Introduction: 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 for 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]. The Board held that, under section 212(a)(6)(C)(ii)(I), an alien is inadmissible if there is direct or circumstantial evidence that he or she made a false claim to U.S. citizenship with the subjective intent of obtaining a purpose or benefit under the INA or under any other U.S. federal or state law where such U.S. citizenship actually matters with regard to the purpose or benefit sought. The Board held that while there is a distinction between achieving a purpose and obtaining a benefit under the provision, avoiding removal proceedings qualifies as a “purpose” under section 212(a)(6)(C)(ii)(I).

In a separate article, we discuss the specific facts of the case and the Board’s application of its reading of the statute as discussed in this article to those facts. We encourage you to read that article to understand how the Board applies its reading of section 212(a)(6)(C)(ii)(I) to a specific situation where an alien falsely claimed U.S. citizenship in order to achieve the purpose of avoiding removal proceedings [see article].

In this article, we will examine the facts of the Matter of Richmond, the Board’s holding, and the effect of the new precedent decision going forward.

Issues Presented: Matter of Richmond, 26 I&N Dec. at 781-82

First, the following is the statute in question, section 212(a)(6)(C)(ii)(I), presented in its entirety:

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 or benefit under this Act (including section 274A) or any other Federal or State law is inadmissible.

The Board described the three issues before it as follows:

1. The meaning and scope of the phrase “for any purpose or benefit under [the INA] … or any other Federal or State law”;
2. The distinction, if any, between achieving a “purpose” and obtaining a “benefit”;
3. Whether making a false claim to U.S. citizenship to avoid removal proceedings qualifies as such a “purpose” or “benefit” to render an alien inadmissible.

The case had been remanded to the Board by the Second Circuit decision in Richmond v. Holder, 714 F.3d 725 (2d Cir. 2013) [PDF version]. The Second Circuit tasked the Board with providing an authoritative interpretation of section 212(a)(6)(C)(ii)(I) before applying that interpretation to resolve the instant case based on its particular facts. The issue before the Board was whether an alien who had made a false claim to U.S. citizenship to achieve the purpose of avoiding removal proceedings was covered by the inadmissibility provision in section 212(a)(6)(C)(ii)(I). In resolving that issue, the Board had to assess whether a false claim to U.S. citizenship was material to avoiding removal proceedings, an issue we discuss more in our companion article on this issue [see article].

Interpreting the Statute: Matter of Richmond, 26 I&N Dec. at 782-84

Before applying the statute to the instant case, the Board was tasked with providing an authoritative analysis of the statutory provisions by the Second Circuit.

Scope of the Provision: Matter of Richmond, 26 I&N Dec. at 784-87

First, the Board set out to determine the scope of section 212(a)(6)(C)(ii)(I). It noted that the Second Circuit had held that the “purpose or benefit” requirement cannot be read in such a way as to not exclude any false claims to U.S. citizenship. This is because the statute does not say that any false claim to U.S. citizenship causes inadmissibility, but rather provides a specific “purpose or benefit” requirement. To interpret the requirement as to encompass all false claims to U.S. citizenship would be to render the purpose or benefit requirement meaningless.

The Second Circuit noted that there remained ambiguity regarding the limitations of the “purpose or benefit” provision. Furthermore, the Second Circuit found that it was unclear whether the presence of a “purpose or benefit” was to be found objectively (based solely on whether U.S. citizenship status would actually affect the alien’s ability to achieve a purpose or obtain a benefit) or subjectively (based on the effect that the alien intended the false claim to U.S. citizenship to have). The Second Circuit also considered that a determination could be made using both subjective and objective tests.

The Board noted that in Castro v. Attorney General of U.S., 671 F.3d 356, 370 (3d Cir. 2012) [PDF version], the Third Circuit held that an alien’s false claim to U.S. citizenship to police after having been arrested did not constitute a “purpose or benefit” because it had not been shown that he was seeking a public benefit from the police. Furthermore, the Third Circuit found that it had not been demonstrated that the alien had made the false claim to U.S. citizenship in order to minimize the risk that his arrest would be reported to the Department of Homeland Security (DHS). The Third Circuit had considered the issue both from an objective and subjective analytic standpoint before finding that the alien was not, in fact, inadmissible.

In Valdez-Munoz v. Holder, 623 F.3d 1304, 1308-09 (9th Cir. 2010) [PDF version], the Ninth Circuit held that making a false claim to U.S. citizenship to border patrol agents in order to avoid inspection and gain entry into the United States fell under the scope of being for a “purpose or benefit.” In so doing, the Ninth Circuit distinguished between making such a misrepresentation to border patrol agents and making it to local police.

The Board also discusses two additional decisions limiting the scope of 212(a)(6)(C)(ii)(I). First, in Hassan v. Holder, 604 F.3d 915 (6th Cir. 2010) [PDF version], the Sixth Circuit held that the DHS had failed to show that an alien’s false claim to U.S citizenship on a loan application satisfied the “purpose or benefit” requirement because the DHS had not shown how being a U.S. citizen would have affected the loan application or that the alien had made the claim in hopes of affecting the loan application. Compare with Dwumaah v. Attorney General of U.S., 609 F.3d 586, 589 (3d Cir. 2010) [PDF version], where the Third Circuit held that an alien’s false claim on a loan application did satisfy the “purpose or benefit” requirement because being a U.S. citizen was a prerequisite for obtaining the loan.

New Rule for Scope of the Provision: Matter of Richmond, 26 I&N Dec. at 786-87

Based on its analysis of the relevant case law, the Board set forth the following requirements for determining whether a false claim to U.S. citizenship falls within the scope of section 212(a)(6)(C)(ii)(I) of the INA:

1. The Immigration Judge must find direct or circumstantial evidence demonstrating that the false claim to U.S. citizenship was made with the subjective intent of achieving a purpose or obtaining a benefit under the INA or under any other Federal or State law.
2. The presence of a “purpose or benefit” must be obtained objectively (meaning that the fact of U.S. citizenship must actually matter to the purpose or benefit sought).

The Board explained that these two requirements will exclude certain false claims of U.S. citizenship from triggering inadmissibility under section 212(a)(6)(C)(ii)(I).

Defining “Purpose” and “Benefit”: Matter of Richmond, 26 I&N Dec. at 787-89

The Board found that because the terms “purpose” and “benefit” are presented in the disjunctive (see “purpose or benefit”), the terms must be given separate meanings. The Board cited to the Supreme Court decision in Garcia v. United States, 469 U.S. 70, 73 (1984), in noting that it is a canon of statutory construction that terms connected in the disjunction should be given separate meanings.

First, the Board examined the term “benefit.” The Board held that a “benefit” must be identifiable and specifically enumerated in the INA or in any other Federal or State law. The Board listed several published federal court decisions that support this understanding of the term “benefit.” The following are some of the decisions cited by the Board:

Rodriguez v. Gonzales, 451 F.3d 60, 65 (2d Cir. 2006) [PDF version] – Holding that a false claim to U.S. citizenship to obtain a passport renders an alien inadmissible (see also the Matter of Barcenas-Barrera, 25 I&N Dec. 40, 44 (BIA 2009) [PDF version];
Ferrans v. Holder, 612 F.3d 528, 532 (6th Cir. 2010) [PDF version] – Holding that obtaining private sector employment qualifies as a “benefit” under section 237(a)(3)(D)(i));
Jamieson v. Gonzales, 424 F.3d 765, 768 (8th Cir. 2005) [PDF version] – Stating that obtaining entry into the United States is a benefit under the INA.

The Board found that avoiding removal proceedings “may not” be an identifiable “benefit” under the INA. Accordingly, the Board moved on to determine whether it was a “purpose” as defined under section 212(a)(6)(C)(ii)(I).

With regard to the definition of the term “purpose,” the Board noted that the INA does not explicitly define the use of the term in section 212(a)(6)(C)(ii)(I). The Board cited to its precedent decision in the Matter of Ordaz, 26 I&N Dec. 637, 639 (BIA 2015), [PDF version] in finding that it has the duty to “resolve any ambiguities and statutory gaps in a reasonable manner.”

For guidance, the Board looked to the Tenth Circuit decision in Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007) [PDF version], wherein the Court found that a false claim to citizenship to gain private sector employment had been made for a “purpose” under the INA. The Tenth Circuit based this conclusion on the reasoning that the false claim had been made for the purpose of circumventing the INA’s prohibition against U.S. employers knowingly hiring aliens who are not authorized for employment in the United States. In the Matter of Pinzon, 26 I&N Dec. 189, 191-92 (BIA 2013) [PDF version], the Board held that a false claim to U.S. citizenship made at a port of entry was done for the purpose of evading the INA’s requirement that aliens be inspected at a port of entry. Pinzon followed prior administrative precedent from the Matter of F-, 9 I&N Dec. 54, 56 (Reg’l Comm’r, Ass’t Comm’r 1960) [PDF version].

The Board further noted that some conduct that can be classified as obtaining a benefit may also qualify as achieving a purpose under the INA. For example the Board cited again to its decision in the Matter of Barcenas-Barrea, 25 I&N Dec. at 44, where it found that making a false claim to U.S. citizenship to obtain a passport (a benefit) was also made to achieve a purpose (showing it to an employer to indicate that he or she was employment authorized).

Accordingly, the Board found that making a false claim to U.S. citizenship in order to avoid inspection or removal proceedings is the making of a false claim to U.S. citizenship to achieve a “purpose” under the INA. This is because U.S. citizens are not subject to “the same level of scrutiny” at the port of entry as an alien, and because U.S. citizens are not subject to removal. Citing to Richmond v. Holder, 714 F.3d at 730, the Board held that avoiding removal proceedings is “the kind of purpose” that is covered by section 212(a)(6)(C)(ii)(I) of the INA.

Conclusion

The Board provided an authoritative analysis of the inadmissibility provision in section 212(a)(6)(C)(ii)(I) in Richmond. Notably, the Board provided clear and distinct definitions of “purpose” and “benefit” under the provision. The decision should help to clarify when a false claim to U.S. citizenship will be found to have been made for a reason — that is to achieve a certain purpose or to obtain a certain benefit — that will cause inadmissibility under the statute. The Board provided a two-part test that will guide adjudicators in determining whether a false claim to U.S. citizenship falls under section 212(a)(6)(C)(ii)(I). Firstly, the adjudicator may rely upon “direct or circumstantial” evidence to ascertain the subjective intent of the alien in making a false claim to U.S. citizenship. This is significant in that the inclusion of circumstantial evidence sweeps more broadly than only allowing reliance on direct evidence. Secondly, the false claim to U.S. citizenship must actually matter to the purpose or benefit sought. That is, if the purpose or benefit sought would not be affected by a claim to U.S. citizenship, the false claim to U.S. citizenship will not cause inadmissibility under the provision.

Being charged with inadmissibility under section 212(a)(6)(C)(ii)(I) is extremely serious and potentially fatal to future immigration prospects. An alien who is accused of being inadmissible under section 212(a)(6)(C)(ii)(I) should consult with an experienced immigration attorney immediately for a full consultation. In general, it is important to remember that an alien should never make such a false claim to U.S. citizenship. In addition to the illegality, which should be more than a sufficient enough deterrent alone, the risks of making such a claim far outweigh the short term “benefits.” If an alien is legitimately unsure as to whether he or she is a U.S. citizen, he or she should consult with an experienced immigration attorney for guidance on how to find out. Our section on Citizenship and Naturalization has numerous articles on the acquisition of U.S. citizenship from birth and through other means [see category].

As a reminder, please see our article about the facts of the Matter of Richmond and the Board’s decision to see how the Board applied its analysis to deciding the immediate issue [see article].