
systems. The Government also called Jaary’s brother Sandi
as an adverse witness, and he testified that Jaary was in
Germany as of March 2008 and that Jaary thereafter never
returned to Iraq but instead traveled from Germany to the
U.S.
The Government also called several immigration
officials as witnesses to explain how Jaary’s alleged
misstatements could affect the outcome of the various stages
of U.S. immigration processes. For example, Wole Coker
explained that, if the CBP officer who conducted the initial
interview of Jaary had concluded that Jaary did not have a
“credible fear” of persecution, an IJ would have reviewed
that determination and, if the IJ upheld it, then Jaary would
not have been allowed to apply for asylum. Coker
specifically stated that, if the asylum officer had known that
Jaary was in Germany after March 2008 rather than in Iraq,
that would have affected the asylum officer’s credibility
finding, which in turn would have affected the officer’s
assessment of the “person’s individual experience in the
country” in question. Another USCIS supervisory official,
Preston Prater, similarly explained that, in the process from
credible-fear review to asylum to permanent residence to
citizenship, “each step relies on the step before.” Prater
emphasized that an alien’s credibility is important because,
4
The indictment also rested on Jaary’s answer to a third question, but
the Government did not pursue that theory at trial and it is not before us.
16 UNITED STATES V. AMINTOBIA
in making credible-fear and asylum determinations, agency
personnel “rely strongly on their testimony.” Prater agreed
that, if the agency learned that the alien had provided “false
information about being persecuted in another country,” that
“could” “justify denying naturalization.” As he elaborated,
“if they gave false testimony on their asylum application,
they probably wouldn’t have been approved as an asylee,
which allowed them to apply for adjustment of status [as a
lawful permanent resident], which would lead—lead up
directly to naturalization.” On redirect, Prater reiterated that
if “the foundation or the ground for the asylum was found to
be falsified” that would “be a basis to justify denying
naturalization.”
Prater also stated, without further elaboration, that if an
alien is found to have “lied to obtain immigration benefits,”
that “would make them ineligible” for naturalization. Prater
then answered “Yes” when asked, “If the USCIS found out
that the person had lied to the immigration judge in the
asylum hearing about suffering persecution in their home
country, would that be a reason to justify denying
naturalization?” On cross-examination, he clarified that
both the lie itself and the information revealed by the lie
would be disqualifying: “I would say both. Both the
information that we may find out plus—plus a
misrepresentation would disqualify them.”
Coker also testified that, in making a credible-fear
determination, an asylum officer would want to know
whether the alien had traveled through other countries or had
acquired a legal status there. He stated that “firm
resettlement” in a third country before arrival in the U.S. is
a “possible bar” to receiving asylum, and he said that, if the
asylum officer had known that Jaary had “permission to live
and work in Germany,” that would have affected the
UNITED STATES V. AMINTOBIA 17
officer’s affirmative determination that Jaary was not subject
to such a “firm resettlement” bar. At a minimum, an officer
who learns that an alien has acquired status in another
country would want “to explore why [he or she] can’t return
to that particular country.”
After the close of the Government’s case, Jaary moved
for judgment of acquittal under Federal Rule of Criminal
Procedure 29, arguing that there was insufficient evidence to
support a conviction, but without identifying any further
specific ground for the motion. The district court denied the
motion. During closing arguments, Jaary’s counsel
conceded that Jaary “made a misrepresentation,” he “lie[d],”
he “left out the part about Germany,” and that “he concealed
that fact.” Jaary argued, however, that the Government had
failed to establish that the lies were material to the
naturalization decision.
The jury found Jaary guilty on both counts. In its verdict,
the jury made a special finding that the responses to
Questions 31 and 32 were both false and that the finding of
guilt as to each count rested on both responses. The district
court sentenced Jaary to six months imprisonment, followed
by three years of supervised release. Jaary filed a timely
notice of appeal, and we have jurisdiction under 28 U.S.C.
§ 1291.
II
We review the district court’s denial of Jaary’s Rule 29
motion for judgment of acquittal de novo. United States v.
Aubrey, 800 F.3d 1115, 1124 (9th Cir. 2015). We view the
evidence in the light most favorable to the Government and
must affirm if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir.
18 UNITED STATES V. AMINTOBIA
2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979) (original emphasis in Jackson)). “[W]hen ‘faced
with a record of historical facts that supports conflicting
inferences[,]’ a reviewing court ‘must presume—even if it
does not affirmatively appear in the record—that the trier of
fact resolved any such conflicts in favor of the prosecution,
and must defer to that resolution.’” Id. (quoting Jackson,
443 U.S. at 326).
III
Jaary’s first count of conviction was for violating 18
U.S.C. § 1425(a). That section makes it a crime to
“knowingly procure[] or attempt[] to procure, contrary to
law, the naturalization of any person, or documentary or
other evidence of naturalization or of citizenship.” 18
U.S.C. § 1425(a). The Supreme Court addressed the
requirements of this statute at some length in Maslenjak v.
United States, 137 S. Ct. 1918 (2017), and we therefore first
discuss what Maslenjak required the Government to show in
this case before addressing the sufficiency of the
Government’s proof under those standards.
A
In Maslenjak, the Supreme Court construed § 1425(a) in
the context of a prosecution for having actually “procure[d]”
naturalization “contrary to law,” rather than (as here) for an
“attempt[] to procure.” 18 U.S.C. § 1425(a). The Court held
that the requirement that the defendant “procured” the
naturalization of a person “contrary to law” means that “the
Government must establish that an illegal act by the
defendant played some role in [the] acquisition of
citizenship.” Maslenjak, 137 S. Ct. at 1923. The Court
further held that, in a case in which the illegal act by which
a defendant procured naturalization was “a false statement
UNITED STATES V. AMINTOBIA 19
made to government officials,” the Government must prove,
inter alia, that the alleged “false statement sufficiently
altered” the processes for investigating and adjudicating
naturalization applications “as to have influenced an award
of citizenship.” Id. at 1928. Maslenjak repeatedly described
this element of § 1425(a) as imposing a “causal”
requirement that subsumes, but goes beyond, a “materiality”
requirement. See, e.g., 137 S. Ct. at 1927–30 & n.4
(referring to § 1425(a)’s “causal standard,” “causal inquiry,”
or “causal requirement”); see also id. at 1932 (Gorsuch, J.,
concurring in part and in the judgment) (agreeing that “the
statute requires some proof of causation”); id. at 1932 (Alito,
J., concurring in the judgment) (disagreeing with the
majority’s adoption of a causation requirement and arguing
instead that the statute only imposes a materiality
requirement).
Both parties construe Maslenjak as establishing, in the
context of an attempted procurement of naturalization by
means of false statements, only a “materiality” requirement.
In the attempted procurement context, there is, of course, no
actual grant of naturalization that can be said to have been
causally influenced by the defendant’s false statements, and
we therefore agree with the parties that Maslenjak cannot be
read as applying a “causal requirement” in the context of an
attempted procurement of naturalization. 137 S. Ct. at 1930
(emphasis added). We assume, without deciding, that the
parties are correct in further positing that a defendant
charged under § 1425(a) with attempting to unlawfully
procure naturalization through false statements cannot be
said to have taken the requisite “‘substantial step’ toward
completing the offense” with the intent “to commit the
completed offense” unless the defendant’s false statements
were material to the naturalization process in the sense that
20 UNITED STATES V. AMINTOBIA
Maslenjak describes. United States v. Resendiz-Ponce, 549
U.S. 102, 106–07 (2007) (explaining that an “attempt”
generally requires an intent to commit the offense, coupled
with a substantial step). On appeal, Jaary concedes that the
Government adequately established that his answers to
Questions 31 and 32 of his naturalization application were
knowingly false, but he contends that the Government failed
to present sufficient evidence to establish the materiality of
those answers under Maslenjak’s standards.
Maslenjak sets forth two alternative ways in which a
defendant’s false statements “would have mattered to an
immigration official” and would therefore be material to the
naturalization decision. 137 S. Ct. at 1923. “If the facts the
defendant misrepresented are themselves disqualifying”
from obtaining naturalization—that is, if “the defendant
misrepresents facts that the law deems incompatible with
citizenship”—then “the defendant’s lie” bears an “obvious”
relationship to the naturalization inquiry and is plainly
material. Id. at 1928 (emphasis added). But “even if the true
facts lying behind a false statement would not ‘in and of
themselves justify denial of citizenship,’” they would still be
material if they “could have ‘led to the discovery of other
facts which would’ do so.” Id. at 1929 (citation omitted).
Under this alternative “investigation-based theory, the
Government must make a two-part showing to meet its
burden.” Id. First, it must “prove that the misrepresented
fact was sufficiently relevant to one or another naturalization
criterion that it would have prompted reasonable officials,
‘seeking only evidence concerning citizenship
qualifications,’ to undertake further investigation.” Id.
(citation omitted). Second, the Government must establish
“the prospect that such an investigation would have borne
disqualifying fruit.” Id. However, this second prong does
UNITED STATES V. AMINTOBIA 21
not require the Government to “show definitively that its
investigation would have unearthed a disqualifying fact,”
much less that it present “proof positive that a disqualifying
fact would have been found.” Id. at 1929–30. “Rather, the
Government need only establish that the investigation
‘would predictably have disclosed’ some legal
disqualification.” Id. at 1929 (emphasis added) (citation
omitted).
If the Government proves materiality under these
standards, the defendant nonetheless may assert, as an
affirmative defense, that he or she was “actually qualified for
the citizenship” he or she sought to obtain. Id. at 1930.
“Whatever the Government shows with respect to a thwarted
investigation, qualification for citizenship is a complete
defense to a prosecution brought under § 1425(a).” Id. 5
The inquiry framed by these standards is an objective
one. That is, the analysis does not turn on “what any
individual decisionmaker” who handled a defendant’s
application “might have done with accurate information.”
Id. at 1928. Instead, a jury applying these standards “must
evaluate how knowledge of the real facts would have
affected a reasonable government official properly applying
naturalization law.” Id.
B
Applying these standards, we conclude that the
Government presented sufficient evidence to establish that
Jaary’s false answers to Questions 31 and 32 were material
to his naturalization application.
5
Jaary did not present any such affirmative defense at trial, and we
therefore have no occasion to address that issue further here.
22 UNITED STATES V. AMINTOBIA
1
Jaary’s responses to those two questions falsely stated
that he had never given “any U.S. Government official(s)
any information or documentation that was false, fraudulent,
or misleading” and that he had never “lied to any U.S.
Government official to gain entry or admission into the
United States or to gain immigration benefits while in the
United States.” See supra at 14. In fact, Jaary had lied to
U.S. immigration officials during his credible-fear interview
and on his asylum application by claiming that he had been
mistreated in Iraq in May and December 2008 when he was
actually safe in Germany. And Jaary had lied on his
application for lawful permanent residence when he falsely
answered a question that, similar to Question 32 on his
naturalization application, asked him whether he had ever
willfully misrepresented a material fact to obtain “any
immigration benefit.” See supra at 13.
The Government argues that these facts are sufficient to
establish materiality under Maslenjak’s first theory of
materiality, in which “the facts the defendant misrepresented
are themselves disqualifying.” 137 S. Ct. at 1928. On this
score, the Government asserts that, because Jaary had given
“‘false testimony for the purpose of obtaining [immigration]
benefits,’” he had necessarily “demonstrated bad moral
character,” which is “itself a reason to deny naturalization.”
Maslenjak, 137 S. Ct. at 1927, 1930–31 (alteration added by
Maslenjak) (quoting 8 U.S.C. § 1101(f)(6), which provides
that an alien’s having given such false testimony, without
more, establishes a lack of “good moral character” for
purposes of the INA); see also 8 U.S.C. § 1427(a)(3). Prater,
the USCIS supervisor who testified at trial, arguably alluded
to this ground when he stated that (1) if “the foundation or
the ground for [Jaary’s] asylum was found to be falsified”
UNITED STATES V. AMINTOBIA 23
that would “be a basis to justify denying naturalization”; and
(2) a “misrepresentation” alone can be disqualifying. See
supra at 15–16. But Prater did not elaborate as to why a lie
itself would be disqualifying, and the Government
acknowledges that it “did not elicit testimony at trial about
‘good moral character’ as a determinative naturalization
criterion.” Jaary, in turn, claims that false statements during
his asylum proceedings in 2009–2010 do not fall within the
time frame for assessing moral character for naturalization
purposes, which (as applicable here) looks at whether,
during the five years preceding Jaary’s June 2016
naturalization application, he “is, or was . . . one who has
given false testimony for the purpose of obtaining any
benefits under [the INA].” 8 U.S.C. § 1101(f)(6); see also
id. § 1427(a) (specifying relevant time periods for assessing
good moral character). This contention, however, arguably
overlooks Jaary’s false statements on his 2012 application
for lawful permanent residence.
We need not resolve these various issues concerning
whether the evidence at trial was sufficient to support the
Government’s theory that Jaary’s false statements on his
naturalization application were themselves disqualifying,
because we conclude that ample evidence supports the
Government’s reliance on Maslenjak’s alternative
“investigation-based theory” of materiality. 137 S. Ct. at
1929.
2
As we have explained, an investigation-based theory
requires the Government to make two showings. The first is
that the “misrepresented fact was sufficiently relevant” to a
“naturalization criterion that it would have prompted
reasonable officials, ‘seeking only evidence concerning
24 UNITED STATES V. AMINTOBIA
citizenship qualifications,’ to undertake further
investigation.’” Maslenjak, 137 S. Ct. at 1929 (citation
omitted). On appeal, Jaary has not argued that the
Government’s proof on this prong was insufficient. Nor
could he. Prater specifically testified that, had USCIS
known that Jaary had previously given false information to
obtain an immigration benefit, the agency would “most
certainly” have “investigate[d]” the matter. He explained
that part of the naturalization process involves “verify[ing]”
that any status an applicant “received prior to applying for
naturalization” was “procured legally,” and so an
investigation would have been undertaken.
Jaary instead contests only the Government’s showing
on the second prong. That required the Government to show
that such an investigation “‘would predictably have
disclosed’ some legal disqualification.” Maslenjak, 137
S. Ct. at 1929 (citation omitted). On this score, Jaary does
not dispute that his false statements in procuring asylum
(and, in turn, lawful permanent residence) would have
disqualified him from naturalization if, under the true facts,
asylum would have been denied at the outset. Instead, in
arguing that his false statements were not material, he
contends only that, even if he “had been honest, he still
would have received asylum.”
As a preliminary matter, we agree that, under an
appropriate showing, Jaary’s false statements in connection
with his applications for asylum and for lawful permanent
residence could give rise to grounds for denying
naturalization. One of the requirements for naturalization is
that the person has been “lawfully admitted for permanent
residence.” See 8 U.S.C. § 1427(a)(1); see also id. § 1429
(providing that “no person shall be naturalized unless he has
been lawfully admitted to the United States for permanent
UNITED STATES V. AMINTOBIA 25
residence in accordance with all applicable provisions” of
the INA). As defined in the INA, the phrase “‘lawfully
admitted for permanent residence’ means the status of
having been lawfully accorded the privilege of residing
permanently in the United States as an immigrant in
accordance with the immigration laws, such status not
having changed.” 8 U.S.C. § 1101(a)(20) (emphasis added).
Because “‘lawfully’ denotes compliance with substantive
legal requirements, not mere procedural regularity,” an
“alien is not ‘lawfully’ admitted for permanent resident
status if, at the time such status was accorded, he or she was
not entitled to it.” Kyong Ho Shin v. Holder, 607 F.3d 1213,
1217 (9th Cir. 2010) (simplified) (citations omitted).
Because Jaary’s sole ground for seeking lawful permanent
residence was that he had been granted asylum, see 8 U.S.C.
§ 1159(b) (authorizing issuance of regulations allowing “any
alien granted asylum,” under certain conditions, to receive a
discretionary adjustment of status to that of a lawful
permanent resident), it follows that, if he procured his
asylum status through fraud, he was not “lawfully admitted
for permanent residence” and is ineligible for naturalization.
See Kyong Ho Shin, 607 F.3d at 1217 (“[T]he correct
interpretation of the term ‘lawfully admitted for permanent
residence’ is that an alien is deemed, ab initio, never to have
obtained lawful permanent resident status once his original
ineligibility therefor is determined in proceedings.” (quoting
Matter of Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA
2003) (emphasis added)).
Moreover, to be eligible for lawful permanent residence,
an “alien granted asylum” must be “admissible,” see 8
U.S.C. § 1159(b)(5), but an alien is inadmissible if, “by
fraud or willfully misrepresenting a material fact,” the alien
“seeks to procure (or has sought to procure or has procured)
26 UNITED STATES V. AMINTOBIA
a visa, other documentation, or admission into the United
States, or other benefit provided under [the INA].” Id.§ 1182(a)(6)(C)(i). Accordingly, merely having sought to
procure asylum or lawful permanent residence by fraud or
willful misrepresentation of a material fact is sufficient to
render an alien ineligible for lawful permanent residence
and, therefore, for naturalization.
Under these standards, it is clear, at a minimum, that if a
reasonable immigration official aware of the true facts would
not have granted Jaary asylum, then Jaary was ineligible for
naturalization and his false statements on his naturalization
application would necessarily be material. We conclude that
the Government presented sufficient evidence to make that
showing here.
Jaary’s only evidence of individual mistreatment in
support of his asylum application consisted of two alleged
incidents in Iraq in May 2008 and December 2008, but Jaary
was already safely in Germany from March 2008 through
late 2009. See supra at 6–13. Based on that evidence, a
rational jury could find that the two claimed incidents in Iraq
in 2008 were entirely fabricated and that Jaary had never
been personally subjected to any mistreatment on account of
his religion at all. Jaary argues that the more “likely”
inference that the jury should have drawn is that he simply
confused the dates and that the alleged events actually
“occurred in 2007 or earlier.” But in reviewing the
sufficiency of the evidence, we may not weigh the
competing inferences ourselves, but must draw all
reasonable inferences in favor of the verdict. See Nevils, 598
F.3d at 1163–64. Even if the jury might reasonably have
drawn a different inference, it was entitled to conclude that
Jaary simply made up his claims of persecution and that in
fact he had never been subjected to mistreatment on account
UNITED STATES V. AMINTOBIA 27
of his religion. Indeed, the fact that Jaary’s claims of
persecution in his U.S. asylum proceedings were much more
serious than the very different story he told to German
immigration officials further underscores that a reasonable
jury could have found his claims to be wholly false.
For the same reason, based on the trial evidence, a
rational jury readily could have found that a reasonable
asylum officer and a reasonable IJ would have concluded
that Jaary’s statements and testimony about experiencing
persecution were not credible. See Maslenjak, 137 S. Ct. at
1928. Prater testified that an alien’s giving “false testimony
on their asylum application,” or lying to the IJ during the
asylum hearing would likely lead to a denial of asylum. See
supra at 16. Moreover, the IJ openly expressed suspicions
that Jaary was not actually in Iraq during the time he claimed
to have been persecuted, but the IJ said that, in the absence
of evidence to support those suspicions about Jaary’s
credibility, he thought that he “ha[d] to grant” Jaary’s
asylum application. We conclude that, on this record, a
rational jury could find, beyond a reasonable doubt, that a
reasonable IJ apprised of the facts about Jaary’s presence in
Germany would have found Jaary not to be credible, and
would have denied asylum, on the ground that the claimed
persecution in 2008 was fabricated and that Jaary thus had
not established that he had suffered past persecution.
To be sure, even without evidence of past persecution,
Jaary still could have been found eligible for asylum if he
could have “establish[ed] a well-founded fear of future
persecution by showing both a subjective fear of future
persecution, as well as an objectively ‘reasonable
possibility’ of persecution upon return to the country in
question.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029
(9th Cir. 2019) (citation omitted). As we have explained, an
28 UNITED STATES V. AMINTOBIA
asylum applicant can “satisf[y] the subjective component by
credibly testifying that she genuinely fears persecution.”
Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir. 1999). We
have also recognized that even where an applicant’s own
testimony about past persecution is found not to be credible,
“strong” country conditions evidence that establishes the
objective component of a well-founded fear of persecution
claim can be “relevant in establishing [an applicant’s]
subjective fear,” because “[m]ost people are sensible enough
to harbor a genuine fear of persecution if the actual
likelihood of persecution is high.” Al-Harbi v. INS, 242 F.3d
882, 890 (9th Cir. 2001).
Jaary argues that the evidence concerning conditions
facing Chaldean Christians in Iraq that was submitted in
support of his asylum application precluded a rational jury
from finding that he lacked a subjective fear of persecution
based on his religion. Jaary made a similar argument to the
jury, but in our view the jury was entitled to reject it. This
evidence consisted of summaries of various reports that were
published between 2004–2010 concerning the treatment of
Christians in Iraq. These reports paint an unsettling picture
of extremist violence against Christians and Shia Muslims in
Iraq, but some of the reports also state that matters had
improved between 2006–2009. For example, one State
Department report from 2009 stated that there had been
“improvement in the general security situation” and that
extremists’ “influence and ability to attack ha[d]
significantly weakened since 2007.” Perhaps these reports
could have led the jury to draw the inference that Jaary
suggests, but that is not the standard of review that we must
apply. Rather, we are required to “determine whether ‘after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
UNITED STATES V. AMINTOBIA 29
essential elements of the crime beyond a reasonable doubt.’”
Nevils, 598 F.3d at 1163–64 (quoting Jackson, 443 U.S. at
319 (original emphasis in Jackson)). Given the
countervailing evidence in the record concerning Jaary’s
own experiences, including that he never recounted any such
persecution to German authorities, his lack of credibility
because of his lies about past persecution, and the evidence
suggesting improving conditions in Iraq, a rational jury
could find that he did not actually have a genuine subjective
fear of persecution on religious grounds and would therefore
have been found ineligible for asylum.
Jaary also points to the German FOIR’s grant of refugee
status to him, see supra at 6–8, but this evidence did not
require the jury to conclude that a reasonable asylum officer
and a reasonable IJ would have found that he had a
subjective fear of persecution based on religion. The FOIR,
based on the record before it, concluded that it was “to be
assumed” that Jaary would face persecution “if he were to
return to Iraq at the present time.” But whatever country
conditions evidence the FOIR reviewed was not before the
jury and the jury was not bound by the FOIR’s conclusion.
Also, the FOIR did not have the subsequent additional
information that, when pressed to identify any actual
incidents of such persecution, the best that Jaary could do
was to concoct two incidents that never happened.
Accordingly, we conclude that the Government
presented sufficient evidence to permit a rational jury to
conclude on this basis that Jaary would have been ineligible
for asylum and that his false statements on his later
naturalization application were therefore material to the
naturalization decision under an “investigation-based
theory.” Maslenjak, 137 S. Ct. at 1929. Consequently, we
have no occasion to address Jaary’s contention that the
30 UNITED STATES V. AMINTOBIA
Government failed to produce sufficient evidence to support
its alternative theory that Jaary had firmly resettled in
Germany and would have been ineligible for asylum on that
additional basis. We therefore affirm the district court’s
denial of Jaary’s Rule 29 motion with respect to the charged
violation of § 1425(a).
IV
Jaary’s second count of conviction was for a violation of
18 U.S.C. § 1546(a). That section makes it an offense, inter
alia, to “knowingly make[] under oath . . . any false
statement with respect to a material fact in any application,
affidavit, or other document required by the immigration
laws or regulations” or to “knowingly present[] any such
application, affidavit, or other document which contains any
such false statement.” 18 U.S.C. § 1546(a) (emphasis
added). We have described § 1546(a)’s materiality
requirement as requiring only proof that the statement in
question was “capable of affecting or influencing a
governmental decision,” and we have further held that “[t]he
false statement need not have actually influenced the
agency, and the agency need not rely on the information in
fact for it to be material.” United States v. Matsumaru, 244
F.3d 1092, 1101 (9th Cir. 2001) (emphasis added) (citation
omitted). The jury instructions given in this case—which
neither side has contested on appeal—were consistent with
this definition. We are thus not presented with, and do not
decide, whether our prior articulation of the materiality
standard of § 1546(a) must be re-examined in light of
Maslenjak’s analysis of the requirements of § 1425(a). In all
events, Jaary does not contend that the materiality standard
for a violation of § 1546(a) is more demanding than for a
violation of § 1425(a). Because we have concluded that the
evidence of materiality was sufficient as to the § 1425(a)
UNITED STATES V. AMINTOBIA 31
charge against Jaary, it follows that the evidence was
necessarily sufficient as to the § 1546(a) charge as well. We
therefore also affirm the district court’s denial of Jaary’s
Rule 29 motion with respect to that charge.
AFFIRMED.