Introduction: The Facts and Decision in The Matter of Richmond, 26 I&N Dec. 779 (BIA 2016)

On July 28, 2016, the Board of Immigration Appeals (BIA) issued an important precedent decision regarding inadmissibility on the ground of making a false claim to U.S. citizenship under section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (INA) in the Matter of Richmond, 26 I&N Dec. 779 (BIA 2016) [PDF version].

In this article, we will discuss the specific facts of the case and the Board’s decision based on its analysis of section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (INA). When prompted, before reading the section on the Board’s ultimate decision, we encourage you to first read our full article about the Board’s analysis of the statute in the Matter of Richmond, 26 I&N Dec. at 783-89. That article will focus on the more general rules created by the decision. This article will illustrate how the Board’s reading of section 212(a)(6)(C)(ii)(I) applies to the facts of a specific case wherein an alien made a false claim to U.S. citizenship to achieve the “purpose” of avoiding removal proceedings under the INA.

Factual and Procedural History of the Case: Matter of Richmond, 26 I&N Dec. at 780-81

The respondent, a native and citizen of Trinidad and Tobago, was admitted to the United States as a nonimmigrant visitor in 2001;
The Department of State (DHS) opened removal proceedings against the respondent in 2007 on the basis that the respondent had overstayed his nonimmigrant visa and that he had been convicted of an immigration aggravated felony;1
The respondent conceded removability for overstaying his visa, but he denied the charge that he had been convicted of an aggravated felony, and he sought adjustment of status based on an approved immigrant visa filed by his U.S. citizen spouse;
The DHS argued that the respondent was ineligible for adjustment of status because he was inadmissible under section 212(a)(6)(C)(ii)(I) of the INA, because he had made a false claim to U.S. citizenship to DHS officers on two separate occasions in 2005;
The respondent argued that he had believed he was a U.S. citizen in 2005, that he could not read at the time he was admitted to the United States and, therefore, had not known that his passport was issued by Trinidad and Tobago, and that he had had no fear of being deported because he did not understand the purpose of the interview at which he was alleged to have made false claims to citizenship.

Ultimately, the Immigration Judge found that the respondent was removable under section 237(a)(1)(B) for having overstayed his visa. The Immigration Judge also found that the respondent was ineligible for adjustment of status because he was inadmissible under section 212(a)(6)(C)(ii)(I) for having made false claims to U.S. citizenship in order to obtain a benefit as defined under the INA. The Immigration Judge found that the respondent’s false claims to U.S. citizenship exempted him from further scrutiny or investigation by immigration officials. The Immigration Judge did not find credible the respondent’s claim that he had believed he was a U.S. citizen due to the circumstances of his entry into the United States, the presentence report, and the lack of corroborating testimony from his mother.

The respondent appealed to the BIA, and the Board initially dismissed his appeal. However, the respondent subsequently appealed that decision to the Second Circuit. In Richmond v. Holder, 714 F.3d 725 (2d Cir. 2013) [PDF version], the Second Circuit issued a published decision vacating the Board’s decision and remanding the case for an authoritative interpretation of section 212(a)(6)(C)(ii)(I). Accordingly, the Board took up the issue again, on remand from the Second Circuit, to provide an authoritative decision of the relevant statute and to then issue a decision based on that interpretation.

Positions of the Parties: Matter of Richmond, 26 I&N Dec. at 782

The respondent argued that the statute only applied to making a false claim to U.S. citizenship to obtain or achieve “identifiable” purposes or benefits in the INA or in Federal or State law. The respondent provided examples such as obtaining a passport, a Federal student loan, or employment. The respondent argued that because avoiding removal proceedings “is not enumerated” in the INA, it is not a “purpose or benefit” for purpose of inadmissibility under section 212(a)(6)(C)(ii)(I). Furthermore, the respondent argued that to reason otherwise would mean that any false claim to U.S. citizenship would trigger inadmissibility under the provision, unless it fell in the exceptions listed in section 212(a)(6)(C)(ii)(II), because any false claim carries the benefit of avoiding potential removal proceedings.

Additionally, the respondent argued that all false claims to avoid removal proceedings are immaterial to avoiding removal proceedings because the DHS can conduct independent investigations of all claims to U.S. citizenship. Lastly, the respondent argued that, in order to trigger inadmissibility, a false claim to U.S. citizenship must be made knowingly with the subjective intent of achieving or obtaining a “cognizable” “purpose or benefit.”

The DHS argued that, in order for inadmissibility to occur from a false claim to U.S. citizenship, the purpose or benefit sought must be governed by the INA or other Federal or State law(s), and the false claim must “objectively matter.” The DHS interpreted the provision more broadly than did the respondent, arguing that “purpose or benefit” not only encompasses claims to obtain “affirmative or positive” benefits under the INA or any other applicable law, but also includes false claims to U.S. citizenship to avoid negative legal consequences, which would include the avoidance of removal proceedings governed by the INA.

Issues Presented and Analysis: Matter of Richmond, 26 I&N Dec. at 783-89

We cover the Board’s discussion of the issues presented and its analysis of the statute in our full article on interpreting section 212(a)(6)(C)(ii)(I) of the INA [see article]. We encourage you to read that article for a clear understanding of the Board’s ultimate decision that we will discuss in the next section.

Applying the Interpretation to the Instant Case: Matter of Richmond, 26 I&N Dec. at 789-90

Based on its interpretation of the statute and of the facts of the case, the Board held that the respondent failed to meet his burden for establishing that he had not made a false claim to U.S. citizenship triggering his inadmissibility under section 212(a)(6)(C)(ii)(I) of the INA. The Board cited to Second Circuit precedent in Corcock v. Holder, 670 F.3d 400, 403 (2d Cir. 2012) [PDF version], which held that an adjustment of status applicant who is charged with being inadmissible under section 212(a)(6)(C)(ii)(I) is “required to prove a negative,” that is, that he or she did not falsely claim U.S. citizenship to achieve a proscribed purpose or to obtain a proscribed benefit.

The Board noted that the Immigration Judge had not found the respondent’s claims that he had reasonably believed himself to be a U.S. citizen to be credible. Accordingly, the Immigration Judge found that the respondent had made a false claim to U.S. citizenship with the subjective intent of avoiding immigration proceedings under the INA. Relying on the Matter of D-R-, 25 I&N Dec. 445, 453-54 (BIA 2011) [PDF version], the Board explained that an Immigration Judge is permitted to draw reasonable inferences based on evidence and that merely choosing between two “plausible alternative interpretations of the record is not clearly erroneous.” Based on its interpretation of the statute as described in the previous sections, the Board found that the respondent had made his false claims to U.S. citizenship while having “the subjective intent to achieve the ‘purpose’ under the [INA] of avoiding removal proceedings.”

The Board rejected the respondent’s assertion that because the DHS may conduct an investigation into a claim of citizenship, a false claim to U.S. citizenship does not affect whether a claimant would be identified as a non-citizen and found to be subject to removal proceedings. The Board instead agreed with the Immigration Judge’s opinion that such a misrepresentation would “completely exempt the respondent from further scrutiny or investigation by Immigration Officers.” To this effect, the Board cited to its precedent decision in the Matter of Pinzon, 26 I&N Dec. 189, 191 (BIA 2013) [PDF version], where it found that a U.S. citizen is not subject to the same scrutiny and requirements as an alien during the process of inspection (citing to Reid v. INS, 420 U.S. 619, 624-25 (1975) [PDF version]). The Board found that, because U.S. citizens are obviously not removable under the INA, the respondent failed to demonstrate that his false claim to U.S. citizenship would not “actually affect his ability to achieve his intended purpose of avoiding removal proceedings.”

For the foregoing reasons, the Board found that the respondent was inadmissible under section 212(a)(6)(C)(ii)(I) and was, therefore, ineligible for adjustment of status based on the approved immigrant visa petition filed by his U.S. citizen wife. The Board dismissed the respondent’s appeal.

Conclusion

In the Matter of Richmond, 26 I&N Dec. 779 (BIA 2016), the Board provides an authoritative interpretation of section 212(a)(6)(C)(ii)(I) of the INA [see article] and then applies that interpretation to a specific situation. The Board’s decision highlights how serious a finding of a false claim to U.S. citizenship under section 212(a)(6)(C)(ii)(I) is in the immigration context. In this case, the finding related to a finding that the beneficiary of an approved immediate relative petition was ineligible to adjust status to become a permanent resident. To be sure, a finding of inadmissibility under section 212(a)(6)(C)(ii)(I) can be fatal to an alien’s immigration prospects in the United States.

If an alien is charged with inadmissibility for having made a false claim to U.S. citizenship to achieve a proscribed purpose or to obtain a proscribed benefit, he or she should consult with an experienced immigration attorney immediately. Depending on the facts of the case, it may be possible to demonstrate that the false claim to U.S. citizenship does not fall within the scope of section 212(a)(6)(C)(ii)(I).

  1. The respondent had been convicted of assault in the Second Degree in New York in 2005, but his conviction was overturned in 2007 shortly before the commencement of removal proceedings. The Immigration Judge did not find that the respondent was removable for having been convicted of an aggravated felony.