Skip to main content

Crime of knowingly presenting a materially false statement in an immigration form requires a statement made under oath

United States v. Ashurov, No. 12-2711 (Aug. 12, 2013): Defendant, a citizen of Tajikistan, entered the United States under a visitor's visa and subsequently sought to obtain an F-1 student visa that would permit him to enroll in an English language program and temporarily remain in the U.S.. As part of the F-1 student visa application process, Ashurov signed a student certification form (Form I-20) agreeing to comply with the terms and conditions of his admission as a student and certifying that he was seeking admission for the purpose of pursuing a full course of study. Ashurov completed the Form I-20 once a year for three consecutive years. The certification was not made under oath or penalty of perjury. An investigation of Ashurov's school eventually revealed that the school was not in compliance with federal regulations and, further, that Ashurov was not in compliance with the terms and conditions of his student visa, despite repeatedly certifying on his Form I-20 that he was in compliance.

Ashurov was convicted after trial of presenting a materially false statement in an immigration form, in violation of 18 U.S.C. § 1546(a), but the district court entered a judgment of acquittal concluding that the government failed to prove that Ashurov made any statements under oath. The United States appealed, asking that the conviction be reinstated because the "knowingly presents" clause of § 1546(a), which Ashurov was charged with violating, did not require that the materially false statement be made under oath.

After considering the plain language of the statute, various canons of statutory construction, the legislative history of the statute, the statute's purpose, and the single precedential case previously interpreting the statute, the Third Circuit concluded that there remained a grievous ambiguity as to the meaning of the "knowingly presents" clause of § 1546(a) and whether it required that the false statement be made under oath. Accordingly, applying the rule of lenity to the "needlessly  convoluted statute," the Court ruled in Ashurov's favor and upheld the judgment of acquittal.

Congratulations to Brett Sweitzer and the Philadelphia Federal Community Defender Office on the win!


Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.

The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…

A Traffic Stop Followed by a Summons is not an Intervening Arrest for Sentencing Guidelines Purposes

In United States v. Ley, __ F.3d __, 2017 WL 5618617 (3d Cir., Nov. 22, 2017), the Third Circuit held that a traffic stop, followed by the issuance of a summons, is not an intervening arrest for the purpose of calculating a defendant’s prior convictions under USSG § 4A1.2(a)(2).   Defendant John Francis Ley received two speeding tickets on two consecutive days.  After writing each ticket, the police released Ley and informed him that the matter would proceed via summons.  No arrest was made and Ley was sentenced for both matters on the same day. The District Court, however, held that the issuance of the summons constituted an intervening arrest for the purposes of the Guidelines and each ticket therefore merited an individual criminal history point.  Ley appealed.  Looking at the ordinary meaning of both “arrest” and “summons,” as well as the Supreme Court’s history of distinguishing arrests from other interactions with law enforcement, the Third Circuit, joining three other circuits …