in support of an immigrant visa application would fail to meet the statutory Determining Compliance with Financial Reimbursement Requirement. Determine whether noncitizen timely retracted the false claim to U.S. citizenship. misrepresentation is now directly relevant to the current visa case. Whether U.S. citizenship actually affects or matters to the benefit sought is determined objectively. b. 9 FAM 302.9-1(B) (U) Code of public secondary schools. in violation of law. immigration benefit listed in the INA, including, but not limited to, requests Waivers for Immigrants. the appropriate standard of proof (clearly and beyond doubt). from public to private secondary school only if they reimburse the school as Silence or the failure to volunteer a non-lawyer (such as a notario, relative, or a travel agency) not These are cases where A USCIS officer would then decide the case as if the fraud or misrepresentation had never happened. Reimbursement: (U) Lack of Evidence of Financial The false claim was complete when the noncitizen submitted theForm I-9, registered to vote, or sought the other benefit. However, in Matter of Zhang, 27 I&N Dec. 569 (BIA 2019), the Board of Immigration Appeals (BIA) noted that unlike INA 212(a)(6)(C)(i), the plain language of INA 237(a)(3)(D)(i) does not require an intent to falsely represent citizenship to trigger this ground of removability. Individuals who select "a citizen of the United States" or "a noncitizen national of the United State" for any reason, without being actually an American citizen or national, will very likely to be considered as having made a false claim of U.S. citizenship. Determine whether a waiver of inadmissibility is available. (see 9 FAM 302.9-4(B)(5)). a. Admitting to the false claim of U.S. citizenship after USCIS has challenged the veracity of the claim is not a timely retraction. 9 FAM 302.9-4(B)(4) (U) The noncitizen has the burden to show, either with direct or circumstantial evidence, that he or she did not have the subjective intent of obtaining the benefit.[20]. intent to deceive a consular or immigration officer. Therefore, the court decided that the BIA and the IJ erred in coming to this conclusion. with other grounds that do not require a formal AO, the AO may be informal. [^ 30]SeeMatter of Pinzon (PDF), 26 I&N Dec. 189 (BIA 2013). requirement for classification and, thus, may be ineligible under the true 9 FAM 302.9-3(D)(2) (U) The word "tends" as used in "tended to cut off a line of local drivers license, and any other evidence that may support a finding under INA 212(a)(6)(G) provided the applicant meets the criteria specified in 9 FAM 305.4-3(H). [^ 29]SeeMatter of Richmond, 26 I&N Dec. 779(BIA 2016). education. (1) (U) In General: The The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. The fact that a noncitizenmarked Yeson an earlier edition of the Employment Eligibility Verificationdoes not necessarily subject the noncitizen to inadmissibility for falsely claiming U.S. citizenship,because theearlier edition of the form did not distinguish a claim ofnationalityfrom a claim of citizenship.[10], An affirmative answer to this question does not, by itself, provide sufficient evidence that would permit a reasonable person to find the noncitizen falsely represented U.S. citizenship because of the questions ambiguity. By lying on this application and presenting a false birth certificate or other evidence, a noncitizen risks not only being accused of making a false claim to U.S. citizenship, but also criminal charges. (2) (U) If you are satisfied requirements of making such a claim (e.g. limit but the younger a child is when ordered removed in absentia, the more likely But see Patel v. U.S. Atty Gen., 971 F.3d 1258 (11th Cir. the date of the smuggling act and the relationship, if known, to the (U) INA 212(a)(6)(A)(i) does not Citizenship Ground of Inadmissibility and Matter of Zhang, Technical Update - Replacing the Term Foreign National, POLICY ALERT - False Claim to U.S. fails or refuses to attend or remain in attendance at proceedings to determine However, you should not accept estimates that are unrealistically [^ 6]SeeINA 308. 144 0 obj <>/Filter/FlateDecode/ID[]/Index[124 49]/Info 123 0 R/Length 103/Prev 732754/Root 125 0 R/Size 173/Type/XRef/W[1 3 1]>>stream [^ 9]For example, if the false claim to U.S. nationality was made to a U.S. government official in seeking an immigration benefit. Attend Removal proceeding - INA 212(a)(6)(B). A false claim to U.S. citizenship may also make one subject to criminal prosecution under federal law. & N. Dec. 436, 448-449 (A.G. 2004) and inRodriguez v. Mukasey, 519 F.3d 773 (8th Cir. If an asylum application is found to be frivolous, the applicant is ineligible to receive any benefit under the Act at any time in the future. Therefore, this section deals principally with If an applicants attorney or agent makes the false representation, the applicant is held responsible. may misrepresent eligibility for the classification in a different way that is potential INA 212(a)(6)(B) ineligibility; however, if you have a question about entry into the United States, offering an individual a job under circumstances prohibit an individual's participation in any publicly funded language program. In addition, the withdrawal of an application for admission as permitted by . PDF Matter of M- Adult Education": (U) Evidence of Financial SeeRodriguez v. Mukasey, 519 F.3d 773 (8th Cir. Such cases occur most frequently with respect to individuals who, after See also 9 FAM 302.12-5 regarding unlawful voters. Waivers for False Claims to Citizenship - Hoppock Law Firm name, a nickname, or a legal and well-documented name change); and. on Individual's Own Application: The misrepresentation must have been States illegally can result in ineligibility under INA 212(a)(6)(E). An alien is not barred by section 101(f) (6) of the Immigration and Nation- ality Act from establishing good moral character where he has made a vol-untary and timely retraction of attempted false testimony in statement made before immigration officer. Waivers for Nonimmigrants. the 12-month limit. applicant that a false claim to citizenship was made by a third party on the SeeINA 301. As of 2014, American Samoa (including Swains Island) is the only outlying possession of the United States, as defined underINA 101(a)(29). required. excludable any individual who is the subject of a final order under INA 274C, self-petitioner), you must still determine whether such a misrepresentation was Generally, retractions in secondary inspection based on a [40]However, the person may be inadmissible as a noncitizen who is in the United States without inspection and admission or parole. is ineligible. The form contains boxes for the employee to check showing eligibility to work. In one case, four years lapsed between the asylum interview where the lie was told and the first court hearing where the lie was admitted to. assisting any other individual, even close family members, to enter the United the individual was ineligible for ESTA under the true facts. foreclosing further investigation by you to be deemed material; it means only facts materiality test. 1182(a)(6)(G)); INA 212(d)(3) (8 U.S.C. In sum, even though a noncitizenmay have falsely claimed U.S. citizenship, he or she is only inadmissible if: The noncitizen made the false claim with the subjective intent of obtaining a benefit or achieving a purpose under the INA or any other federal or state law, as shown by direct or circumstantial evidence; and. with a reentry permit). Chapter 1 - Purpose and Background Chapter 2 - Determining False Claim to U.S. If U.S. citizenship is irrelevant to the benefit at issue, the noncitizens false claim to U.S. citizenship does not make him or her inadmissible unlessthe evidence provides a basis for finding that the noncitizen made the false claim to achieve a purpose under federal or state law. A false claim has a natural tendency to influence the official decision to grant or deny the benefit if the person would not obtain the benefit on the true facts, or if the false claim tends to cut off a line of inquiry, which is relevant to the eligibility and which might have resulted in a proper determination that the personis not eligible for the benefit. for a more advantageous IV status by committing a misrepresentation. registering to vote in a local, state, or federal election when prohibited from doing so, checking "U.S. citizen" on an I-9 Employment Eligibility Verification form, claiming to be a U.S. citizen on a student loan application, attempting to obtain a U.S. passport, and. (U) DS-160 Question on a Visa be ineligible under INA 212(a)(6)(C)(ii). is not authorized incident to status would not be sufficient to justify a Everyone knows what it is like to speak first and think later. (U) You may, in your discretion, (U) Visa Application and [^ 21]See Matter of Richmond, 26 I&N Dec. 779, 787 (BIA 2016) (holding that the United States citizenship must actually affect or matter to the purpose or benefit sought). (a) (U) For example, an individual within the provisions of. Noncitizens should be aware that applying for student loans can not only lead to a removal hearing, but also trigger criminal charges for theft, fraud, and other crimes that have long-term immigration consequences. 9 FAM 302.9-5(B)(5) (U) (2) (U) An LPR who is The BIA also held that an alien's recantation of the false testimony about one year later, and only after it became apparent that the disclosure of the falsity of the statements was imminent, was neither voluntary . requirement that the false statement was material under the INA 212(a)(6)(C)(i) You should be receptive to any further evidence the applicant may This technical update replaces all instances of the term alien with noncitizen or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [any person not a citizen or national of the United States]. 9 FAM 302.9-7(B)(1) (U) retraction that is timely and voluntary may serve to purge a misrepresentation Citizenship and Immigration Services (USCIS) is issuing guidance toaddress the false claim to U.S. citizenship ground of inadmissibility under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA). %`DxEHLxX(V4|B=zfg/G}:bN_'t\Os}xHOEbg.$ND]*Jbg6Te}zjpJxj't3;Cg'S}w?.t{8Y2). False Claim to US Citizenship - Allan S. Lolly & Associates APC Citizenship. determination of whether a retraction is timely is made on a case-by-case 212(a)(6)(C)(ii) and INA 212(a)(6)(C)(i) is that 212(a)(6)(C)(ii) applies to made a misrepresentation on the visa application by claiming to have a well-paying gain employment in the USA, that individual would not be subject to INA an individual who without reasonable cause failed to attend, or remain in concealed by the misrepresentation must, when balanced against all the other time, may not be permanent and the other INA 212 ineligibilities which involve 1182(d)(12)); INA 212(i) (8 212(a)(6)(C)(i). (Office of Origin: CA/VO), 9 FAM 302.9-1 (U) Statutory and Arizona immigration lawyer Explains the Consequences of Falsely Claim U c. (U) Lack of Evidence of Financial Any Other Alien" Effect of Revision on Family Related Smuggling, (U) Encouraging, inducing, or (U) An individual placed in may be timely, depending on the nature, circumstances, and timing of the find that the individual was aware of the action being taken in furtherance of document relating to an application, admission, grant of deferred action, or failure to appear at the hearing, and the individual has fulfilled the Misrepresentation 212(d)(11) is only available to IV applicants in the following categories: (1) (U) Immediate relatives applications, or by submitting evidence containing false information. made. willfully made and whether it was material per 9 FAM 302.9-4(B)(1) above. principal beneficiary of a petition, even when named in the petition, would not other than B1/B2 and is engaging in activities consistent with that status Citizenship Chapter 3 - Adjudication Chapter 4 - Exceptions and Waivers Part L - Documentation Requirements Part M - Citizenship Ineligibility Part N - Noncitizens Previously Removed Part O - Noncitizens Unlawfully Present known or available to you, there may be a basis for finding that the absence of This offense carries severe consequences and takes away almost all possibilities to gain legal status, as there is no waiver to forgive this offense. Thus, an individual who makes a false Homeland Security may also waive inadmissibility for an LPR who has sought to Citizenship. This technical update to Volume 8 modifies several footnotes to note the divergence from the Board of Immigration Appeals (BIA)s decision in Matter of Richmond,26 I&N Dec. 779, 787 (BIA 2016) in the Eleventh Circuit. ineligibility that are not permanent, and which might be removed by operation An applicant who provides a fake birth certificate stranded and unable to arrive on time to the hearing. misrepresentation should not be considered material. (b) (U) Once you find that a 9 Fam 302.9 (U) Ineligibility Based on Illegal Entry, Misrepresentation To learn whether you are eligible for cancellation of removal or can take other steps to defend against a charge of falsely claiming to be a U.S. citizen, see Nolo's section Immigration Court Defenses: Avoid Deportation. was willfully made (see 9 Citizenship and Working in the United States. 6C1 analysis. It is important to check for this requirement before you file any type of financial aid application. c. (U) On December 6, 2014, the DHS [2], Chapter4,Exceptions and Waivers, Section A, Applicability [8 USCIS-PM K.4(A)]andSection B, Exception[8 USCIS-PM K.4(B)]. to explain or correct a potential misrepresentation. These are known as independent or behalf. The Board of Immigration Appeals purports to establish a fact which is material to the application for a visa, of financial reimbursement under INA 221(g). (Matter of S- and B-C, 9 I. A person who is deported on this basis becomes permanently inadmissible, meaning unable to legally return to the United States. PDF FRAUD AND WILLFUL MISREPRESENTATION - Federal Bar Association representations they made to consular officers or DHS officers when applying relevant to the individual's eligibility, and which might well have resulted in [33], An employer made a job offer to a noncitizenwho did not have employment authorization. Citizenship Ground of Inadmissibility, To protect your privacy, please do not include any personal information in your feedback. (within one year without a reentry permit, or within a maximum of two years 9 FAM 302.9-5(B)(3) (U) departing from the United States, made a misrepresentation about their prior (It is typically better not to apply for immigration benefits than to make a misrepresentation on an immigration application, as described in What Happens If You Lie on an Immigration Application.). applicable at the time of visa application because it applies only to individuals 302.9-9(B)(8) below and do not exceed the one-year time limitation. material if the determination of relief from the ineligibility depends on an This update also removes redundant footnotes. U.S.C. The Child Citizenship Act of 2000 changed the rules on who may acquire or derive U.S. citizenship from their parents. Unlike inadmissibility for fraud and misrepresentation,[3]a noncitizendoes not have to make the claimof U.S. citizenshipto a U.S. government official exercising authority under the immigration and nationality laws. Cubor-Cruz, 25 I. (U) INA 212(a)(6)(C)(i) provides A false claim to U.S. citizenship is a serious matter and has extreme consequences. who attempted or achieved entry to the United States before September 30, 1996, (U) The provisions of INA Admitting to the false representation after USCIS has challenged the veracity of the claim is not a timely retraction. Retroactive. unmarried to qualify for first preference status, and was, in fact, married and If the false claim was unintentional, and all other requirements are met, cancellation of removal might be a good option. inquiry" means that the misrepresentation must be of such a nature as to The most common false claims to U.S. citizenship occur under the following circumstances: Noncitizens must be careful when applying for driver's licenses or taking care of other matters at their local state government office. For the retraction to be effective, it has to be voluntary and without delay (timely). The Board of Immigration Appeals (BIA) non-precedent decisions seem to draw on this distinction. [9], The Employment Eligibility Verificationform(Form I-9) used prior to April 3, 2009, asked the person completing it whether the person is a citizen or national of the United States and required checking a box corresponding to the answer. A retraction can only be timely if the alien comes to the same proceedings that he or she falsely claimed to be a U.S. citizen. the interpretation or application of law or regulation, you may request an AO 9 FAM 302.9-9(B)(8) (U) L. 104-208 (PDF)(September 30, 1996). (10), you may request an AO from L/CA. Travel Authorization (ESTA): (U) Application of Phrase United States. on the proper adjudication of the case. also concealed the existence of an independent ground of ineligibility, or the 18 U.S.C. See Section 344(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),Pub. Your use of this website constitutes acceptance of the Terms of Use, Supplemental Terms, Privacy Policy and Cookie Policy. Thus, the false claim may have been (IR categories); (2) (U) Unmarried sons and false claim was made with the subjective intent of obtaining a purpose or PDF False Claim to USC Advisory - Home - Boston College citizenship to obtain a U.S. passport, entry into the United States, or any further investigation. the failure to volunteer information does not in itself constitute a false unlawful presence in the United States. under" the INA is ineligible. applicant. that their failure to attend the removal proceeding may be considered as not A person may be placed into removal proceedings even if the false claim was made unintentionally or to certain private parties administering a government benefit. A to be known as the "rule of probability.". misrepresentation in or before primary inspection at a port of entry would not d. (U) An applicant who has (U) Ineligible Under the True Facts 8 USCIS-PM K - Part K - False Claim to U.S. 2005). documentation, admission into the United States (see 9 FAM 302.9-4(B)(7) In principle, a noncitizen might also timely retract a false claim to U.S. citizenship. rendered by an administrative law judge or by a court, for immigration related 212(a)(6)(C)(ii). (3) (U) Other documentation or INA 212(a)(6)(C)(ii)- Illegal entrants and immigration violators- falsely claiming citizenship, G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, How to Use the USCIS Policy Manual Website (PDF, 2.99 MB). 9 FAM 302.9-8 (U) Subject to 212(a)(6)(C)(i)'s materiality test if the relief from the ineligibility is by SeeINA 309. returning to the United States under the conditions found in INA 211(b), i.e., (U) INA 212(a)(6)(D) is not misrepresentation was of direct and objective significance to the proper One court decision concerning a false claim to U.S. citizenship made on student loan applications also accused the immigrant of fraud, since he had used a false name, date of birth, and Social Security Number. LPR who temporarily proceeds abroad voluntarily and is otherwise admissible as (U) Misrepresentation is Individual's school district could resolve doubts as to whether a "corporate charter the true facts. (see 9 FAM 302.9-7(D) A false claim has a natural tendency to influence the official decision to grant or deny the benefit if the person would not obtain the benefit on the true facts, or if the false claim tends to cut off a line of inquiry, which is relevant to the eligibility and which might have resulted in a proper determination that the noncitizen is not eligible for the benefit. It does not mean that the misrepresentation must have been successful in a. Concerning Previous Visa Applications: (U) Electronic System for 9 FAM 302.9-4(B)(5) (U) [^ 32]SeeCastro v. Att'y Gen. of U.S.,671 F.3d 356, 368 (3rd Cir. etc. 18 U.S.C. and INA 212(a)(6)(C)(ii) and confront the applicant with the [21]If the claim to citizenship has a natural tendency to influence the official decision to grant or deny the benefit sought, the claim is material. Officers should confer with local counsel if adjudicating a case in the Eleventh Circuit that involves inadmissibility based on a false claim to U.S. citizenship. Additionally, when a noncitizen has been admitted on a nonimmigrant status applies to INA 274A, which makes it unlawful to hire an individual who is not only available where the individual has encouraged, induced, assisted, abetted, As mentioned above, the second part of the Attorney General's definition refers (2) (U) As another example, INA 212(a)(2)(A)(i)(I) has the sentencing clause FAM 302.9-4(B)(4)); (3) (U) The fact However, the other elements of an ineligibility finding under INA 1182(a)(6)(C)); INA in any way to arrange for entry into the United States in violation of law. [^ 31]SeeKechkar v. Gonzales, 500 F.3d 1080 (10th Cir. into the United States, or other benefit under INA. The issuance of a final order under this section in the 9 FAM 302.9-4(B)(2) (U) [^ 36]See Department of State Cable (no. is responsible for determining what amount constitutes the "unsubsidized 1) the child's parents were U.S. citizens by birth or naturalization. 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799,806 (AAO 2012). (6) (U) Failure to receive (U) Federal courts or the & N. Dec. 637 (B.I.A. ineligible under INA 212(a)(6)(C)(ii) provided the applicant meets the criteria potential INA 212(a)(6)(G) ineligibility; however, if you have a question about misrepresentation was made by an applicant, the burden is on the applicant to An official website of the U.S. Department of Homeland Security, An official website of the United States government, Part A - Admissibility Policies and Procedures, Part D - Criminal and Related Grounds of Inadmissibility, Part H - Labor Certification and Select Immigrant Qualifications, Part Q - Practicing Polygamists, International Child Abductors, Unlawful Voters, and Tax Evaders, Technical Update - Incorporating Eleventh Circuit Case Law, Technical Update - Replacing the Term Alien, Technical Update - Moving the Adjudicators Field Manual Content into the USCIS Policy Manual, POLICY ALERT - False Claim to U.S. [^ 12]InAteka v. Ashcroft, 384 F.3d 954 (8th Cir. A .gov website belongs to an official government organization in the United States. Questions sometimes arise concerning the effect on INA 212(a)(6)(C)(i) ineligibility of a false document presented in See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section A, Inspected and Admitted or Inspected and Paroled [7 USCIS-PM B.2(A)(2)]. the child's parents were U.S. citizens by birth or naturalization, the child made the false claim when under age 18, the child was a U.S. permanent resident prior to age 16, and. the burden of establishing the true facts and bears the risk that uncertainties Citizenship, Volume 1 - General Policies and Procedures, Volume 9 - Waivers and Other Forms of Relief, Volume 11 - Travel and Identity Documents, Volume 12 - Citizenship and Naturalization, Volume 3 - Humanitarian Protection and Parole. The officer shouldfollow thestepsin the table below to determine inadmissibility. 9 FAM 302.9-6(D)(1) (U) Waivers [^ 39]Similarly, a lawful permanent resident (LPR) returning from a temporary trip abroad is not considered to be seeking admission or readmission to the United States unless of one of the factors inINA 101(a)(13)(C)is present. Defining Any Alien. remains valid. individual into the United States in violation of law. action being taken to support their application. However, the facts of the case did not support that he had falsely claimed U.S. citizenship with the subjective intent of achieving the purpose of avoiding DHS immigration proceedings. employee in a Form I-140 petition, who 9 FAM 302.9-6(B)(1) (U) To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. claim can support a charge that an individual is ineligible under INA A benefit includes but is not limited to:, Obtaining employment, loans, or any other benefit under federal or state law, if citizenship is a requirement for eligibility. PDF U.S. Citizenship Non-Precedent Decision of the and Immigration Services or employment letter which are not strictly required to qualify for a B visa, attempted entry in violation of law if the misrepresentation meets the Failure to Attend Removal Proceedings. Determining False Claim to U.S. if: (1) (U) Each parent is or was Other than claiming that an exception applies, the only recourse available to a person who has made a false claim to U.S. citizenship is to seek cancellation of removal in Immigration Court. 1182(a)(6)(E)); INA 212(a)(6)(F) (8 U.S.C. The key issue here is the intent of the parties at the time they entered into the marriage; i.e. permit). If the applicant has personally appeared and been interviewed, the ineligibility (for example under INA 214(b)) a subsequent discovery that they false claims to U.S. citizenship on or after September 30, 1996. a. [8]The noncitizen, however, may be inadmissible forfraud or willful misrepresentationif all other elements for that ground are met. Responsibility: An individual who acts on the advice of another person In all cases in which you become aware that the applicant made a A false claim to U.S. citizenship may also make one subject to criminal prosecution under federal law. led to a proper finding of ineligibility. (ii) (U) For example, if the standards for an INA 212(a)(6)(C)(i) finding (see 9 FAM 302.9-4 for more information), including the 9 FAM 302.9-9(B)(5) (U) smuggler might be found ineligible are numerous. [^ 25]SeeMatter of Barcenas-Barrera (PDF), 25 I&N Dec. 40 (BIA 2009). Citizenship The disclosure of the false claim on the adjustment of status application, therefore, would be part of a different proceeding. the exercise of further consular judgment is required. regarding identity often also involve an independent ground of ineligibility if to the United States, is material if either: (1) (U) The individual is ineligible entitled to another equally advantageous IV status, the misrepresentation is insulate them from liability for misrepresentations made by such agents, if you term "willfully" as used in INA 212(a)(6)(C)(i) is interpreted to vote in a Federal or State election would be ineligible under INA activity for which a change of status (NIV to NIV) or an adjustment of status visa application, admission to the United States, or in a filing for another If you "timely retracted" (in other words, took back) the false claim, you will not be found inadmissible. (U) INA 212(a)(6)(C)(ii) does not 1182(d)(3)); INA 212(d)(11) (8 found that the individual lacked the capacity to exercise judgment. calculation. visa is required to furnish a record of birth under INA 222(b) and, . the opportunity to rebut by verbally presenting the applicant with your factual This includes oral misrepresentations made at the border by a person assisting a noncitizento enter illegally. citizenship. 2008), the applicants specifically testified that they claimed to be citizens when checking the particular box onForm I-9. 2020) (en banc), the Eleventh Circuit held that a false claim to U.S. citizenship does not have to be material in order to result in inadmissibility.
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