A defense filing Thursday says prosecutors are trying to use Tsarnaev's foreign birth and immigration history against him. They say citing his status as a newly naturalized U.S. citizen implies he is "more deserving of the death penalty" than a native-born person who commits the same crime.
Tsarnaev's lawyers write that listing betrayal of the United States as an aggravating factor "openly invites resentment of Tsarnaev as an immigrant and as a recently naturalized citizen."
Tsarnaev's lawyers argue that out of 493 federal death penalty cases, this is the only time the government has cited betrayal of the United States as an aggravating factor. And one of those 493 cases, was Timothy McVeigh, a Gulf War veteran who was convicted of planting a truck bomb in Oklahoma City that killed 168 people.
Tsarnaev is awaiting trial in the 2013 marathon bombing that killed three people and injured more than 260.
He lived in the former Soviet republic of Kyrgyzstan and later in Russia before moving to the U.S. at age 8.
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