USCIS-PM on Inadmissibility for Falsely Claiming U.S. Citizenship (1): Background

 

USCIS Policy Manual on Inadmissibility for a False Claim to U.S. Citizenship

 Inadmissibility for a False Claim to U.S. CitizenshipOn December 14, 2016, the United States Citizenship and Immigration Services (USCIS) updated its Policy Manual (PM) with information on inadmissibility for a false claim to U.S. citizenship [see PA-2016-09]. This USCIS's Policy Alert explains that the new guidance contained in the USCIS-PM replaces the previous guidance that is found in Chapter 40.6.2(c)(2) of the USCIS's Adjudicator's Field Manual (AFM) and in any related policy memoranda.

In this article, we will review the PM's introduction to the false claim to U.S. citizenship inadmissibility ground, the background of the provision, and how it is distinct from the inadmissibility provision for fraud or misrepresentation of a material fact to procure immigration benefits. This article is the first part of four articles covering the PM's guidance on the false claim to U.S. citizenship immigration ground. Please see the following links for the rest of the articles in this series:

To learn more about how the false claim of citizenship immigration ground is adjudicated, please see our articles on the Matter of Richmond, 26 I&N Dec. 779 (BIA 2016) [see article], and the Eighth Circuit decision in Godfrey v. Lynch, 811 F.3d. 1013 (8th Cir. 2016) [see article].

Relevant Statute

Section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA) covers inadmissibility for having made a false claim to U.S. citizenship. The following is the statute reproduced verbatim:

  • ii. Falsely claiming citizenship
    • I. In general - Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose of benefit under this chapter (including section 274A of this Act [8 U.S.C. 1324a]) or any other Federal or State law is inadmissible.
    • II. Exception - In the case of an alien making a representation described in subclause (I), if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such representation.

Background of the Inadmissibility Ground

8 USCIS-PM K.1 examines the purpose and background of the inadmissibility ground for making a false claim to U.S. citizenship [link].

Prior to September 30, 1996, there was no distinct inadmissibility provision for having made a false claim to U.S. citizenship. Rather, such a claim would have been covered by the inadmissibility provision found in section 212(a)(6)(C) of the INA for fraud or misrepresentation of a material fact to procure immigration benefits. However, on September 30, 1996, Congress created a distinct provision covering false claims to U.S. citizenship as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (Pub. L. 104-208 (Sep. 30, 1996)).

Under the current statutory scheme, which dates back to the passage of the IIRIRA, section 212(a)(6)(C) has two distinct clauses.

Section 212(a)(6)(C)(i) renders inadmissible any alien who commits fraud or willful misrepresentation in connection with obtaining an immigration benefit. Section 212(a)(6)(C)(ii), the provision that we are primarily concerned with in this article, renders inadmissible an alien who made a false claim to U.S. citizenship on or after September 30, 1996, in connection with obtaining any benefit or for any purpose under federal or state law, including under federal immigration law.

The effective date for the false claim to U.S. citizenship ground is significant. False claims to U.S. citizenship made on or after September 30, 1996, are covered by the distinct provision for inadmissibility for a false claim to U.S. citizenship under section 212(a)(6)(C)(ii). However, a false claim to U.S. citizenship made prior to the effective date of the IIRIRA is not covered by the current provision. Rather, a false claim to U.S. citizenship made before September 30, 1996, can only render an individual inadmissible for fraud or misrepresentation. In effect, this means that an individual who made a false claim to U.S. citizenship before September 30, 1996, would be in a more favorable immigration situation because he or she would be able to seek a waiver of inadmissibility under section 212(i) of the INA [see article] for fraud or misrepresentation. The section 212(i) waiver, however, only applies to fraud or misrepresentation and therefore cannot be applied to an individual who is found to be inadmissible under section 212(a)(6)(C)(ii). This distinction is often determinative in whether an individual will be able to seek lawful permanent resident status.

The following chart, courtesy of 8 USCIS-PM 7.1, compares the inadmissibility ground for fraud or willful misrepresentation to the inadmissibility for a false claim to U.S. citizenship:

Inadmissibility Ground Offense Description Made To Waiver
Fraud or Willful Misrepresentation INA 212(a)(6)(C)(i) Fraud or willful misrepresentation anytime or false claim to U.S. citizenship made before September 30, 1996 Misrepresentation material for any purpose or benefit under INA ( immigration benefit) Government official exercising authority under the immigration and nationality laws Waiver available for most applicants
False Claim to U.S. Citizenship INA 212(a)(6)(C)(ii) False claim to U.S. citizenship made on or after September 30, 1996 Misrepresentation of U.S. citizenship for any purpose or benefit under INA or any other federal or state law Any government or non-government official Waiver not available for most applicants

Criminal Provision

The PM notes that there is also a criminal (non-immigration) provision covering false claims to U.S. citizenship that is found in 18 U.S.C. 911. This statute provides:

Whoever falsely and willfully represents himself to be a citizen of the United States shall be fined under this title or imprisoned not more than three years, or both.

The USCIS-PM does not discuss the criminal provision found in 18 U.S.C. 911 in detail because the USCIS does not prosecute criminal offenses. However, the PM notes that a conviction in violation of 18 U.S.C. 911 may be used as evidence by the USCIS in support of a finding that an individual is inadmissible for having made a false claim to U.S. citizenship.

Conclusion

The false claim to citizenship inadmissibility provision in section 212(a)(6)(C)(ii) of the INA is an extremely punitive inadmissibility ground. Being subject to this inadmissibility ground will likely be fatal to one's prospects for seeking lawful permanent residence. An individual who is charged as inadmissible under section 212(a)(6)(C)(ii), or who has been found inadmissible, should consult with an experienced immigration attorney immediately for an evaluation and for guidance on how to proceed.

To learn more about the USCIS-PM's guidance on section 212(a)(6)(C)(ii) inadmissibility, please see the list of companion articles in the introduction.