USCIS-PM on Inadmissibility for Falsely Claiming U.S. Citizenship (3): Adjudication

False representation of U.S. citizenship

 

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

On 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 examine the USCIS-PM's guidance on the adjudication of false claims to U.S. citizenship as defined in section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA), and the USCIS-PM's guidance regarding limited statutory exceptions within the provision. This article is the third part of a four-part series on the USCIS-PM's section covering section 212(a)(6)(C)(ii) of the INA. Please consult the following links to see the other three articles in this series:

Introduction and Background [see article];
Determining Whether False Claim Was Made [see article]; and
Waivers [see article].

The first two articles in this series provide important background to the material covered in this article.

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 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.

Resources

This article will cover 8 USCIS-PM K.3 [link] and K.4 [link].

Evidence Required to Establish False Claim to U.S. Citizenship

The USCIS-PM begins by explaining that in order for a USCIS officer to find that an individual is inadmissible for making a false claim to U.S. citizenship, the evidence must demonstrate the following:

That the individual made the misrepresentation in-person, in writing, or through other means to a person or entity; and
That the individual made the misrepresentation for any purpose or benefit under the INA, or other federal or state law.

Please see our section on “purpose or benefit” in the second article of this series to learn more about what those terms mean [see section].

The USCIS-PM explains that “[t]here must be sufficient evidence that would lead a reasonable person to find that the foreign national falsely represented herself to be a U.S. citizen.” The PM explains that the reasonable person standard is “drawn from” the Supreme Court decision in INS v. Elias-Zacarias, 502 U.S. 478 (1992) [PDF version].

“Evidence” supporting a charge that an individual misrepresented him or herself as a U.S. citizen may include oral testimony, written testimony, or any documentation containing information that an individual misrepresented him or herself as a U.S. citizen. In the Matter of Bett, 26 I&N Dec. 437, 441-442 (BIA 2014) [PDF version], the Board held that the Form I-9, Employment Eligibility Verification, is admissible evidence in removal proceedings to support a charge of inadmissibility under section 212(a)(6)(C)(ii) (significant in cases where an individual falsely indicates that he or she is a U.S. citizen on the Form I-9).

Burden of Proof

When an applicant seeks an immigration benefit, he or she has the burden of establishing admissibility. This means that if the evidence suggests that the applicant is inadmissible, the applicant must establish that he or she is admissible. The burden is never on the government to show that the applicant is inadmissible (see the Matter of Arthur, 16 I&N Dec. 558 (BIA 1978) [PDF version]).

Where There is No Evidence of False Representation of U.S. Citizenship

The USCIS-PM explains that where there is no evidence suggesting that an applicant is inadmissible under section 212(a)(6)(C)(ii) for having made a false representation of U.S. citizenship for any purpose or benefit, the applicant will have met his or her burden of proof that he or she is not inadmissible under section 212(a)(6)(C)(ii).

Where There Is Evidence of False Representation of U.S. Citizenship

However, if there exists evidence that “would permit a reasonable person to conclude that the applicant is inadmissible under” section 212(a)(6)(C)(ii), an adjudicator must find that the applicant has not met his or her burden of proof for establishing admissibility. The applicant will be inadmissible for falsely claiming U.S. citizenship unless he or she is able “to successfully rebut the officer's inadmissibility finding.”

In order to rebut an inadmissibility finding for falsely claiming U.S. citizenship, the applicant has the burden of establishing one of the following facts “clearly and beyond doubt”:

The representation was not false;
The false representation was not a representation of U.S. citizenship;
The false representation was made prior to September 30, 1996;
The false representation was not made for purposes or benefit under the INA or any other federal or state law; or
The applicant did not know the claim was false, lacks the legal capacity to appreciate the claim, or qualifies for the statutory exception [in section 212(a)(6)(C)(ii)(II)].

To learn more about each of these facts, please see our full article on what constitutes a false claim to U.S. citizenship for inadmissibility purposes [see article].

If the officer adjudicating the case finds that the applicant successfully established one of the foregoing facts, the officer will find that the applicant successfully rebutted the inadmissibility finding and sustained the burden of proving that he or she is not inadmissible under section 212(a)(6)(C)(ii). However, if the officer finds that the applicant did not establish one of the facts, he or she will find that the applicant did not successfully rebut the inadmissibility finding and is, therefore, inadmissible.

The USCIS-PM explains that if the officer finds that the evidence for and against a finding of a false claim to U.S. citizenship “is of equal weight,” the applicant is inadmissible. Because the applicant must rebut an inadmissibility finding “clearly and beyond a doubt,” he or she will not get the benefit of the doubt in such a case. The USCIS-PM goes on to explain that as long as there is “a reasonable evidentiary basis to conclude that an applicant is inadmissible for falsely claiming U.S. citizenship,” the burden is on the applicant to overcome that reasonable basis with evidence.

Cases Where this Inadmissibility Ground Does Not Apply and Exceptions

The USCIS-PM explains that there are two situations in which section 212(a)(6)(C)(ii) is inapplicable. First, under section 245(h)(2)(A), this inadmissibility ground does not apply to special immigrant juveniles [see category] seeking adjustment of status. Secondly, under section 249 of the INA and 8 C.F.R. 249, it does not apply to applicants for registry benefits. Registry allows certain foreign nationals who have been present in the United States since January 1, 1972, to apply for lawful permanent resident status “even if currently in the United States unlawfully.”

In cases where this inadmissibility ground is applicable, there is a limited exception available in section 212(a)(6)(C)(ii)(II) [see statute]. This exception was added in 2000 as part of the Child Citizenship Act of 2000 (CCA), but it applies retroactively to false claims to U.S. citizenship made on or after September 30, 1996. In order to qualify for the exception, the applicant must satisfy the following requirements:

Each parent of the applicant (or each adoptive parent in the case of an adopted child) is or was a U.S. citizen (whether by birth or naturalization);
The applicant permanently resided in the United States prior to turning 16;
The applicant reasonably believed at the time of the representation that he or she was a U.S. citizen.

In order for this exception to apply, each of the applicant's parents must have been a U.S. citizen at the time of the false claim. If all requirements are not met, the applicant will not be able to qualify for this exception. Furthermore, the applicant must still establish that he or she reasonably believed at the time of the representation that it was true. The USCIS-PM notes that the existence of this exception does not preclude an applicant from establishing that he or she is not inadmissible for a false claim to U.S. citizenship on other grounds. This means an applicant who appears to check all of the above boxes may also rebut evidence indicating inadmissibility by establishing one of the facts discussed in the previous section of this article. The PM explains that the statutory exception “is one situation in which it would be reasonable to find that the foreign national did not know the claim to U.S. citizenship was false.”

Civil Penalty or Criminal Conviction for False Claim

The USCIS-PM explains that a false claim to U.S. citizenship may result in a civil penalty under section 274C of the INA, or in a criminal conviction for falsely and willfully representing to be a U.S. citizen under 18 U.S.C. 911.

In order to establish that an applicant is inadmissible for a false claim to U.S. citizenship under section 212(a)(6)(C)(ii), it must be established that “the applicant knowingly made the false claim for any purpose or benefit under the INA or any other federal or state law.” An inadmissibility determination does not rely on the applicant incurring civil or criminal penalties.

If an individual receives an order of civil penalty under section 274C based on a false representation of U.S. citizenship, that order will be sufficient to establish that the applicant is inadmissible for falsely claiming to be a U.S. citizen. In short, while such an order is not necessary for an inadmissibility finding, the issuance of the order is sufficient for such a finding. However, section 274C covers many cases of document fraud that do not relate to falsely claiming U.S. citizenship. Therefore, if the applicant is subject to a civil penalty under section 274C based on document fraud that does not have to do with a false claim to U.S. citizenship, the civil penalty would not support a finding of inadmissibility under section 212(a)(6)(C)(ii). In order for the section 274C civil penalty to be the basis of a finding of inadmissibility under section 212(a)(6)(C)(ii), it “must be specifically based on a finding that the foreign national made a false claim to U.S. citizenship.”

Conclusion

Although being found inadmissible is always serious, section 212(a)(6)(C)(ii) is a particularly punitive inadmissibility ground. This is because section 212(a)(6)(C)(ii) inadmissibility attaches for life and most individuals subject will not be eligible for a waiver of this ground of inadmissibility. For this reason, if section 212(a)(6)(C)(ii) inadmissibility comes up in the course of an immigration application, or if an individual has reason to believe he or she may be inadmissible on this ground, it is imperative to consult with an experienced immigration attorney immediately for guidance.

Please refer to the introduction to see our articles covering other topics relating to this inadmissibility ground.