United States of America v. Deanah Chelagat Cheboss

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2617
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Deanah Chelagat Cheboss
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: April 13, 2023
Filed: August 11, 2023
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Before LOKEN, SHEPHERD, and KELLY, Circuit Judges.
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LOKEN, Circuit Judge.
Deanah Chelagat Cheboss appeals her conviction for having knowingly
procured her naturalization contrary to law in violation of 18 U.S.C. § 1425(a). Ms.
Cheboss made several false statements in procuring her naturalization. The issues on
appeal are whether the government met its burden to prove beyond a reasonable doubt
that the false statements were material, as that element of the § 1425(a) offense was
defined in Maslenjak v. United States, 582 U.S. 335 (2017), and whether they were

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made “under oath,” see 18 U.S.C. § 1015(a). We review these issues de novo,
viewing the evidence in the light most favorable to the government and affirming if
a reasonable finder of fact could find the conviction supported beyond a reasonable
doubt. See United States v. Coleman, 584 F.3d 1121, 1125 (8th Cir. 2009) (standard
of review); United States v. Santos, 947 F.3d 711, 730 n.12 (11th Cir. 2020).
Applying this deferential standard, we affirm.
I. Background
This prosecution has a complex history. We limit our review to facts and
procedural history relevant to the issues on appeal. In August 1999, Kenyan-born
Gideon Tanui entered the United States on a tourist visa. He overstayed the visa,
leaving the United States in 2001. That made him ineligible for admission into the
United States for ten years. See 8 U.S.C. § 1182(a)(9)(B)(i)(II). The government
denied Gideon a second tourist visa in 2004. In September 2005, his Kenyan wife,
Deanah Kipyego, now Deanah Cheboss,1 entered the United States on a diversity visa
as a lawful permanent resident. The diversity visa application, signed in May 2004,
listed Gideon Tanui as Deanah’s husband. Immigration records reflect that, in an
April 2005 visa interview in Kenya, she falsely claimed Gideon Tanui passed away.2
In October 2008, Gideon Tanui, now in Kenya, used the false alias “Gideon
Cheboss” to obtain a G2 visa, a nonimmigrant visa for government representatives,
1Because the change in her surname is an important aspect of this prosecution,
we are referring to her as “Deanah” to avoid confusion.
2Deanah argues no interview took place. But she signed the diversity visa
application where applicants are instructed to sign during interviews, and a
Department of State “Immigrant Data Summary” prepared after the interview listed
her marital status as widowed. A government witness testified at trial that Gideon’s
Department of Homeland Security immigration file contains a Department of State
document affirming that Deanah said Gideon Tanui died.
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falsely stating he would represent Kenya at the 63rd session of the United Nations
General Assembly. The G2 visa authorized Gideon to stay in the United States until
the end of the U.N. session in September 2009. Instead, Gideon entered the United
States and never left. In June 2009, Deanah filed a Form I-130 Petition for Alien
Relative on behalf of “Gideon Cheboss,” her new husband. The Petition falsely
stated that Deanah was married to Gideon Tanui until April 2005 and married Gideon
Cheboss in October 2008. She attached a Kenyan document certifying her marriage
to Gideon Cheboss and a false Kenyan death certificate for Gideon Tanui. The
Petition was approved on August 11, 2010.
On July 21, 2010, Deanah signed a Form N-400 Application for Naturalization.
Above her signature, Deanah “certif[ied], under penalty of perjury under the laws of
the United States of America, that this application, and the evidence submitted with
it, are all true and correct.” The Application repeated the false statement that Deanah
had married twice, provided the date of the “new” marriage, and attached Gideon
Tanui’s false death certificate. Deanah answered “No” to Question 23: “Have you
ever given false or misleading information to any U.S. Government official while
applying for any immigration benefit . . . ?”
Department of Homeland Security regulations provide that, “[s]ubsequent to
the filing of an application for naturalization, each applicant shall appear in person
before a [United States Citizenship and Immigration Services] officer designated to
conduct examinations” for an examination which “shall be uniform throughout the
United States and shall encompass all factors relating to the applicant’s eligibility for
naturalization.” 8 C.F.R. § 335.2(a). Deanah’s Application recites that USCIS
Officer D. Howe interviewed her on December 20, 2010 in Des Moines, Iowa.
Deanah again signed the N-400 under penalty of perjury, reaffirming her previous
answers, the basis for this prosecution. The N-400 form contains red marks next to
answers that she was married twice, the date of her “new” marriage to Gideon, and
that she had never given false or misleading information to a governmental official
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while applying for an immigration benefit. In addition, red handwriting states that
Deanah’s marriage to Gideon Tanui ended in May 2005. It is undisputed these
statements were false. The regulations provide that an applicant is questioned “under
oath or affirmation,” and the officer “shall correct written answers . . . to conform to
the oral statements made under oath or affirmation.” 8 C.F.R. § 335.2(c). At trial,
Carrie Harmsen, a USCIS supervisory officer who has conducted thousands of
naturalization interviews, testified it is USCIS practice to use red check marks or
slashes to indicate answers the applicant orally confirmed at the interview, and that
information in red handwriting means the applicant provided it at the interview.
The N-400 Application was approved and Deanah became a United States
citizen in January 2011. Now the spouse of an American citizen, Gideon Cheboss
could immediately apply for permanent residency, avoiding what is often long delays.
See 8 U.S.C. § 1255(a). He applied in February 2011 and became a permanent
resident in July 2011.
John Haase, special agent with Homeland Security Investigations, received a
referral from the USCIS fraud detection unit regarding Deanah and Gideon. Haase
uncovered the true immigration story after interviewing Gideon and matching
fingerprint records between Gideon Cheboss and Gideon Tanui. A federal grand jury
indicted Deanah for unlawful procurement of naturalization in violation of 18 U.S.C.
§ 1425(a) and Gideon for various violations of the immigration laws. Gideon pleaded
guilty to attempted naturalization fraud prior to trial.
The government and Deanah proceeded to a one-day bench trial. The
government first called Gideon, who invoked his privilege not to testify against his
wife. The government then submitted the above-summarized immigration
documents. Special Agent Haase and Carrie Harmsen testified for the government.
Immigration lawyer Laura Lichter testified as a defense expert that in about one of
15 naturalization interviews, the interviewer fails to place the applicant under oath.
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After closing arguments, the district court3 noted that the government “can establish
somebody’s guilt beyond a reasonable doubt through circumstantial evidence” and
found that the government “has established with proof beyond a reasonable doubt that
Ms. Cheboss did commit the crime of which she’s charged.” The court subsequently
sentenced Deanah to three years supervised release and granted the government’s
motion to revoke her citizenship. See 8 U.S.C. § 1451(e).
II. Discussion
A conviction under 18 U.S.C. § 1425(a) requires the government to prove that
Deanah “knowingly procure[d] . . . contrary to law, the naturalization of any person.”
18 U.S.C. § 1425(a). It is “contrary to law” if a person “knowingly makes any false
statement under oath, in any . . . matter relating to . . . naturalization, citizenship, or
registry of aliens.” 18 U.S.C. § 1015(a). However, in Maslenjak, resolving a conflict
in the circuits, the Supreme Court held that, to support a conviction under 18 U.S.C.
§ 1425(a), a knowingly false statement that violates § 1015(a) must be “material,”
that is, the government must prove “the defendant lied about facts that would have
mattered to an immigration official.” 582 U.S. at 338. The false statements must
have “somehow contributed to the obtaining of citizenship.” Id. at 342. On appeal,
Deanah argues the government failed to prove beyond a reasonable doubt that (i) she
made a material false statement under oath during her naturalization application, and
(ii) she did not qualify for naturalization, a complete defense to a § 1425(a) charge.
A. Material False Statement. In Maslenjak, after concluding that § 1425(a)
requires proof of a causal connection -- that a material false statement “played some
role” in procuring naturalization -- the Supreme Court addressed how this
requirement would apply. If the facts the defendant misrepresented would themselves
3The Honorable Stephanie M. Rose, Chief Judge of the United States District
Court for the Southern District of Iowa.
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disqualify the applicant for naturalization, such as falsely representing physical
presence in the United States for the period required in 8 U.S.C. § 1427(a)(1), “there
is an obvious causal link between the defendant’s lie and her procurement of
citizenship.” 582 U.S. at 348. But even where the true facts are not themselves
disqualifying, the Court explained, the government can prove the requisite causal link
by relying on an “investigation-based theory,” which requires proof that (i) the
misrepresented fact was sufficiently relevant to a naturalization criterion that it would
have prompted reasonable officials to undertake further investigation, and (ii) “that
the investigation would predictably have disclosed some legal disqualification.” Id.
at 349-50 (quotation omitted).
To be eligible for naturalization, an applicant must show that she “has been and
still is a person of good moral character” for the five years prior to applying for
naturalization up to the time of admission. 8 U.S.C. § 1427(a)(3). One of eight
statutorily enumerated conditions that preclude a person from being found to be of
good moral character is giving “false testimony for the purpose of obtaining” an
immigration benefit. 8 U.S.C. § 1101(f)(6); see 8 C.F.R. § 316.10(b)(2)(vi);
Amador-Palomares v. Ashcroft, 382 F.3d 864, 867 (8th Cir. 2004).4 In this case,
relying on the “investigation-based theory” articulated by the Supreme Court in
Maslenjak, the government argued the false statements in Deanah’s N-400
Application for Naturalization were material because, had the true facts been
disclosed, immigration officers would have undertaken further investigation and
learned the false statements were given for the purpose of obtaining an immigration
4Section 1101(f)(6) is limited to false testimony for the purpose of obtaining
immigration benefits. “Willful misrepresentations made for other reasons, such as
embarrassment, fear, or a desire for privacy” are insufficient. Kungys v. United
States, 485 U.S. 759, 780 (1988).
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benefit for Gideon in violation of § 1101(f)(6),5 and denied naturalization under
§ 1427(a)(3) because Deanah was not a person of good moral character.
At trial, Carrie Harmsen testified that questions relating to good moral
character are thoroughly investigated; had they known of Deanah’s false statements,
USCIS would have investigated and denied naturalization for lack of good moral
character under § 1101(f)(6). This testimony, combined with the highly suspicious
timing of Gideon’s G2 visa expiration, Deanah’s Form I-130 Petition and Application
for Naturalization, and Gideon’s immediate petition for permanent residency when
Deanah was granted citizenship, are sufficient to meet the government’s burden
regarding the likelihood and outcome of a further investigation. See Santos, 947 F.3d
at 733-34; United States v. Haroon, 874 F.3d 479, 483-84 (6th Cir. 2017).
Deanah argues she never lied to obtain immigration benefits. She cites
testimony by defense expert Lichter that Gideon did not in fact overstay his G2
“duration of status” visa6 and could have applied for an immigration waiver to permit
a permanent residency adjustment. Therefore, Deanah becoming a citizen was not a
benefit to Gideon.
5Gideon, a person in the United States who had overstayed his nonimmigrant
G2 visa, could not adjust to permanent resident status within the United States. See
8 U.S.C. § 1255(c)(2). This bar would not apply if Deanah became a United States
citizen. In addition, with Deanah a citizen, Gideon could avoid the months or years
applicants normally wait to obtain a visa to become a permanent resident. § 1255(a).
The regulations make clear that one who gives false testimony to obtain immigration
benefits for another lacks good moral character. See 8 C.F.R. § 316.10(b)(2)(vi).
Deanah does not argue otherwise.
6See generally Guilford Coll. v. Wolf, No. 1:18CV891, 2020 WL 586672, at
*1 (M.D.N.C. Feb. 6, 2020).
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Whether Deanah acted with the requisite intent is a question of fact. Kungys,
485 U.S. at 782. We conclude a reasonable factfinder could find she acted to obtain
immigration benefits for her spouse. Deanah began her lies after Gideon’s second
tourist visa was denied. She repeated the false statements in subsequent immigration
documents. Gideon applied for permanent residency a month after Deanah became
a citizen, taking full and immediate advantage of the benefits she obtained. It is hard
to imagine any purpose of the falsehoods except to benefit Gideon, even if merely to
protect Gideon’s unlawful presence in the United States. Cf. Liwanag v. I.N.S., 872
F.2d 685, 689 (5th Cir. 1989). Moreover, Deanah’s false answer to Question 23 --
that she had never given false or misleading information to a government official --
was for the purpose of obtaining an immigration benefit for herself; a truthful answer
would have showed she lacked good moral character and therefore was ineligible for
naturalization. “There can be no doubt that one who falsely denies during a
naturalization interview that she has previously given false or misleading information
to a government official does so for the purpose of obtaining naturalization benefits.”
Yemer v. USCIS, 359 F. Supp. 3d 423, 431 (E.D. Va. 2019).
Deanah argues the false statements were immaterial because they did not
necessarily establish she lacked good moral character. We disagree. 8 U.S.C.
§ 1101(f) provides that “[n]o person shall be regarded as, or found to be, a person of
good moral character who” gives false testimony to obtain an immigration benefit in
violation of § 1101(f)(6). See 8 C.F.R. § 316.10(b)(2)(vi); Reynoso v. Holder, 711
F.3d 199, 210-11 (1st Cir. 2013).
B. Under Oath. 8 U.S.C. § 1101(f)(6) provides that no person “who has given
false testimony for the purpose of obtaining any [immigration] benefit” may be
regarded as having good moral character. Deanah argues that “false testimony” is
limited to false statements given verbally under oath. As the government failed to
prove beyond a reasonable doubt that the false statements in her N-400 Application
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for Naturalization were given orally and under oath, the government failed to present
sufficient evidence and we “need not even address materiality.” We disagree.
Deanah argues the government failed to prove the answers she provided at the
naturalization interview were made “under oath” because (i) the Form N-400 does not
say so; (ii) USCIS interviewing officer Howe did not testify; (iii) USCIS supervisory
officer Harmsen had no first hand knowledge and could only testify as to how officers
should conduct the interviews; and (iv) defense expert Lichter testified that based on
her experience interviewers frequently do not put naturalization applicants under
oath. In addition, Deanah argues, Harmsen’s testimony that the red markings
indicated what questions Howe asked was speculative.
These are questions of fact. Harmsen testified it is standard for interviewers
to place naturalization applicants under oath at the beginning of the interview, that
federal regulations require it, and that USCIS trains interviewers to do so. See 8
C.F.R. § 335.2(c). Given the strict requirements in the regulations, Harmsen’s
testimony she has followed those procedures in thousands of interviews, and the
confirming red slashes and handwriting on Deanah’s N-400 Application, there was
powerful circumstantial evidence that Deanah confirmed under oath at the
naturalization interview that she made the false statements.
The district court was free to find the testimony of Harmsen more credible than
the contrary opinion of Lichter, who admitted she had never attended a naturalization
interview in Des Moines. See Santos, 947 F.3d at 734. In addition, other courts have
relied on red ink annotations by immigration officers conducting naturalization
interviews. See United States v. Mohammad, 249 F. Supp. 3d 450, 454 n.3 (D.D.C.
2017) (citing cases); Haroon, 874 F.3d at 483. And Deanah points to no case
imposing the unrealistic requirement that the interviewing USCIS officer must attend
a § 1425(a) trial long after the naturalization interview and testify that he or she
complied with the uniform USCIS practice of having naturalization questions
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answered under oath. As in Haroon, 874 F.3d at 483, we conclude that “[a]mple
evidence showed that [Deanah] orally ratified [her] written responses” at the
interview.7
C. Qualified for Citizenship. Finally, Deanah argues she has an independent
defense to the § 1425(a) charge because, whatever lies she might have made, she still
legitimately qualified for naturalization. In Maslenjak, the Supreme Court noted that
§ 1425(a) “is not a tool for denaturalizing people who . . . were actually qualified for
the citizenship they obtained.” 582 U.S. at 351. However, because Deanah gave
false testimony to obtain an immigration benefit, she lacked the good moral character
required to qualify for naturalization. See 8 U.S.C. §§ 1101(f)(6), 1427(a).
The judgment of the district court is affirmed.
______________________________
7Therefore, we need not decide whether Deanah is correct in arguing that “false
testimony” must be given orally to violate 8 U.S.C. § 1015(a). The argument is based
on a statement in Kungys. In ruling that § 1106(f)(6) does not contain a materiality
requirement for false testimony, the Court stated:
“testimony” is limited to oral statements made under oath. The United
States concedes that it does not include other types of misrepresentations
or concealments, such as falsified documents or statements not made
under oath.
485 U.S. at 780 (cleaned up). Deanah argues that 18 U.S.C. § 1015(a) independently
imposes this same requirement, separate from materiality. In United States v.
Mensah, the First Circuit, citing 28 U.S.C. § 1746 and Federal Rule of Evidence 603,
held that § 1015(a) requires a false statement under oath, but the statement does not
need to be verbal; “signing a statement under penalty of perjury satisfies the standard
for an oath or affirmation.” 737 F.3d 789, 806 (1st Cir. 2013) (quotation omitted).
We are inclined to agree. The government made no contrary concession in this case,
as it apparently did in Kungys.
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