Introduction: Matter of Zhang, 27 I&N Dec. 569 (BIA 2019)

On June 28, 2019, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Zhang, 27 I&N Dec. 569 (BIA 2019) [PDF version].

The Board’s most significant conclusion in Matter of Zhang is that the deportability provision for false representations of U.S. citizenship under section 237(a)(3)(D)(i) of the Immigration and Nationality Act (INA) does not include an “intent” requirement. That is, the statute does not require an alien to have intended to make a false claim to U.S. citizenship. This result also implicates the nearly identical inadmissibility provision for false claims to U.S. citizenship found at section 212(a)(6)(C)(ii)(I) of the INA.

In the second part of the decision, the Board held that while a Form N-550, Certificate of Naturalization, is evidence of U.S. citizenship, it does not confer citizenship status in and of itself. In the instant case, the respondent had illegally purchased his Form N-550.

In this article, we will examine the half of Matter of Zhang that deals with deportability for false claims to U.S. citizenship. Please see our hub article on the Matter of Richmond, 26 I&N Dec. 779 (BIA 2016) [PDF version] for a discussion on the Board’s most significant precedent on the corresponding inadmissibility provision [see article]. We discuss the Board’s holding in the Matter of Zhang on Certificates of Naturalization in a separate article [see article].

Factual and Procedural History: 27 I&N Dec. 569, 569-70

The respondent, a native and citizen of the People’s Republic of China, was admitted to the United States as a lawful permanent resident in 1991. After being admitted, the respondent, through intermediaries, purchased a Form N-550, Certificate of Naturalization, from an individual who was an officer of the former Immigration and Naturalization Service (INS). That former INS officer was later convicted of illegally selling Certificates of Naturalization.

The respondent was charged as removable under section 237(a)(3)(D) of the INA for having falsely claimed to be a U.S. citizen. The Immigration Judge found, after considering the respondent’s own testimony, that he had been unable to pass the English and civics tests for naturalization and had never received a Form N-445, Notice of Naturalization Oath Ceremony, or participated in the naturalization interview process. A current officer of the Department of Homeland Security (DHS) testified that the respondent had obtained his Certificate of Naturalization through unlawful means and had never properly completed the naturalization process to merit being issued the Certificate.

The Immigration Judge concluded that the respondent was removable under section 237(a)(3)(D). In rendering the decision, the Immigration Judge made no finding with regard to whether the respondent knowingly made a false representation of U.S. citizenship. Instead, the Immigration Judge stated that the “Court is mindful that the respondent either knowingly or unknowingly tried to obtain United States citizenship through a shortcut.”

After finding the respondent removable, the Immigration Judge granted the respondent’s request for cancellation of removal. The respondent appealed from the decision finding him removable to the BIA. The Government did not appeal the Immigration Judge’s decision to grant the respondent cancellation of removal. Thus, the issue only before the Board was whether the Immigration Judge had properly found the respondent removable under section 237(a)(3)(D) of the INA.

Statute and Main Issue: 27 I&N Dec. 569, 569 n.1, 570

Section 237(a)(3)(D)(i) of the INA — the statute under which the Immigration Judge found the respondent removable — reads as follows:

Any alien who falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit under this Act (including section 274A) or any Federal or State law is deportable.

The first question before the Board was whether there is an implied “intent” requirement in section 237(a)(3)(D)(i), that is, must an alien have intended to falsely claim U.S. citizenship in order to be deportable under the provision?

Although the issue before the Board involved section 237(a)(3)(D)(i), its reasoning also implicates the corresponding inadmissibility provision for false claims to U.S. citizenship found at section 212(a)(6)(C)(i)(I) of the INA. This is because the content of the two provisions is identical but for the fact that section 212(a)(6)(C)(i)(I) applies to inadmissibility and section 237(a)(3)(D)(i) applies to deportability.

The respondent argued on appeal that in order to find an alien removable under section 237(a)(3)(D) of the INA, it must be shown that the false claim to U.S. citizenship was “willful” or “knowing.” The respondent also stated that he had always believed that he was a U.S. citizen. For this reason, he argued that he had not obtained the Certificate of Naturalization for any “benefit” under the INA.

The DHS took the position that the plain language of section 237(a)(3)(D) of the INA does not require intent or a culpable mental state. Thus, its position was that the respondent was removable even though the Immigration Judge made not finding as to whether he had intended to falsely represent himself as a U.S. citizen.

The respondent also argued that he was a U.S. citizen and thus not subject to removal proceedings. We address that issue in our companion article on the Matter of Zhang [see article].

Board Concludes that Statute Has No Intent Requirement: 27 I&N Dec. 569, 570-73

The Board began its analysis by referring back to its 2016 precedent in the Matter of Richmond, 26 I&N Dec. 779 (BIA 2016), wherein it provided a comprehensive analysis of section 212(a)(6)(C)(ii)(I), the inadmissibility provision for false representations of U.S. citizenship which is “virtually identical” to section 237(a)(3)(D). In Matter of Richmond, the Board left unresolved whether the inadmissibility provision required an alien to have “knowingly” made a false claim to citizenship because it was undisputed in that case that the respondent had knowingly made a false claim to U.S. citizenship.

Citing to the Supreme Court of the United States’ decision in K Mart Corp. v. Cartier, Inc., 486, U.S. 281, 291 (1988) [PDF version], the Board explained that it had “a duty to follow the plain and unambiguous language of the statute.” The Board quoted from the Supreme Court decision in Robinson v. Shell Oil Co., 519 U.S. 337, 340-41 (1997) [PDF version], wherein the Court explained that adjudicators must determine if the meaning of statutory text is plain by referring “to the language itself, the specific context in which the language is used, and the broader context of the statute as a whole.”

The Board concluded that the plain language of section 237(a)(3)(D)(i) includes no requirement that the alien must have intended to have falsely represented him or herself as a U.S. citizen. Instead, the statute provides only that the alien is deportable if he or she “falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit.” In a footnote, the Board contrasted this statutory language with the inadmissibility provision at section 212(a)(6)(C)(i) of the INA, which renders inadmissible an alien if he or she willfully misrepresents a material fact in order to procure certain benefits. The Board drew a negative inference from the fact that neither the inadmissibility nor deportability provision covering false claims to U.S. citizenship included a willful requirement.

The Board then addressed the narrow exception to deportability for false claims to U.S. citizenship found at section 237(a)(3)(D)(ii) (a nearly identical exception in inadmissibility context is codified at section 212(a)(6)(C)(ii)(II)). Section 237(a)(3)(D)(ii) provides as follows:

In the case of an alien making a representation described in clause (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 deportable under any provision of this subsection based on such representation.

Thus, “Congress carved out a narrow exception to this provision for those aliens whose parents are or were United States citizens; who permanently resided in the United States prior to the age of 16 years; and who reasonably believed that they were United States citizens when they made such a claim.” The Board drew a negative inference from this exception, finding that it “indicates that an alien is not required to know that a claim to citizenship is false, because if Congress had intended to include a knowledge or willfulness requirement in section 237(a)(3)(D)(i), there would have been no need for a good faith exception.” In a footnote, the Board addressed one additional point relating to the section 237(a)(3)(D)(ii) exception. It noted that the respondent “never argued that he falls within the exception relating to a reasonable belief under section 237(a)(3)(D)(ii) of the Act.”

Although the instant matter arose in the jurisdiction of the United States Court of Appeals for the Eighth Circuit, the Board found the decision of the United States Court of Appeals for the Eleventh Circuit in Patel v. U.S. Attorney General, 917 F.3d 1319, 1326 n.5 (11th Cir. 2019) [PDF version], to be instructive. The Eleventh Circuit in Patel stated that it “seriously doubt[ed]” that a false claim to citizenship must be knowing in order to establish inadmissibility under section 212(a)(6)(C)(ii)(I) of the INA because the text of the statute did not mention a “knowing” or “willful” requirement. Furthermore, the Eleventh Circuit added that reading the statute as having an implied knowing requirement would make the limited exception at section 212(a)(6)(C)(ii)(II) superfluous. In an Valadez-Munoz v. Holder, 623 F.3d 1304, 1309 n.7 (9th Cir. 2010) [PDF version], the United States Court of Appeals for the Ninth Circuit had observed that the inadmissibility provision for false claims to U.S. citizenship requires only falsity, in contrast to the inadmissibility provision for willful misrepresentation of a material fact.

Taken together, the Board concluded that “[t]he existence of the exception in section 237(a)(3)(D)(ii) of the Act similarly shows that Congress chose to exclude a scienter requirement from section 237(a)(3)(D)(i).” The Board thus concluded that in light of the plain language of section 237(a)(3)(D)(i), it need not be established that the alien intended to make a false claim to U.S. citizenship in order for the alien to be deportable. “An alien need only falsely claim to be a United States citizen for any purpose or benefit under the Act or any Federal or State law to be deportable.”

The Board found the respondent’s reliance on two BIA precedents to be unavailing. The respondent relied on Matter of Barcenas-Barrera, 25 I&N Dec. 40 (BIA 2009) [PDF version], wherein the Board concluded that an alien who was convicted of willingly and knowingly making a false representation of birth in the United States on a passport application was inadmissible under section 212(a)(6)(C)(ii). While that case did involve an intentional false claim, the Board noted in the instant matter that it did not hold that intent was required. The Board also rejected the respondent’s reliance on Matter of Wong, 11 I&N Dec. 712 (BIA 1966) [PDF version]. The Board noted, first, that Matter of Wong predated the enactment of the statute at issue in the instant matter. Second, the Board explained that “[t]hat case involved the narrow question of whether an alien was ‘inspected’ for purposes of adjustment of status if her false claim to citizenship at the time of admission was made in good faith,” and did not stand for the broader proposition that section 237(a)(3)(D)(i) contains an intent requirement.

Board Concludes False Claim Was to Obtain Benefit Under the INA: 27 I&N Dec. 569, 573

The Board noted that the Immigration Judge concluded that the respondent falsely claimed U.S. citizenship after unlawfully obtaining a Certificate of Citizenship, and used the Certificate to obtain a U.S. passport. Citing to Matter of Barcenas-Berrera, 25 I&N Dec. at 44, the Board explained that a U.S. passport “is clearly a ‘benefit’ under the Act.” The Immigration Judge also found that the respondent used his passport to travel abroad and reenter the United States, which he also found to be a “benefit” under the INA. The Board found no clear error in the Immigration Judge’s factual findings. For these reasons, the Board found that the Immigration Judge properly found the respondent removable under section 237(a)(3)(D) of the INA.

Conclusion

The Board’s conclusion in Matter of Zhang is significant in the context of inadmissibility and deportability for false claims to U.S. citizenship. The Board’s decision makes clear that an Immigration Judge does not need to find that the respondent “intentionally” made a false claim to citizenship. Rather, so long as the alien made a false claim to citizenship for any requisite purpose or benefit, he or she is either inadmissible or deportable, depending on his or her status at the time. In effect, the decision removes one key line of defense for aliens who are charged with having made a false claim to U.S. citizenship that exists in certain other contexts such as when an alien is charged with willfully misrepresenting a material fact in order to procure certain benefits.

It is important for noncitizens to remember that falsely claiming U.S. citizenship comes with potentially fatal immigration consequences. Even an innocent false claim to U.S. citizenship can, depending on the circumstances, lead to a finding of inadmissibility or deportability. An alien facing any inadmissibility or deportability charges, or who fears that he or she may be liable, should consult with an experienced immigration attorney for case-specific guidance.