Argued: May 10, 2017
from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:16-cr-00004-BO-1)
and remanded by published opinion. Judge Harris wrote the
opinion, in which Judge Traxler and Judge Floyd joined.
Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North
Carolina, for Appellant.
Barbara Dickerson Kocher, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Stuart Bruce, Acting United States Attorney, Jennifer P.
May-Parker, First Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
TRAXLER, FLOYD, and HARRIS, Circuit Judges.
HARRIS, Circuit Judge
convicted Hemza Menade Lefsih, an Algerian native who entered
the United States through the Diversity Immigrant Visa
Program, of immigration fraud. During Lefsih's trial, the
district court interjected numerous times, expressing
skepticism of the Diversity Immigrant Visa Program and a
negative impression of individuals who participate in the
program. We find that this judicial intervention was improper
and denied Lefsih the opportunity for a fair and impartial
trial, and therefore vacate the judgment of conviction.
Menade Lefsih immigrated to the United States through the
Diversity Immigrant Visa Program ("Diversity
Program"). The Diversity Program awards permanent
residence immigration visas - "diversity visas" -
to individuals from countries with historically low
immigration numbers, on the basis of a random lottery system.
Lefsih, from Algeria, won a Diversity Program lottery and
received a diversity visa. As allowed under the Diversity
Program, he then sought United States citizenship, submitting
an N-400 form - the application form for naturalization -
five years after entering the country.
22 through 28 of the N-400 relate to an applicant's
criminal history. Specifically, Question 22 inquires whether
an applicant has "ever committed . . . a crime or
offense for which [he or she was] not arrested";
Question 24, whether an applicant has "ever been charged
with committing . . . a crime or offense"; and Question
25, whether an applicant has "ever been convicted of a
crime or offense[.]" S.A. 375 (emphases in
original). And between those questions
is Question 23 - the question at issue here - asking whether
an applicant has "ever been arrested, cited, or detained
by any law enforcement officer . . . for any reason."
Id. (emphasis in original).
answered "no" to Question 23. Id. In fact,
however, Lefsih had been "cited" by several law
enforcement officers, receiving a total of 11 traffic
citations while working as a cab driver in North Carolina.
Lefsih later would testify that he understood Question 23 as
referring only to serious criminal offenses that resulted in
arrests or detentions, and not to traffic tickets, and so
believed that he was answering the question truthfully. But
Lefsih concedes that in actuality, his assertion that he
never had been "cited" was false.
Lefsih failed to acknowledge his traffic tickets in answer to
Question 23, the government charged Lefsih with two counts of
making a false statement on a naturalization form,
see 18 U.S.C. § 1015(a), and two counts of
immigration fraud, see 18 U.S.C. § 1546(a). In
order to obtain a conviction under either provision, the
government was required to prove Lefsih's state of mind:
that contrary to his account, Lefsih knowingly
provided a false answer to Question 23. See 18
U.S.C. §§ 1015(a), 1546(a).
two-day trial began on April 27, 2016. The government could
present no direct evidence that Lefsih knew, at the time he
filled out his N-400 form, that his answer to Question 23 was
false. Instead, as is common in establishing a
defendant's state of mind, the government relied on
circumstantial evidence. See United States v.
Santos, 553 U.S. 507, 521 (2008) (government customarily
proves knowledge with circumstantial evidence).
its first witness, Special Agent Tony Bell of the Immigration
and Customs Enforcement division of Homeland Security
Investigations, the government sought to establish that
Lefsih was fully capable of correctly understanding Question
23. Bell, who had investigated and interviewed Lefsih prior
to Lefsih's indictment, testified that Lefsih was a
proficient English speaker. He also reviewed Lefsih's
educational background, including work toward a master's
degree in physics at a Paris school; excellent performance in
classes at Wake Tech Community College; and high grades on
English proficiency and placement tests.
addition, Bell's testimony called into question
Lefsih's motives in entering the country through the
Diversity Program. Bell testified that in his experience, it
was unusual that someone like Lefsih would apply only for a
diversity visa through the Diversity Program lottery - with
low odds of success - and not for a student visa. According
to Bell, Lefsih explained this decision as turning on the
"better class of entry" offered by a diversity
visa. J.A. 114. Bell understood Lefsih to be referring to the
fact that students are admitted only for the purpose of
attending school and "tracked" while they are in
the country, J.A. 115, whereas diversity-visa holders enter
as legal permanent residents and without similar
government's next witness was Gary Freitas, a senior
officer with the United States Citizenship and Immigration
Services, who testified about the Diversity Program and the
naturalization application process. Freitas began by
explaining that the Diversity Program was established by
Congress so that people from countries with historically low
immigration rates would have an opportunity to live
permanently in the United States. Upon hearing that, the
district court asked Freitas a series of pointed questions
about the Program:
District court: You're saying that Congress has set up a
law that your agency enforces that invites people to come to
America from places where they don't normally come to
District court: That's a shorthand way of saying it?
Freitas: Yes, it is.
District court: That's incredible. And the reason that
they don't come to America is because they haven't
tried to come to America? Is that it?
Freitas: Usually because of - they may not have family
members here from those countries or ...