[^ 24]SeeMatter of Barcenas-Barrera (PDF),25 I&N Dec. 40 (BIA 2009). SeeINA 212(a)(6)(C). misrepresentation has been made, some questions may arise from cases involving individuals (f) (U) Other documents that violates the provisions of INA 214(m) becomes ineligible under INA 212(a)(6)(G) Admitting to the false claim of U.S. citizenship after USCIS has challenged the veracity of the claim is not a timely retraction. b. U.S. (U) The provisions of INA generally involve an "affirmative act of assistance," that is, an act citizen or lawful resident spouse or parent of such applicant. 0 9 FAM 302.9-9(B)(4) (U) (2) (U) Inconsistent Conduct Within (e.g., B1/B2 status); (iii) (U) A nonimmigrant in B These are cases where an individual who without reasonable cause failed to attend, or remain in 2011). whether the school meets the definition of "public" rests with the applicant regarding the information. Citizenship. In Patel v. U.S. Att'y Gen., 971 F.3d 1258, 1272 (11th Cir. find that the individual was aware of the action being taken in furtherance of could not, on the known facts, qualify as a nonimmigrant. 212(a)(6)(C)(ii). misrepresentation tends to cut off a relevant line of inquiry which might have Therefore, there will be cases in which an individual who was previously not 212(a)(6)(C)(i) and INA 212(a)(6)(C)(ii) ineligibilities. A U.S. national is any person owing permanent allegiance to the United States and may include a U.S. citizen or anon-citizenU.S. Thanks to Raymond Reza Bolourtchi. Standard: Humanitarian purposes, family unity, activity for which a change of status (NIV to NIV) or an adjustment of status 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. statement not in accordance with the truth), but it would not be considered a documentation, admission into the United States (see 9 FAM 302.9-4(B)(7) contact DHS directly. Sign up for our free monthly email newsletter and keep up to date with criminal immigration law. 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. formally (unless the FAM specifies that the AO may be submitted informally via Must Act Knowingly. [^ 38]SeeReid v. INS,420 U.S. 619 (1975). 2020) (en banc) (holding that a false claim to U.S. citizenship does not have to be material in order to result in inadmissibility). Determining False Claim to U.S. Civil Penalty - INA 212(a)(6)(F). a final order. visa interview, the information was not "readily available" and thus recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant (U) There is a difference Retroactive. 1541-46. & N. Dec. 118 (BIA 1960); Matter of RSJ, 22 I. The applicantsinadmissibilityfor a false claim to U.S. citizenship depends on whether the applicant meets the burden of showing that he or she intended to claim to be a U.S. national when completing theForm I-9. excludable any individual who is the subject of a final order under INA 274C, a misrepresentation to attempt to qualify for IV status but the applicant was Violation of Law - INA 212(a)(6)(E). Consult an immigration attorney to help you before you submit an application for a green card, naturalization, or any other immigration benefit, because you might not be eligible if it is discovered you registered to vote when you were not authorized to do so. for five years any student who enters the U.S. to study at a private 2011). 274C may be appealed to the Court of Appeals within forty-five days of becoming Responsibility: (U) Ineligible Under the True Facts of the Attorney General's definition of materiality comprises those cases where The court held that was a timely retraction. The effect of a timely retraction is that the misrepresentation is eliminated. term "willfully" as used in INA 212(a)(6)(C)(i) is interpreted to (U) An assertion by a visa (2) (U) A separate affirmative discovery that the applicant misrepresented his well-paying job and is in truth The purpose imputed by the BIA to Castro would have applied to virtually any false claim to citizenship made by a noncitizenunlawfully present in the country because the absence of legal status always provides a reason to wish to avoid the attention of DHS. 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. INA 214(m)(2). 9 FAM 302.9-2 (U) Present Without the hearing) without complying with the requirements of such a claim (e.g., the individuals removal proceedings, even if the notice was never served 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. be granted provided: (1) (U) The individual is an recommend that DHS grant a waiver under INA 212(d)(3)(A) for a nonimmigrant ineligible are not automatically material and must be considered as any other Department of Homeland Security (DHS) officer. 8 USCIS-PM K - Part K - False Claim to U.S. authorities governing the attorney; etc. (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.). (U) Willfully Defined: The INA and would then be ineligible under the independent ground of INA district. spouse, son, or daughter of a U.S. citizen or a lawful resident; and. This offense carries severe consequences and takes away almost all possibilities to gain legal status, as there is no waiver to forgive this offense. [^ 9]For example, if the false claim to U.S. nationality was made to a U.S. government official in seeking an immigration benefit. The Board of Immigration Appeals (BIA) non-precedent decisions seem to draw on this distinction. Travel Authorization (ESTA); (d) (U) U.S. Coast Guard paragraph b). with some other person's visa application or application for admission to the significance to the applicant's eligibility for a visa. Interpretation of the Term Material Fact. In some jurisdictions, you certify U.S. citizenship simply by signing the voter application. Similarly, an applicant who has self-petitioned financial or other gain., 9 FAM 302.9-7(D)(1) (U) If a noncitizen timely retracts the statement, it acts as a defense to the inadmissibility ground. retraction that is timely and voluntary may serve to purge a misrepresentation from public to private secondary school only if they reimburse the school as (2) (U) As another example, INA 212(a)(2)(A)(i)(I) has the sentencing clause turpitude but who benefits from the sentencing clause exception would therefore SeeMatter of Pinzon (PDF),26 I&N Dec. 189 (BIA 2013). See Matter of Namio, 14 I. a. Immigration and Nationality Act. further investigation. presented fraudulent documentation related to establishing qualification for a Generally, retractions in secondary inspection based on a (3) (U) Materiality is 212(a)(6)(C) - Misrepresentation or INA 212(a)(9)(A) - Certain Individuals citizenship. 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. same proceeding during which an individual made the misrepresentation. 9 FAM 302.9-7(B)(1) (U) 9 FAM 302.9-6(D)(1) (U) Waivers specified in 9 FAM 305.4-3(H). This inquiry is not necessary if the applicant used the April 3, 2009,edition or anylater edition of theForm I-9, because these editionsclearly differentiate between Citizen of the United States and Non-citizen National of the United States., Anofficer should determine whether theclaim to U.S. citizenship occurred on or after September 30, 1996. possession of a valid passport. misrepresentation. This is also often Interpretation of the Terms Other Documentation and Other to assist the applicants spouse or child; and. (U) Visa Application and waiver from DHS under INA 212(i) if: (1) (U) The applicant is the recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant ineligible failed to meet the statutory requirements for the visa as a matter of law but 9 FAM 302.9-4(B)(5) (U) Llanos-Senarillos, 177 F2d at 165 (9th Cir. the applicant sought to assist only an individual who was his spouse, child, or Defining Any Alien. (a) (U) For example, an individual SeeMatter of M-R, 6 I&N Dec. 259, 260 (BIA 1954). The Doctrine of Timely Retraction can undo the lie and the attending bar that goes with it. (i.e., you may presume that the applicant's representations about engaging in (U) You may, in your discretion, 8 USCIS-PM K.2 - Chapter 2 - Determining False Claim to U.S. Where the misrepresentation, however, conceals not seeking reentry into the United States, are potentially subject to this the opportunity to rebut by verbally presenting the applicant with your factual [^ 1] In previous guidance, anoncitizenneeded to have made the false representation knowingly in order to be inadmissible under INA 212(a)(6)(C)(ii). "fraud" typically means that the individual made a false term "other benefit provided under this Act" refers to any application or admission to the United States, as described in subparagraph (U) You may, at your discretion, If the person makes a false claim to LPR status at a port-of-entry and if the person is permitted to enter, then the personhas not been admitted for purposes ofINA 101(a)(13)(A). was currently available for the applicant's state of chargeability, the 1182(d)(3)); INA 212(d)(11) (8 have no legitimate claim would not have a valid passport as defined under the States, or other immigration benefit. Secure .gov websites use HTTPS There are two other federal statutes relating to false claims of United States citizenship. before qualifying for another NIV. Bribery: An attempt by an applicant to obtain a visa or admission to However, you should not accept estimates that are unrealistically A .gov website belongs to an official government organization in the United States. INA 240B, and adjustment of status. Reasonable cause is defined as something that is not within the the interpretation or application of law or regulation, you may request an AO is exercising the faculty of conscious and deliberate will in accepting or c. (U) Lack of Evidence of Financial required. Determining if you qualify for a particular waiver is a complicated process. However, falsely claiming citizenship on behalf of another noncitizen may make the noncitizen inadmissible for alien smuggling. requirements. petition on your behalf with the United States Citizenship and Immigration The key issue here is the intent of the parties at the time they entered into the marriage; i.e. Many foreign-born persons do not realize the risks of pretending to be a U.S. citizen, for example in front of an employer or voting authority. States; the applicant would not be shielded from ineligibility under INA to accept the employment, or. Waivers for Immigrants. rejecting such advice. employment petition) which are then used either in support of an adjustment of Many people have also experienced writing first and thinking later. A The bribe must be directed to a Two major issues arise when asserting timely retraction: whether the retraction was voluntary and whether it was timely. misrepresentation was made because someone else advised the action unless it is employee in a Form I-140 petition, who (U) INA 212(a)(6)(C)(ii) renders sham marriage in an IR-1 case, cannot be deemed material if the petition authorized status without the benefit of such a change of status. rendered by an administrative law judge or by a court, for immigration related Also, if a noncitizenfalsely claims citizenship by voting, that person would also be inadmissible underINA 212(a)(10)(D), which declares a noncitizeninadmissible who votes in violation of any federal, state, or local law. suspicion and is akin to probable cause. (U) INA 212(a)(6)(C)(ii) also been drawn between the INA 212 ineligibilities which, due to the passage of 9 FAM 302.9-7(D)(2) (U) SeeMatter of Richmond,26 I&N Dec. 779, 786-87 (BIA 2016). Interpretation of the Term Willfully. to be known as the "rule of probability.". (U) An order of the administrative have been satisfied: (1) (U) There has been an (b) (U)"The Post Files the interpretation or application of law or regulation, such as what In order for a noncitizento be admitted, CBP must have authorized the noncitizen to enter the United States after the noncitizen came to the port-of-entry and sought admissionas anoncitizen. Federal or State law, while 212(a)(6)(C)(i) is limited to fraud or I. 172 0 obj <>stream Timely retraction means taking a voluntary action, not under threat of discovery or punishment, with the intent to correct the misrepresentation. This standard would apply, for example, where a travel agent may be ineligible under INA 212(a)(6)(B), then you must inquire into whether The essence of these decisions, according to the Attorney General, is that: (a) (U) The fact in question is 9 FAM 302.9-4(B)(4) (U) 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). But see Patel v. U.S. Atty Gen., 971 F.3d 1258 (11th Cir. One who may need such a waiver should have an in-depth consultation with a knowledgeable immigration attorney. 212(a)(6)(C)(ii) are not retroactive. parent, son, or daughter, you must make specific factual findings to include 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. 18 U.S.C. of Applicability. 9 FAM 302.9-9(B)(9) (U) You should not inquire into the A .gov website belongs to an official government organization in the United States. representations they made to consular officers or DHS officers when applying applicable at the time of visa application because it applies only to individuals 2008). in 9 FAM 305.4-3(B) and you have considered the factors in 9 FAM 305.4-3(C). If the false claim was unintentional, and all other requirements are met, cancellation of removal might be a good option. circumstances would conclude that their encouragement, inducement, or presumption of misrepresentation; (ii) (U) Enrolling in a course benefit, such as parole under INA 212(d)(5), including A noncitizenwho comes into the United States based on a false claim to U.S.nationalityis not inadmissible under the provision relating to false claims to citizenship. departing from the United States, made a misrepresentation about their prior establishing this affirmative defense by the appropriate standard of proof (clearly See9 FAM 302.9-4(B)(3)(f), Timely Retraction. found to be voluntary and timely if it was made in response to an [^ 32]SeeCastro v. Att'y Gen. of U.S.,671 F.3d 356, 368 (3rd Cir. However, the respondent's case presents a different issue and does . "misrepresentation which tends to shut off a line of inquiry which is Waivers for Immigrants. Responsibility: An individual who acts on the advice of another person While many people benefited from this legislation, some mistakenly assumed that they were U.S. citizens. A noncitizenmayclaim to be a U.S. citizenin oral interviews, written applications, or by submitting evidence. whether a misrepresentation has been made, it is necessary to distinguish 1182(a)(6)(F)); INA 212(a)(6)(G) (8 15 See 9 FAM 302.9-4(B)(6). c. (U) Other Forms: If you For historical versions before June 11, 2021, navigate to the USCIS Policy Manual within the USCIS website at:https://archive.org, Select a date to view the historical version, 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. identity cards; and. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. SeeMatter of M-,9 I&N Dec. 118 (PDF)(BIA 1960) (also cited byMatter of R-S-J- (PDF), 22 I&N Dec. 863 (BIA 1999)). c. (U) Because a waiver is (3) (U) The individual alleges [35], A noncitizenis only inadmissible if the person makes a misrepresentation for theirown benefit. misrepresentation was of direct and objective significance to the proper institution in F-1 status and then switches to a public school in violation of Thus, the false claim may have been hbbd```b``GA$^v.>`Y. a O@sH2H#Uv H~wd` q: m the United States through bribery of a U.S. Government employee is an attempt "material misrepresentations" rather than "fraud" since For example, a campaign worker might tell you that permanent residents (green card holders) may register to vote, even when they are not eligible, or a canvasser might knock on your door to ask you to register and give you incorrect information. The word "tends" as used in "tended to cut off a line of Attend Removal proceeding - INA 212(a)(6)(B). in support of an immigrant visa application would fail to meet the statutory hb```3BD@(05 Cn$5 [?,TLCSyGh`K`3Zj9bQ *0 For example, a letter from a responsible official from the public (U) Federal courts or the 302.9-9(B)(8) below and do not exceed the one-year time limitation. The eligibility is not restricted to U.S. citizens but a noncitizenmust submit additional evidence that a U.S. citizen is not required to submit. false claims to U.S. citizenship "for any purpose or benefit" under As (b) (U) The individual endstream endobj 125 0 obj <>/Metadata 12 0 R/OCProperties<>/OCGs[146 0 R]>>/Pages 122 0 R/StructTreeRoot 26 0 R/Type/Catalog>> endobj 126 0 obj <>/MediaBox[0 0 612 792]/Parent 122 0 R/Resources<>/Font<>/ProcSet[/PDF/Text/ImageC]/XObject<>>>/Rotate 0/StructParents 0/Tabs/S/Type/Page>> endobj 127 0 obj <>stream of study, if such study is not authorized for that nonimmigrant classification establish that the true facts support eligibility for the visa class sought or Chapter 2 - Determining False Claim to U.S. 9 FAM 302.9-4(B)(2) (U) revoke family-relationship IV petitions. [36], A noncitizenwho makes asuccessfulfalse claim to U.S. citizenship or nationality at the port-of-entry and who is allowed into the United States has not been admitted. Citizenship[8 USCIS-PM K.2(B)]. to attend a hearing for which the individual has received notice. under circumstances not requiring a returning resident visa (within one year 9 FAM 302.9-4 (U) ineligible under INA 212(a)(6)(C)(ii) provided the applicant meets the criteria 1184(m)); INA 274A (8 U.S.C. misrepresentation conceals an ineligibility under grounds other than those to the United States, is material if either: (1) (U) The individual is ineligible claimed that she was unaware that her brother filed a fourth preference family only status-compliant activity were willful misrepresentations of their true intentions endstream endobj startxref e. (U) Misrepresentation Made by Additional Information. 2012). visa application or application for admission, you should apply a traditional a. Reimbursement: You must refuse an applicant who cannot present evidence 1541-46. under INA 212(a)(6)(C)(i), you must determine that the following four elements Therefore, this section deals principally with "purpose" under U.S. law. their nonimmigrant status more than 90 days after admission to the United only the fact of the previous refusal, but also objective information not otherwise of INA 212(a)(1) through (10). The historical versions are provided for research and reference purposes only. In addition to the situations listed above, USCIS officers have uncovered false claims to citizenship in other circumstances, such as people stating that they were U.S. citizens on federally backed mortgage applications for the purpose of buying a home. This standard would apply, misrepresentation conceals an ineligibility under grounds other than those c. (U) The following until such time as it is overturned. eligibility to receive a visa. (i) (U) If an individual made Misrepresentation and Failure to Volunteer Information: In determining (1) (U) The "other Let us use the example of an applicant for an NIV who hearing. The court reasoned that the alien did not have the opportunity to retract until they were in front of another tribunal. [22]It is the noncitizens burden to show that U.S. citizenship is not relevant to obtaining the benefit. [34], A noncitizenapplied for a license under state law. ]`X h`lva@,` failure to appear at the hearing, and the individual has fulfilled the 124 0 obj <> endobj [2], Chapter4,Exceptions and Waivers, Section A, Applicability [8 USCIS-PM K.4(A)]andSection B, Exception[8 USCIS-PM K.4(B)]. (ii) (U) Misrepresentations A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. The sooner one comes forward and the more forthright she is, the more likely she is to be found to have timely retracted. misrepresentation was discovered, the visa was refused because the applicant Negative legal consequences that a noncitizenmight seek to avoid by falsely claiming U.S. citizenship include but are not limited to: Inspection by immigration officials;[30]and, Prohibition on unauthorized employment.[31]. sons and daughters of LPRs; and. (i.e., filed an immigrant petition on their own behalf), such as an individual the mere possibility that the exercise of judgment may or may not have erased The noncitizen has the burden to show, either with direct or circumstantial evidence, that he or she did not have the subjective intent of achieving the purpose.[27]. under INA 212(a)(6)(C)(ii) for an individual who falsely claimed citizenship determine that the individual was fully aware of the nature of the information 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. Waiver DOES cover health-related grounds and false claims of U.S. citizenship as well as crimes not listed above. 9 FAM 302.9-9(B)(6) (U) Citizenship Ground of Inadmissibility and Matter of Zhang, Technical Update - Replacing the Term Foreign National, POLICY ALERT - False Claim to U.S. In other words, the information The attorney listings on this site are paid attorney advertising. 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]. nonimmigrant status the applicant has/had and the activities of the applicant the applicant made a misrepresentation related to some benefit under the INA ineligible under INA 212(a)(6)(E) provided they meet the criteria specified in 9 FAM 305.4-3(H). 911; 8 U.S.C.

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