USCIS-PM on Inadmissibility for Falsely Claiming U.S. Citizenship (4): Waivers

temporary nonimmigrant waiver

 

Introduction: USCIS-PM on Waivers for Inadmissibility for 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 very limited waivers available to an individual who was found to be inadmissible under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA) for having made a false claim to U.S. citizenship to achieve a purpose or obtain a benefit under the INA or any other federal or state law. This article is the fourth part of our four-part series on the subject. Before reading this article, please see the first three articles of this series to learn about the background of the inadmissibility ground, what constitutes inadmissibility for a false claim to U.S. citizenship, and adjudicating cases in which the evidence suggests that an applicant is inadmissible under section 212(a)(6)(C)(ii):

Background [see article]
Determining Whether False Claim Was Made [see article]; and
Adjudication [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 Immigration and Nationality Act (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.

Severity of the Immigration Ground

Section 212(a)(6)(C)(ii) is a particularly severe immigration ground for two reasons.

Firstly, it attaches without limited duration. This means that if an individual is found to be inadmissible under section 212(a)(6)(C)(ii), that inadmissibility is for life and will not go away with the passage of time.

Secondly, there is no generally applicable waiver of this inadmissibility. For example, if an individual is found to be inadmissible under section 212(a)(6)(C)(i) for fraud or misrepresentation of a material fact to obtain an immigration benefit, a specific waiver of inadmissibility for section 212(a)(6)(C)(i) is provided in section 212(i) [see article]. While individuals in most cases may not be eligible for this waiver, it nevertheless gives some who are inadmissible for fraud or misrepresentation a narrow path to permanent resident status. However, the section 212(i) waiver does not apply to section 212(a)(6)(C)(ii) inadmissibility for a false claim to U.S. citizenship. Because there is no generally applicable waiver for this inadmissibility ground, individuals who are found subject to section 212(a)(6)(C)(ii) will have severely limited immigration prospects.

Please see our section comparing section 212(a)(6)(C)(i) inadmissibility to section 212(a)(6)(C)(ii) inadmissibility [see section].

This article will cover material found in 8 USCIS-PM K.4 [link].

Cases Where Inadmissibility Does Not Apply

Under section 245(h)(2)(A), the penalty of inadmissibility for making a false claim to U.S. citizenship does not apply to a special immigrant juvenile who is seeking adjustment of status. Likewise, under section 249, it does not apply to an applicant for registry (which allows certain individuals present in the United States since January 1, 1972, to apply for lawful permanent resident status even if currently in the United States unlawfully). The USCIS-PM explains that, while section 212(a)(6)(C)(ii) does not necessarily bar adjustment of status based on registry benefits for residence in the United States since before January 1, 1972 (see section 249), the causes of such inadmissibility could support a finding that the applicant is not a person of good moral character [see article].

Therefore, special immigrant juveniles seeking adjustment of status or applicants for registry may seek adjustment without first obtaining a waiver of section 212(a)(6)(C)(ii) inadmissibility because this inadmissibility ground would not apply to them in the first place.

Adjustment Cases Where No Waiver is Available

The availability of a waiver of inadmissibility generally depends on the benefit sought. The available waivers for section 212(a)(6)(C)(ii) inadmissibility are particularly limited. To that effect, individuals seeking lawful permanent resident status in the following categories would generally not be eligible for a waiver of section 212(a)(6)(C)(ii) inadmissibility:

Immediate relative;
Under an immigrant preference category (other than EB4 special immigrant juvenile);
Diversity immigrant;
Under the Cuban Adjustment Act of 1966 [see article]; or
Under any other statute that does not provide authority to waive the ground.

Exceptions for Adjustment of Status

Under section 209(c), an individual seeking adjustment of status as a refugee or asylee is eligible for a discretionary waiver of section 212(a)(6)(C)(ii) inadmissibility. The USCIS-PM also explains that under section 245A(d)(2)(B)(i), a legalization applicant is also eligible for a discretionary waiver of section 212(a)(6)(C)(ii) inadmissibility. These waivers may be granted for humanitarian purposes, to ensure family unity, or because the granting of a waiver is determined to be in the public interest. It further provides that an individual seeking adjustment of status “under any other basis that specifically permits a waiver of this ground of inadmissibility” would be eligible.

Nonimmigrant Waivers (U and T)

Although not discussed in the PM, applicants for U and T nonimmigrant visas are eligible for a discretionary waiver of inadmissibility for nearly all grounds of inadmissibility, including section 212(a)(6)(C)(ii). Both U and T nonimmigrant statuses offer a path to adjustment of status provided that all of the requirements are met. Please see our sections on U nonimmigrant status [see category] and T nonimmigrant status [see category] to learn more.

Permission to Enter as a Nonimmigrant

An individual who is inadmissible under section 212(a)(6)(C)(ii) may seek permission to enter the United States temporarily as a nonimmigrant under section 212(d)(3)(A). Under section 212(d)(3)(A)(i), an individual may seek a waiver in the course of applying for a visa at a consulate. Under section 212(d)(3)(A)(ii), the individual may, with appropriate documentation or a waiver, seek temporary admission as a nonimmigrant at a port-of-entry. The Attorney General will have discretion to “prescribe conditions, including extraction of bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission.”

In short, section 212(d)(3)(A) offers aliens who are inadmissible for making a false claim to U.S. citizenship a path to be admitted temporarily as nonimmigrants. However, it is important to remember that section 212(d)(3)(A) does not waive inadmissibility for seeking lawful permanent resident status or for any purpose other than seeking temporary admission as a nonimmigrant. Furthermore, the waiver is discretionary, and the Attorney General may prescribe conditions on the individual's admission in granting the temporary waiver.

Removal Context

Section 237(a)(3)(D) provides a corresponding deportability ground for making a false claim to U.S. citizenship. Please see our full article to learn more [see article]. In removal or deportation proceedings, an individual may seek defense from removal in the form of cancellation of removal [see category for articles]. Furthermore, falsely claiming U.S. citizenship is not a bar to statutory withholding of removal [see article] or relief under the Convention Against Torture [see article].

Conclusion

Inadmissibility for falsely claiming U.S. citizenship is one of the most severe inadmissibility grounds. In most cases, an individual who is inadmissible for a false claim to U.S. citizenship will be permanently barred from adjustment of status and most other immigration benefits. For this reason, individuals should always refrain from making what could in any way be construed as a false claim to U.S. citizenship, as defined in section 212(a)(6)(C)(ii). If an individual believes he or she may have made a false claim to U.S. citizenship or is charged with inadmissibility for such a claim, he or she should consult with an experienced immigration attorney immediately for guidance. An experienced immigration attorney may also be able to evaluate whether an alien who has been found inadmissible under section 212(a)(6)(C)(ii) would be able to procure a temporary nonimmigrant waiver.