If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit. The Government need not show definitively that its investigation would have unearthed a disqualifying fact. It need only establish that the investigation “would predictably have disclosed” some legal disqualification. Id., at 774. If that is so, the defendant’s misrepresentation contributed to the citizenship award in the way §1425(a) requires. This demanding but still practicable causal standard reflects the real-world attributes of cases premised on what an unhindered investigation would have found.
When the Government can make its two-part showing, the defendant may overcome it by establishing that she was qualified for citizenship (even though she misrepresented facts that suggested the opposite). Thus, whatever the Government shows with respect to a thwarted investigation, qualification for citizenship is a complete defense to a prosecution under §1425(a).
This particular holding seems to be out-of-touch with the realities of prosecuting and defending criminal jury trials. It is difficult to imagine a scenario where the prosecution and trial judge would move forward with a case under the circumstances. If the immigration statute at issue is part of a naturalization process that “is set up to provide little room for subjective preferences or personal whims”, it would be very rare to find a prosecutor and judge that would let a costly and time-consuming jury trial proceed when it is objectively clear that the defendant is entitled to a complete defense since they otherwise qualified for citizenship.
Measured against this analysis, the jury instructions in this case were in error. The jury needed to find more than an unlawful false statement. However, it was not asked to—and so did not—make any of the necessary determinations. The Government’s assertion that any instructional error was harmless is left for resolution on remand.
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