Short Take: Naturalizing Kafka

The per curiam decision of the Eleventh Circuit Court of Appeals was a glorious ten pages in length. It went downhill after that, as the court twisted itself into a knot that would make Harvey Silverglate weep. The case involved a Cuban emigre naturalized as a United States citizen in 2016. As pretty much any judge will tell you, it’s one of the few functions they perform that leave them with a feeling of joy, the recognition of a new American citizen. But then, to get to the day when they wave the flag, they first have to answer some questions.

Izquierdo is a native of Cuba who became a lawful permanent resident of the United States and a naturalized citizen on 30 September 2016. As part of the naturalization process, Izquierdo completed an Immigration Form N-400, Application for Naturalization (“Application”). By signing the Application, Izquierdo certified under penalty of perjury that the information on the Application was true. In response to Part 11, Question 22 on the Application — “[h]ave you EVER committed, assisted in committing, or attempted to commit, a crime or offense for which you were NOT arrested?” — Izquierdo answered “No.” Izquierdo confirmed this answer two more times: during an August 2016 interview for naturalization, and on his Immigration Form N-455, Notice of Naturalization Oath Ceremony.

Have you? As Harvey made manifest in his seminal work of “Three Felonies A Day,” we are all criminals, even if we don’t know it or appreciate it. Anyone denying they’ve committed a crime isn’t innocent, but ignorant. There’s a law criminalizing pretty much everything, and it’s essentially impossible to exist without breaking one or more. Before lunch.

The question is what’s delightfully known as a “Kafka Trap,” where you’re wrong no matter what answer you give. Of course, only one is going to get you citizenship, and so that’s the one any rational person would give, and most of the time, that’s the end of it. For Rafael Izquierdo, however, it came back to bite him in the butt.

In 2017, Izquierdo was convicted after pleading guilty to conspiracy to commit wire fraud: a conspiracy that was ongoing between January 2014 and January 2017.

Given the dates of the wire fraud conspiracy — and contrary to Izquierdo’s responses during his naturalization proceedings in 2016 — Izquierdo had committed and was continuing to commit crimes and offenses for which he had not been arrested. Based on Izquierdo’s false representations under oath during the naturalization process, Izquierdo was charged with unlawful procurement of naturalization and citizenship, in violation of 18 U.S.C. § 1425(a).

This isn’t to say that Izquierdo deserved to go down on wire fraud or not. People cop a plea for a variety of reasons, whether for the inability to defend, the risk of going to trial or because they’re guilty and got nailed for it. But since the conspiracy was alleged to have run from 2014 to 2017, and covered the time at which he applied for naturalization and answered the trick question, his answer was, by definition, false and he “procured” naturalization by making a false representation under oath that he was not an unarrested criminal.

The lawyer characterization of Izquierdo’s answer on his naturalization question is what we call the “exculpatory no,” meaning that when someone asks “are you a criminal,” what the hell else do they expect you to say? “Yeah, you got me with that good question. I’m a bad dude.” The natural response to such a question by anyone who isn’t completely nuts is to deny being an as yet undiscovered criminal. Who would say otherwise?

The issue is not, as the 11th Circuit spun it, whether his engaging in a conspiracy was material to the determination to grant citizenship. Of course it was. The issue is that the question is a post hoc trap, to explode not when it’s stepped on but when a subsequent guilty plea is taken.

Izquierdo argues that he was not adequately informed of the collateral consequences of his plea, as if he would have gone to trial rather than copped out had he known he would lose his citizenship. This is always a curious argument, given that the consequences of losing after trial usually involve a decade or so of one’s life, which invariably matters more at that moment than immigration status. Would he have refused to take the plea had he known he would lose his citizenship? So he argued. We hear that a lot, but always after the fact. When we have that unpleasant conversation about what the next couple decades of life are likely to look like, immigration status after release is never the primary concern.

Still, the rationale is about as circular as possible. Our old pal, the logical fallacy post hoc ergo propter hoc comes to mind, Was Izquierdo’s answer to the question false, or was it turned into a material lie because he pleaded guilty years later, reinventing history and intent by a future act converting an earlier act into a false material representation that cost him citizenship?

Before you answer, remember that nobody can honestly answer the question. Izquierdo just had the misfortune of getting caught. Don’t be too holier than thou.

9 thoughts on “Short Take: Naturalizing Kafka

  1. Dan

    If we’re in the realm of “how do you feel about this?” (which we are, since the law, as you describe it, is pretty clear), surely it has to be relevant whether Izquierdo would reasonably have known, at the time he answered the question, that what he was doing was a crime. It’s one thing if I committed a felony violation of the Clean Air Act by farting into the north wind during a waning crescent moon; it’s quite another if I robbed several banks and hadn’t yet been caught. “Wire fraud” sounds rather closer to the latter than to the former, but I imagine there’s a great deal of latitude in that charge.

    Reply
  2. Scott Jacobs

    Would he have refused to take the plea had he known he would lose his citizenship?

    This sort of thing is literally the reason I took an immigration law class.

    Reply
    1. SHG Post author

      It would have been a much stronger argument if it was the Pope, but he doesn’t tend to get arrested too often, so we’re constrained to make the point with someone like Izqueirdo.

      Reply
  3. Sacho

    I don’t see a particular problem with that question. If the goal is to deny naturalization to criminals, this is one way to easily achieve it. It also some benefit – it informs the applicant of the terms of their naturalization, instead of finding out after the fact that there’s a standing provision to strip naturalization from convicts.

    Of course, instead of a question, it could just be a warning on the forms themselves, but I don’t see it as a particularly troublesome thing. Thinking back, almost every similar document I’ve had to acquire – visas, residency cards etc have similar “are you a bad dude” questions, presumably with the same intention.

    Would changing it to just a warning on the forms be any better? You’d remove the kafkatrap, but the end result for people would be just the same. I have no opinion on whether stripping naturalization from felons is a good idea in the first place.

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    1. Alex S.

      The point is that anyone answering “yes” will not gain citizenship, and yet everyone answering “no” is lying, even if the government does not currently have the evidence to prove it.

      Reply

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