USCIS-PM on Inadmissibility for Falsely Claiming U.S. Citizenship (2): Determining Whether False Claim Was Made

fraud or misrepresentation

 

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 discuss the USCIS-PM's guidance on determining whether a false claim to U.S. citizenship as defined in section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA) was made. This is the second article in a four-part series on the USCIS-PM's guidance on the false claim to U.S. citizenship inadmissibility ground. Please see the following links for the other articles in this series:

Introduction and Background [see article];
Adjudication [see article]; and
Waivers [see 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.

Determining Whether False Claim to U.S. Citizenship Was Made

8 USCIS-PM K.1 examines the standard for determining whether inadmissibility for a false claim to U.S. citizenship applies in a given case [link].

The USCIS explains that, in order for section 212(a)(6)(C)(ii) to apply, all of the following must be true:

The individual made a representation of U.S. citizenship;
That representation was false;
The false representation was made knowingly;
The false representation was made for any purpose or attaining any benefit under the INA or under any other federal or state law.

The USCIS PM provides the following list of factors to be considered in making an admissibility determination when it appears that an individual has made a false representation of U.S. citizenship:

1. Determine whether the individual claimed to be a U.S. citizenship.
2. Determine whether the representation was made on or after September 30, 1996.
3. Determine whether the representation was false.
4. Determine whether the individual knew the claim to U.S. citizenship was false.
5. Determine whether the individual's false claim to U.S. citizenship was for the purpose of obtaining any benefit under the INA or under any other federal or state law.
6. Determine whether the individual timely retracted the false claim to U.S. citizenship.
7. Determine whether the individual is exempt from inadmissibility because an exception applies.
8. Determine whether a waiver of inadmissibility is available.

Pertaining to step 4, the PM explains that a determination whether the individual “falsely represented” to be a U.S. citizen includes consideration of whether the individual knew that his or her claim was false when it was made. We will discuss statutory exceptions for certain unknowing false claims to U.S. citizenship in the penultimate section of this article. Step 7 on the foregoing list refers to determining if an exception in section 212(a)(6)(C)(ii)(II) applies. The USCIS PM goes into further detail on each of the above points.

Form of Claim to Claim to U.S. Citizenship

The USCIS PM explains that, for the purpose of this inadmissibility ground, it is “irrelevant” whether a claim to citizenship is made under oath. The claim may be made in oral interviews, written applications, or in the submission of evidence. Moreover, unlike inadmissibility for fraud or misrepresentation of a material fact, the claim need not have been made before a U.S. government official exercising authority over immigration and nationality laws. The PM goes as far as to note that a claim to citizenship can be pertinent if it is made to “a private person, such as an employer.”

Claim to U.S. Citizenship vs Claim to U.S. Nationality

Section 212(a)(6)(C)(ii) specifically covers false claims to U.S. citizenship. It does not, however, cover claims to being a U.S. national but not a U.S. citizen (“noncitizen national”). If an individual establishes that he or she made a false claim to U.S. nationality but not to U.S. citizenship, he or she would potentially be chargeable as inadmissible under section 212(a)(6)(i) for fraud or misrepresentation but not under section 212(a)(6)(C)(ii). This issue is most likely to arise if the claim to citizenship and/or nationality came about by way of indicating, when completing a pre-April 3, 2009 edition of the Form I-9, Employment Eligibility Verification, that an individual was a “citizen or national.” The PM cities to U.S. v. Karouni, 379 F.3d 139 (9th Cir. 2004), wherein the Ninth Circuit held that affirmatively checking that box on the Form I-9 is not, by itself, sufficient to establish that an individual made a false claim to U.S. citizenship, because of the question's ambiguity. However, the USCIS-PM states that, in such a case, the burden would be on the applicant to establish that he or she understood the distinction between “U.S. citizen” and “U.S. national” and that the intent when completing the Form I-9 was to represent him or herself as a U.S. national and not as a U.S. citizen. To this effect, the USCIS-PM cited to the Eighth Circuit decision in Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004) [PDF version]. This issue does not arise with the April 3, 2009 edition of the Form I-9 or any subsequent editions because the Form I-9 now differentiates between “Citizen of the United States” and “Non-citizen National of the United States.” Please see our full article to learn about the distinction between U.S. citizens and noncitizen nationals [see article].

Claim to U.S. Citizenship Must be Made On or After September 30, 1996

As we have discussed, in order to be inadmissible under section 212(a)(6)(C)(ii) of the INA, the individual's false claim to U.S. citizenship must have been made on or after September 30, 1996. Depending on the circumstances of the claim, an individual who made a false claim to U.S. citizenship prior to that date may still be found to be inadmissible for committing fraud or misrepresentation of a material fact in section 212(a)(6)(i).

Knowledge that Claim to U.S. Citizenship Was False

The USCIS-PM explains that adjudicators should determine whether a claim to U.S. citizenship was “false” and whether the applicant knew such claim was “false.” In order for a claim to be “false,” the applicant must have “knowingly” misrepresented him or herself to be a U.S. citizen. However, the USCIS-PM explains that where the evidence “reasonably calls the foreign national's admissibility into question,” the burden is upon the applicant to establish that he or she did not knowingly make a false claim to U.S. citizenship. For these reasons, an individual may claim that he or she did not know that a claim to U.S. citizenship was false as a defense. In such a case, the individual “must establish clearly and beyond a doubt that he or she did not know the claim was false.” Whether the applicant can meet the burden will depend on the “circumstances of each particular case.”

If an individual refuses to answer a question, it is not necessarily proof that he or she made a false representation of U.S. citizenship. However, such refusal may be considered in making a determination that the individual failed to establish that he or she was admissible.

The USCIS-PM explains that an adjudicator may find that an individual lacked the capacity to know that he or she was making a false claim to U.S. citizenship. However, it is clear that not knowing that a false claim to U.S. citizenship causes inadmissibility is not proof of lacking capacity. In determining whether an individual lacked the capacity to make a knowingly false claim to U.S. citizenship, the USCIS may consider all available evidence, including the individual's:

Age;
Level of education;
Background;
Mental capacity;
Level of understanding;
Ability to appreciate the difference between true and false; and
Other relevant circumstances.

The USCIS-PM explains that lack of capacity most often arises in the case of an individual who made a false claim when under the age of 18. The USCIS-PM is careful to note that merely having made the claim when under the age of 18 does not mean that the individual lacked the capacity to know that the claim was false. Rather, the USCIS explains that the capacity assessment for an individual under the age of 18 “relies on determining whether the foreign national who made the false claim … had the maturity and judgment to understand and appreciate the nature and consequences of his or her actions at the time the false claim was made.”

The burden is always on the individual, and not the government, to establish the lack of capacity at the time a false claim was made.

For Any Purpose or Benefit Under the INA or Any State or Federal Law

First, the USCIS-PM notes that the construction of section 212(a)(6)(C)(ii) covers any “purpose or benefit” rather than “purpose and benefit.” Therefore, having falsely claimed U.S. citizenship for a purpose will cause inadmissibility as will falsely claiming U.S. citizenship for a benefit. For example, the USCIS-PM explains that falsely claiming U.S. citizenship to achieve a purpose will cause inadmissibility even if it was not connected to an application for a specific benefit. Had the statute been “purpose and benefit,” the record would have to establish that the false claim to citizenship was for a purpose and a benefit. For this reason, it will be important to distinguish the terms “purpose” and “benefit.”

The USCIS-PM explains that in order for a false claim of U.S. citizenship to cause inadmissibility, the false claim must be “material” to a purpose or for a benefit sought. This means that if not for the false claim to U.S. citizenship, the individual would not be able to achieve the purpose or obtain the benefit connected to the false claim. In order to be inadmissible for a false claim to U.S. citizenship, the individual must have made the false claim with the “subjective intent” of obtaining a benefit or achieving a purpose under the INA or under any other federal or state law. Furthermore, the false claim must be material to the purpose or benefit. If the claim to U.S. citizenship is immaterial to the purpose or benefit, the individual would not be inadmissible under section 212(a)(6)(C)(ii) of the INA.

Regarding a false claim to obtain a benefit, the “benefit must be identifiable and enumerated in the INA or any other federal or state law.” If it appears that the individual made a false claim to U.S. citizenship in seeking such a benefit, and it appears U.S. citizenship was material to the benefit sought, the individual has the burden to show that he or she did not have the subjective intent of obtaining the benefit. The USCIS-PM provides the following non-exhaustive list of benefits that may qualify:

A U.S. passport;
Entry into the United States; and
Obtaining employment, loans, or any other benefit under federal or state law, if citizenship is a requirement for eligibility.

Where a “purpose” rather than a “benefit” is concerned, the USCIS-PM explains that adjudicators must determine whether U.S. citizenship is material to the purpose. U.S. citizenship is material if “it has a natural tendency to influence the applicant's ability to achieve the purpose.” If U.S. citizenship is not material to the purpose, the individual's false claim would not render him or her inadmissible “unless the evidence provides a basis for finding that the foreign national made the false claim to obtain a benefit under federal or state law.” The USCIS-PM explains that the term “purpose” encompasses avoiding negative legal consequences such as:

Removal proceedings;
Inspection by immigration officials; and
Prohibition on unauthorized employment.

The USCIS-PM, however, explains that a “purpose” is “not limited to avoiding negative legal consequences.” As an example, the USCIS-PM states that if an alien makes a false claim of U.S. citizenship to obtain a benefit that is not restricted to U.S. citizens, but that he or she made the false claim “to avoid an eligibility or evidentiary requirement that does not apply to citizens seeking the benefit,” he or she would be considered to have made a false claim to U.S. citizenship for a “purpose” as defined in section 212(a)(6)(C)(ii)(I). The PM offers four additional examples:

1. The USCIS-PM cites to Castro v. Att'y. Gen. of the U.S., 671 F.3d 356, 368 (3d Cir. 2012) [PDF version], where the Third Circuit held that an alien who was in the United States without authorization and who claimed to have been born in Puerto Rico in the course of an arrest for disorderly conduct had not falsely claimed U.S. citizenship with the subjective intent of achieving the purpose of avoiding immigration proceedings. The Third Circuit reasoned that the police could not have conferred such a result and that the alien's status was immaterial to the arrest proceedings.
2. Next, the PM discusses the Matter of Richmond, 26 I&N Dec. 779 [see article]. In this case, the Board found that an individual who had falsely claimed that he was a U.S. citizen under Department of Homeland Security (DHS) interrogation failed to establish that he had not made the claim with the subjective intent of achieving the purpose of avoiding removal proceedings.
3. The third example references the Board of Immigration Appeals (BIA) decision in the Matter of Bett, 26 I&N Dec. 437 (BIA 2014) [PDF version]. The respondent in the Matter of Bett had a job offer but lacked employment authorization. He indicated that he was a U.S. citizen on the Form I-9 to avoid having to procure and present a valid and unexpired employment authorization document (EAD). This was determined to be a false claim to U.S. citizenship made for the purpose of avoiding additional requirements under the immigration laws.
4. In the final example, the USCIS-PM takes the case of a foreign national applying for a license under state law. In the example, licensure is not restricted to U.S. citizens, but foreign nationals have additional evidentiary requirements that U.S. citizens do not. If the foreign national makes a false claim to U.S. citizenship to avoid the additional evidentiary requirements, he or she would be inadmissible for having made the false claim for the purpose of avoiding the additional requirements under state law.

The USCIS-PM next explains that an alien can only be inadmissible under section 212(a)(6)(C)(ii) for making a false claim to U.S. citizenship for his or her own benefit. This means that falsely claiming that a different alien is a U.S. citizen would not cause inadmissibility for the alien making the claim under section 212(a)(6)(C)(ii) (meaning such a claim on the behalf of another is not for a “purpose” under the statute). However, the PM notes that such a claim could, depending on the facts of the case, render the alien making the claim inadmissible for alien smuggling. To this effect, the PM cites to the Matter of M-R-, 6 I&N 259, 260 (BIA 1954).

The PM explains that if an individual makes a false claim to U.S. citizenship or nationality at a port-of-entry and is allowed into the United States, he or she has not been admitted. This is because U.S. citizens and nationals are not subject to the inspection process that foreign nationals are. The return of a U.S. citizen or national to the United States cannot be prevented by immigration officials. The Supreme Court held in Reid v. INS, 420 U.S. 619 (1975) [PDF version] that such entry constitutes entry without inspection. This means that an alien who makes a false claim to U.S. citizenship to avoid inspection at a port-of-entry, and who enters subsequent to such false representation, may be inadmissible for both the false claim and for being an alien who is present in the United States without inspection or parole. If the alien only made a false claim to U.S. nationality for such a purpose, he or she would still be subject to inadmissibility as an alien present without inspection and admission or parole. The USCIS-PM adds that a false claim to being a lawful permanent resident (LPR) returning from a temporary trip abroad who is not seeking admission could also cause inadmissibility as an alien present without inspection and admission or parole.

Finally, the USCIS-PM explains that if an applicant's attorney or agent makes a false representation that the applicant for a benefit is a U.S. citizen, the applicant will be held responsible “if it is established that the applicant was aware of the action taken by the representative” on his or her behalf. This includes any oral misrepresentations made at the border to assist an alien in entering the United States illegally. An individual cannot deny responsibility for a misrepresentation made on the advice of another unless he or she establishes that he or she lacked the capacity to exercise judgment.

Timely Retraction of False Claim

Longstanding precedent regarding the provision for inadmissibility for fraud or misrepresentation holds that an alien who makes a “timely retraction” of a fraud or misrepresentation is not inadmissible for fraud or misrepresentation. Thus, a timely retraction can be used as a defense. The USCIS-PM states that, in principle, this applies to false claims to U.S. citizenship as well.

The PM explains that in order for a retraction to be an effective defense from inadmissibility, it must be “voluntary and timely.” This means that the applicant must correct his or her misrepresentation “before an officer or U.S. government official challenges the applicant's truthfulness and before the conclusion of the proceeding” in which the misrepresentation was made. Provided that those requirements are met, a retraction can be “voluntary and timely” even if it is made in response to an officer's question where the applicant is given the chance “to explain or correct a potential misrepresentation.” However, admitting to the false representation after the USCIS has challenged the veracity of the claim does not constitute a timely retraction. To this effect, the PM cites to the Matter of Namio, 14 I&N 412 (BIA 1973) [PDF version].

The “before the conclusion of the proceeding” requirement is restrictive. For example, the PM states that if the false representation is made on a Form I-9, the applicant could not use as a defense that he or she admitted to the false representation on a subsequent adjustment of status application. This is because the false claim was complete as soon as the Form I-9 was submitted.

Conclusion

In general, any false claim to U.S. citizenship made to a government official or on a government form runs the risk of subjecting an individual to adverse immigration repercussions — and possible criminal liability. For these reasons, non-citizens should refrain from falsely representing themselves as U.S. citizens. If an individual is charged as being inadmissible for having made a false claim to U.S. citizenship, or is seeking an immigration benefit but has reason to believe that he or she may be inadmissible, the individual should consult with an experienced immigration attorney immediately for a full evaluation and expert guidance.

To learn more about the USCIS-PM's policies regarding this inadmissibility ground, please see the related articles that we provide links to in the introduction.