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United States v. Ashurov

United States Court of Appeals, Third Circuit

August 12, 2013


Argued: May 16, 2013

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 2-11cr-00533-001) District Judge: Honorable Harvey Bartle, III

Robert A. Zauzmer, Anthony J. Wzorek [ARGUED] Office of the United States Attorney Attorney for Appellant United States of America

Leigh M. Skipper Brett G. Sweitzer [ARGUED] Federal Community Defender Attorneys for Appellee Zavkibeg Ashurov

Before: SLOVITER, FUENTES, and ROTH, Circuit Judges


FUENTES, Circuit Judge:

After a jury convicted Zavkibeg Ashurov of presenting a materially false statement in an immigration form, the District Court entered a judgment of acquittal, concluding that the statute of conviction required, but that the Government had not proved, that the statement was made under oath. The relevant statute punishes

[w]hoever knowingly makes under oath, or . . . under penalty of perjury . . . knowingly subscribes as true, any false statement with respect to a material fact in any . . . document required by the immigration laws . . . or knowingly presents any such . . . document which contains any such false statement or which fails to contain any reasonable basis in law or fact.

18 U.S.C. § 1546(a) (emphasis added). The United States asks that we reinstate Ashurov's conviction, arguing that the "knowingly presents" clause of the statute, which Ashurov was charged with violating, does not require that the materially false statement be made under oath. After carefully considering the opposing arguments regarding the proper construction of this complex law, we conclude that it is grievously ambiguous as to whether the "knowingly presents" clause requires an affirmation made under oath. Accordingly, we apply the rule of lenity and affirm the judgment of acquittal.


Ashurov, a citizen of Tajikistan, entered the United States under a visitor's visa in 2007 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 United States.

The application to adjust Ashurov's status and obtain the F-1 visa requires the submission of an Immigration and Naturalization Service Form I-20, which has been described as a "school's petition to the U.S. Government . . . to sponsor a student for enrollment." App. 96. The form requires that a school "designated official"[1] provide information regarding the candidate and the educational program he or she intends to complete, and certify under penalty of perjury that the information provided therein is true and that the student will be required to pursue a "full course of study" at the school. In the context of a language program, "full course of study" means at least eighteen hours of classroom instruction per week. 8 C.F.R. § 214.2(f)(6)(i)(D). Form I-20 also requires a "student certification" whereby students agree to comply with the terms and conditions of their admission as students and certify that they seek admission "for the purpose of pursuing a full course of study." That certification is not made under penalty of perjury.

Ashurov first sought adjustment of his status in April 2008 pursuant to U.S. Citizenship and Immigration Services ("USCIS") Form I-539, which, generally, is used to apply to extend or change an individual's non-immigrant status. Included with that form was a Form I-20 wherein Ashurov stated that he planned to study English as a Second Language at the CMG School in Trevose, Pennsylvania. The form was certified under penalty of perjury by the CMG School's designated official, and was signed by Ashurov without an oath, as the form provides. The application was granted later that year and Ashurov obtained a student visa. In April 2009 and again in April 2010, Ashurov presented identical Forms I-20 to the CMG School officials (all signed by Ashurov, but not sworn under oath), who in turn completed them, executed them under penalty of perjury, and submitted them to USCIS. In 2010, federal authorities began an investigation of the CMG School, seizing business records that revealed that the school was not providing students the required eighteen hours of weekly in-class instruction. The school was eventually closed and its designated school official was indicted. Records also revealed that Ashurov's attendance at the CMG School began to decline in 2009 and eventually became insufficient to meet the weekly hour requirement.

Ashurov was originally charged with violating 18 U.S.C. § 1546(a) by "knowingly making under oath" a materially false statement in the Forms I-20, but, given that he did not therein certify anything under oath, a superseding indictment was returned charging him only with "knowingly presenting a false statement." 18 U.S.C. § 1546(a). A jury convicted him of one count, based on the April 2010 form, but the District Court granted him a judgment of acquittal, concluding that the oath requirement applied to both the "knowingly makes" and "knowingly ...

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