Section 237 Deportability Statutes: Failure to register and falsification of documents

 

Introduction

Section 237 of the Immigration and Nationality Act (INA), titled “deportable aliens,” contains provisions for the removal of aliens from within the United States. Section 237 also includes limited provisions for waivers of inadmissibility.

In this section, we will review the deportability provisions found in section 237(a)(3) of the INA, which is titled “Failure to register and falsification of documents.” This article is one part of a series on the deportability provisions of the INA. Please see the contents below for other entries in the series, including the most commonly used deportability provisions found in sections 237(a)(1) and (a)(2):

Failure to Register and Falsification of Documents

The provisions of this article apply to any alien who is “in and admitted to the United States.” It does not, however, cover alien crewmen.

Failure to register and falsification of documents

Section 237(a)(3) of the INA contains deportability provisions under the rubric “failure to register and falsification of documents.” The section 237(a)(3) deportability provisions are broadly organized into four categories lettered (A) through (D). We will provide an overview of each category in the following subsections.

A. Change of Address

Section 237(a)(3)(A) of the INA.

Under section 237(a)(3)(A), an alien who fails to comply with section 265 of the INA is deportable unless he or she establishes to the satisfaction of the Attorney General (under current law, the Secretary of Homeland Security) that this failure was “reasonably excusable or was not willful.” Because section 237(a)(3)(A) incorporates section 265 by reference, we must understand the language of section 265 of the INA.

The main provision of section 265 is found in section 265(a) of the INA. Section 265(a) reads as follows: “Each alien required to be registered under this subchapter who is within the United States shall notify the Attorney General in writing of each change of address and new address within ten days from the date of such change and furnish with such notice such additional information as the Attorney General may require by legislation.” The Board of Immigration Appeals (BIA) noted that the registration requirement is broadly applicable: “Virtually every alien in the United States is under an affirmative obligation to report address changes to the Attorney General, regardless of immigration status or circumstances.” Matter of G-Y-R-, 23 I&N Dec. 181, 190 (BIA 2001) [PDF version]. The Board noted that there is a limited general exception found in section 221(b): “The only aliens who are usually exempt from registration are nonimmigrant representatives of foreign countries and the staff of international organizations.” Id.

Section 265 of the INA contains two other parts. First, under section 265(b), the Attorney General, now the Secretary of Homeland Security under current law, may, with ten days of notice, “require the natives of any one or more foreign states, or any class or group thereof, who are within the United States and who are required to be registered under this subchapter, to notify the Attorney General of their current addresses and furnish such additional information as the Attorney General may require.” Although section 265(b) is not relevant in the vast majority of cases, an alien should always be aware if he or she is subject to special registration requirements. One example of such a program that is no longer in effect is the now-defunct NSEERS program that was administered during parts of the George W. Bush and Barack Obama administrations [see opinion blog].

Finally, section 265(c) of the INA states that where the parent or legal guardian of an alien is required to apply for registration, “the notice required by this section shall be given to such parent or legal guardian.”

It is important for aliens to comply with all applicable registration requirements, including notifying the DHS of changes of address. In addition to the deportability provision in section 237(a)(3)(A), an alien who willfully fails to register or who fails to notify of change of address may be subject to criminal penalties under section 266 of the INA.

However, it is worth noting that section 237(a)(3)(A), and the previous version of the statute found in the former section 241(a)(5), are not often used. The United States Citizenship and Immigration Services (USCIS) Operating Instructions (OI) explains at section 265.1 that “[f]ailure by an alien to comply with the reporting requirements of section 265 of the [INA], regarding notification of address and change of address, shall not normally serve as the sole basis for initiating prosecution or deportation proceedings” [PDF version]. Furthermore, under 8 C.F.R. 1003.19(g), the DHS rather than the alien is responsible for advising an immigration court of a respondent's change in custody location or release from custody. Immigration Act of 1990 Today explained that these prosecution or deportation provisions for failing to report have usually been used, when at all, against those who were believed to be politically subversive, those who were believed to be associated with organized crime activity, and those who failed to register under the requirements of NSEERS.1

In rare cases where section 237(a)(3)(A) is used, there is a limited exception for an alien who can satisfactorily prove that his or her failure to register in accordance with section 265 was “reasonably excusable or was not willful.” The Board addressed the meaning of these terms in its 1954 precedent decision, Matter of B-, 5 I&N Dec. 692 (BIA 1954) (analyzing identical language in former section 241(a)(5)). Noting that the statute lists “reasonably excusable” and “not willful” in the disjunctive, the Board assessed the terms separately. First, the Board defined “willful”: “Generally, it (willful) means no more than that the person charged with the duty knows what he is doing.” 5 I&N Dec. at 693-94 (quoting from Townsend v. United States, 95 F.2d 352, 358 (C.A.D. of C., 1938)). The Board defined “reasonably excusable” as meaning “an act or omission which is moderately or sufficiently justifiable.” 5 I&N Dec. at 694. The Board explained that an alien must establish “the existence of the exculpatory evidence … by credible evidence sufficiently persuasive to satisfy the Attorney General…” Id. Please see our full article on Matter of B- to learn more [see article].

Finally, failure to register (as defined by section 243(a)(3)(A)) cannot serve as the basis of an in absentia removal order. Matter of G-Y-R-, 23 I&N Dec. at 190.

B. Failure to register or falsification of documents

Section 237(a)(3)(B) of the INA.

Section 237(a)(3)(B) contains three separate clauses outlining three situations which result in deportability. Unlike section 237(a)(3)(A), the clauses all require that the alien have been convicted for violating specific criminal statutes in order to be removable. Absent a specific criminal conviction, an alien would not be removable under section 237(a)(3)(B). However, even absent a conviction the conduct that could lead to the convictions specified in section 237(a)(3)(B)(i)-(iii) could make an alien vulnerable to removal on other grounds.

i. Conviction for Failure to Register

First, section 237(a)(3)(B)(i) of the INA renders deportable an alien convicted under section 266(c) of the INA or section 36(c) of the Alien Registration Act of 1940. In order to understand this provision, we must first look to the text of section 266(c):

“Any alien or any parent or legal guardian of any alien, who files an application for registration containing statements known by him to be false, or who procures or attempts to procure registration of himself or another person through fraud, shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000, or be imprisoned not more than six months, or both; and any alien so convicted shall, upon the warrant of the Attorney General, be taken into custody and be removed in the manner provided in part IV of this subchapter.”

The documents constituting an application for registration are found in 8 C.F.R. 264.1. You may read the version current as of January 29, 2018, here: [PDF version]. Essentially, section 266 of the INA criminalizes procuring or attempting to procure registration (as defined in 8 C.F.R. 264.1) for oneself or another through fraud. In addition to the stipulated fine and potential imprisonment, an alien thus convicted would be subject to removal from the United States. Like section 237(a)(3)(A), section 237(a)(3)(B)(i) is not a particularly common deportability ground. However, it is important to note that it is one of many INA provisions targeted at fraud, including the seemingly ubiquitous section 212(a)(2)(C)(i) (inadmissibility for fraud or willful misrepresentation of a material fact to procure any benefit(s) under the immigration laws), which do not require criminal convictions to trigger removability.

ii. Conviction for Failure to Register as a Foreign Agent

Second, section 237(a)(3)(B)(ii) of the INA renders deportable an alien who has at any time been convicted “of a violation of, or an attempt or a conspiracy to violate, any provision of the Foreign Agents Registration Act of 1938 (22 U.S.C. 611 et seq.). For your convenience, we have uploaded a Department of Justice (DOJ) guide on the Foreign Agents Registration Act (FARA), which includes the text of 22 U.S.C. 611 [PDF version]. Failure to register as a foreign agent is unlikely to be a pertinent issue for the vast majority of immigrants and nonimmigrants in the United States. However, any alien who may be working for or on behalf of a foreign government should always ensure that he or she complies with the strict registration requirements in FARA, which have both criminal and civil (immigration removal) applications and repercussions.

It is also worth noting that a conviction under FARA is required to trigger section 237(a)(3)(B)(ii). The Board noted this in distinguishing the identically worded former section 241(a)(3)(B)(ii) from former 241(a)(4)(A)(i) (current version: 237(a)(4)(A)(i)) which did not require a conviction. Matter of Luis, 22 I&N Dec. 747, 756-57 (BIA 1999) [PDF version].

iii. Conviction for Fraud or Misuse of Visas

Third, section 237(a)(3)(B)(iii) of the INA renders deportable any alien who is convicted “of a violation of, or an attempt or a conspiracy to violate, [18 U.S.C. 1546] (relating to fraud and misuse of visas, permits, and other statutory documents).” You may read the text of current 18 U.S.C. 1546 here: [PDF version].

Although 18 U.S.C. 1546 refers to “[f]raud and misuse of visas, permits, and other documents,” it is important to remember that it is a criminal statute rather than a civil immigration statute. That means that an individual charged under 18 U.S.C. 1546 would be subject to proceedings in criminal court rather than in immigration court. However, conduct that would expose an alien to prosecution under 18 U.S.C. 1546 may, in many cases, also fall under separate civil immigration laws.

In general, 18 U.S.C. 1546 refers to various forms of forgery, counterfeiting, or altering of immigration documents. It also covers those who impersonate others by using immigration documents. It is one of multiple statutes under which an alien can be removed or found to be inadmissible for immigration fraud. In Matter of Tima, 26 I&N Dec. 839, 844 (BIA 2016) [PDF version] [see article], the Board noted that the United States Court of Appeals for the Ninth Circuit held in Taggar v. Holder, 736 F.3d 886, 890-91 (9th Cir. 2013) [PDF version] that section 237(a)(1)(H) cannot be used to waive charges of removability under section 237(a)(3)(B)(iii). In Matter of Jimenez, 21 I&N Dec. 567, 570 (BIA 1996) [PDF version], the Board held that former section 212(c) [see article] could not be used to waive deportability under the identically worded former section 241(a)(3)(B)(iii).

C. Document fraud

Section 237(a)(3)(C) of the INA.

Section 237(a)(3)(C)(i) of the INA renders deportable an alien “who is subject to a final order for violation of section 274(c) of the INA. For your convenience, you may read the text of section 274C here: [PDF version].

Section 274C includes various provisions making it unlawful to forge or to counterfeit or to use forged or counterfeited documents to procure immigration benefits or to help others procure immigration benefits. An alien is removable under section 237(a)(3)(C)(i) if he or she is found by a final administrative order to have violated section 274C. As is always the case, an alien should never use, produce, or accept false immigration documents or assist another in doing so. If an alien is administratively charged with violating section 274C, it is essential to consult with an experienced immigration attorney immediately. Certain 274C cases may also fall under the regular inadmissibility provision for fraud or willful misrepresentation of a material fact to procure any benefit under the INA.

Limited Waiver of Document Fraud Deportability

Interestingly, section 237(a)(3)(C)(ii) provides for a limited waiver of deportability under section 237(a)(3)(C)(i). This is notable in that section 237(a)(3)(C)(i) is the only ground of deportability that may be waived in section 237(a)(3)(C). The Secretary of Homeland Security may waive section 237(a)(3)(C)(i) deportability in the following circumstance:

  • The alien is admitted for lawful permanent residence;
  • No previous civil money penalty was imposed against the alien under section 274C; and
  • The offense was incurred solely to assist, aid, or support the alien's spouse or child (and no other individual).

Accordingly, the section 237(a)(3)(C)(ii) waiver provision is extremely limited. It only applies to lawful permanent residents who had not previously been found to have violated section 274C and whose violation was committed solely on behalf of their spouse or child. Even if an individual meets the minimum statutory requirements for the waiver, it is important to remember that the waiver is discretionary. Furthermore, the waiver provision states explicitly that “[n]o court shall have jurisdiction to review a decision … to grant or deny a waiver under this clause.”

D. Falsely claiming citizenship

Section 237(a)(3)(D) of the INA.

Under section 237(a)(3)(D)(i), “[a]ny alien who falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit under [the INA] (including section 274A…) or any Federal or State law is deportable.” In short, this renders deportable an alien who falsely represents him or herself as a U.S. citizen, including for the purpose of procuring employment (see section 274A). There is a limited exception from deportability for falsely claiming citizenship found in section 237(a)(3)(D)(ii). In order to qualify for the exception, the alien must satisfy all of the following requirements:

  • Each natural parent (or adoptive parent) must be or have been a U.S. citizen (by either birth or naturalization);
  • The alien must have permanently resided into the United States prior to turning 16 years old; and
  • The alien must have reasonably believed at the time that he or she represented him or herself to be a U.S. citizen that he or she was a U.S. citizen.

Section 237(a)(3)(D) is identically worded to the parallel inadmissibility provision found in section 212(a)(6)(C)(ii) of the INA. We discuss inadmissibility and deportability for false claims to U.S. citizenship in detail in a full series of articles. Please see our article index on the subject to learn about this issue in-depth [see index].

Conclusion

Section 237(a)(3) contains several deportability provisions that pertain to failure to register under certain provisions and to fraud. As we noted, some of the deportability provisions in section 237(a)(3) are seldom used. However, it is important to add that conduct that may be generally described by section 237(a)(3) provisions may render an alien removable on other grounds. An alien who is facing criminal or civil charges that may implicate section 237(a)(3)(A), (3)(B), or (3)(C) should consult with an experienced immigration (and, if necessary, criminal) attorney immediately for case-specific guidance. An alien who is charged with having made a false claim to U.S. citizenship should consult with an experienced immigration attorney immediately, with the understanding that being found to have made a false claim to citizenship may not only result in removal, but also in permanent inadmissibility. In general, all of the section 237(a)(3) removal grounds are avoidable for an alien who is cognizant of his or her registration requirements and does not engage in document fraud or other types of immigration fraud.

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  1. Immigration Act of 1990 Today (Sep. 2017 Update). Section 10:24. National Immigration Project of the National Lawyers Guild. Available at Westlaw.