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Media Alerts - USA v. Zavkibeg Ashurov - Third Circuit
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August 13, 2013
  USA v. Zavkibeg Ashurov - Third Circuit
Headline: Third Circuit Affirms Acquittal of Foreign Student Convicted of Presenting Materially False Statements on Immigration Form

Area of Law: Statutory Interpretation

Issue(s) Presented: Whether District Court's acquittal of defendant who made false statements on immigration form was proper?

Brief Summary: A jury convicted Zavkibeg Ashurov of presenting a materially false statement on an immigrant form, but the District Court entered a judgment of acquittal after it found that the statute of conviction, 18 U.S.C. § 1546(a) required, but the Government did not prove, that the statement was made under oath. The government appealed to the Third Circuit to reinstate Ashurov's conviction. The government argued that the "knowingly presents" clause of the statute does not require that the materially false statement be made under oath. The Third Circuit found that the statute is grievously ambiguous as to the "knowingly presents" clause, and affirmed the judgment of acquittal after applying the rule of lenity.

Extended Summary: Zavkibeg Ashurov was convicted by a jury in the United States District Court for the Eastern District of Pennsylvania of presenting a materially false statement in an immigration form. Ashurov, a citizen of Tajikstan, first entered the U.S. on a visitor's visa in 2007 and then sought to obtain an F-1 student visa to enroll in an English language program and temporarily stay in the U.S. The F-1 visa required the submission of Immigration and Naturalization Service Form I-20, which is described as a school's petition to the U.S. government to sponsor a student for enrollment. The form requires a designated official from the school to provide, under penalty of perjury, certain information, including that the student will pursue a full course of study, or at least 18 hours of classroom instruction per week. Form I-20 also requires a student certification, which is not made under penalty of perjury. Ashurov's Form I-20 stated that he planned to study English as a Second Language at the CMG School in Trevose, PA. The form was certified under penalty of perjury by CMG's designated official, and was signed by Ashurov without oath, as provided by the form. Ashurov was granted a student visa. In 2009 and 2010 Ashurov submitted two more I-20 forms to the CMG school officials, who completed and submitted them to the government.

In 2010, federal authorities began an investigation into CMG School and found that the school was not providing students with the required 18 hours of weekly in-class instruction. The school was eventually closed and the school official was indicted. School records showed that Ashurov's attendance at the school began to decline in 2009 and eventually did not meet the 18-hour weekly requirement.

Ashurov was charged with violating 18 U.S.C. § 1546(a) by knowingly making a false statement under oath, but after it was discovered that he did not certify anything under oath, a second indictment was returned charging him only with "knowingly presenting a false statement." A jury in the District Court convicted him of one count, but the court granted him a judgment of acquittal, concluding that the oath requirement applies to both the "knowingly makes" and "knowingly presents" clause and in the alternative, that it would apply the rule of lenity.

The government appealed to the Third Circuit, which affirmed the judgment of acquittal. The fourth paragraph of 18 U.S.C. § 1546(a) states: "Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact." The issue was whether the "knowingly presents" portion, by the use of the word "such," also requires that Ashurov's statement be made under oath by incorporating the "knowingly making" clause. Ashurov argued that reading the "presenting" clause as not to include an oath requirement renders the oath requirement in the "making" clause superfluous because if a defendant makes a materially false statement that is not sworn under oath and then presents it, he will be punished even absent the oath.

The Third Circuit agreed, holding that under the government's interpretation, the oath requirement of the "making" clause would not have any effect or use. However, after considering the textual, contextual, and atextual canons of statutory construction, as well as the legislative history of the statute, the Third Circuit concluded that the statute was grievously ambiguous and the rule of lenity in defendant's favor was proper. The rule of lenity embodies the idea that the citizen is entitled to a fair notice of what conduct may give rise to punishment. Because the clause is 76 words, with seven uses of the conjunction "or," has a complicated history of amendments without explanation, and carries a high sentence of as much as 25 years, the rule of lenity applies and the court declined to remove the oath requirement from the "knowingly presents" clause.

The full opinion can be found at

Panel: Circuit Judges Sloviter, Fuentes, and Roth

Argument Date: 05/16/2013

Argument Location: Philadelphia

Date of Issued Opinion: 08/12/2013

Docket Number: No. 12-2711

Decided: Affirmed

Case Alert Author: Larissa Staszkiw

Counsel: Robert A. Zauzmer, Anthony J. Wzorek, Office of the United States Attorney, Attorney for Appellant United States of America; Leigh M. Skipper, Brett G. Sweitzer, Federal Community Defender Office, Attorneys for Appellee Zavkibeg Ashurov

Author of Opinion: Judge Fuentes

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/13/2013 09:10 AM     3rd Circuit  

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