This week’s FYI Friday concerns USCIS’ December 14, 2016 Policy Manual update regarding the false claim to U.S. citizenship ground of inadmissibility under INA §212(a)(6)(C)(ii). The updated section of the Policy Manual can be found here: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartK.html. The update has a few components:
- Describes the difference between the false claim to U.S. citizenship ground of inadmissibility and the fraud and willful misrepresentation ground of inadmissibility.
- Explains what constitutes a false claim to U.S. citizenship, including the type of evidence needed to support a finding of a false claim and the burden of proof.
- Explains how inadmissibility determinations are made for false claims to U.S. citizenship, including consideration of an affirmative defense for lack of capacity.
- Describes how a false claim to U.S. citizenship can affect admissibility and exceptions and waivers that may apply.
Below, please find additional research on the topic of false claims to U.S. citizenship. A big thanks to our January legal intern, Ashley Poon, for compiling this research!
Inadmissibility based on a false claim to U.S. citizenship has four elements, all of which must be proven:
- A foreign national made a representation of U.S. citizenship;
- The representation may be made to any government official or to a private person.
- The applicant’s refusal to answer a question does not necessarily make the applicant inadmissible on the grounds of a false claim to citizenship.
- The representation was false;
- The representation was made knowingly; and
- An individual who claims that he or she did not know the claim was false “has the burden of establishing this affirmative defense … for applications for admission or adjustment of status, ‘clearly and beyond doubt’.
- An individual who has made a false statement must have had the capacity to know the statement was false. Factors that may be considered in determining the applicant’s level of capacity include his or her age, level of education, background, mental capacity, level of understanding, ability to differentiate between true and false, and other relevant circumstances.
- The foreign national made the representation with the intent of achieving any purpose or benefit under the INA or any other federal or state law.
- The Immigration Judge must find direct or circumstantial evidence demonstrating that the applicant made the false claim with the subjective intent of achieving a purpose or obtaining a benefit under the Act or any other Federal or State law. The presence of a purpose or benefit must be determined objectively–that is, the United States citizenship must actually affect or matter to the purpose or benefit sought.
- The intent of achieving a purpose is separate from the purpose of achieving a benefit, though something may be both a purpose and a benefit.
- Citizenship affects or matters to the purpose, and is material, if it has a natural tendency to achieve the purpose. False claims in this context makes the applicant inadmissible. A purpose includes both positive and negative legal consequences, and includes but is not limited to avoiding removal proceedings, inspection by immigration officials, and the prohibition on unauthorized employment.
- The benefit sought must be enumerated in in the INA or any other federal or state law. If the benefit requires citizenship or has a natural tendency to affect the decision to grant or deny the benefit sought, the false claim will render the applicant inadmissible.
Exceptions and Defenses
Reasonable Belief for Children Under 16
INA §212(a)(6)(C)(iii) provides that if each of the applicant’s natural or adoptive parents is or was a citizen, and the applicant permanently resided in the United States before turning 16, and the applicant “reasonably believed at the time of making such representation that he or she was a citizen,” INA §212(a)(6)(C)(ii) does not apply.
The statute is not retroactive: only statements made on or after September 30, 1996 will make the applicant inadmissible under INA §212(a)(6)(C)(ii). Prior false claims to citizenship will be analyzed under the prior more general statutory inadmissibility based on fraud and willful misrepresentation INA §212(a)(6)(C)(i). This difference is important because applicants who are inadmissible on §212(a)(6)(C)(i) can apply for a waiver in most cases – specifically, if the inadmissibility would “result in extreme hardship to the citizen or lawfully resident spouse or parent” of the applicant.
An applicant who timely retracts a false claim of citizenship will not be inadmissible. The retraction must be timely – it must be made in the same proceeding in which the applicant made the false claim.
Minors Under 18
An individual can claim an affirmative defense if he or she, at the time of the false claim, was (1) under the age of 18 and (2) lacked the maturity and judgment to “understand and appreciate the nature and consequences” of the false claim. The individual bears the standard of proof for this defense; in the case of admission or adjustment, the standard is “clearly and beyond doubt.” The applicant’s underage status at the time of the claim alone cannot establish lack of capacity.