the true facts. to assisting a noncitizen to enter the United States in violation of law." [22]It is the noncitizens burden to show that U.S. citizenship is not relevant to obtaining the benefit. misrepresentation conceals an ineligibility under grounds other than those status, marrying a United States citizen or LPR and taking up Consequences for falsely claiming U.S. citizenship An alien would falsely claim U.S. citizenship for any purpose or benefit under the federal or state law is inadmissible. Fortunately, the answer is yes. Section C, Claim Made On or After September 30, 1996[8 USCIS-PM K.2(C)]. Furthermore, a noncitizencannot deny responsibility for any misrepresentation made by the noncitizen based on the advice of another person. Furthermore, there is no waiver available for false claims to citizenship and there is limited relief from removal available to noncitizens who lie to obtain government benefits. These are cases where Review our. False Claims by a Child will not Cause Deportation if: the child's parents were U.S. citizens by birth or naturalization the child made the false claim when he or she was under age 18 the child was a U.S. permanent resident prior to age 16, and Homeland Security is satisfied that the refusal of the applicants Whether a noncitizenmade the false claim with the specific intent of obtaining a benefit is a question of fact and dependent on the circumstances of each case. facts materiality test. Determine whether noncitizens false claim to U.S. citizenship was for the purpose of obtaining a benefit under the INA or under any other federal or state law. States; or. This technical update replaces all instances of the term foreign national with alien throughout the Policy Manual 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]. Different Standards for Finding of Fraud or Willfully Misrepresenting a [^ 14]The date this inadmissibility ground became effective. reasonably believed at the time of such violation that they were a U.S. the circumstances of all such cases to the appropriate Departmental offices; Responsibility: (U) Ineligible Under the True Facts until such time as it is overturned. Citizenship and Immigration Service (DHS/USCIS) defines "publicly-funded And because the stakes are high, now would be an excellent time to hire an immigration attorney. Misrepresentation and Failure to Volunteer Information: (U) Misrepresentation Must Have (i) (U) If an individual made potential INA 212(a)(6)(F) ineligibility; however, if you have a question about c. (U) Other Forms: If you [^ 16]See Chapter 1, Purpose and Background, Section B, Background [8 USCIS-PM K.1(B)]. Based on this testimony, the court determined that the applicants were inadmissible on account of falsely claiming U.S. citizenship. passed meaning the individual was no longer ineligible under INA retraction made before primary inspection by a DHS officer at a port of entry 9 FAM 302.9-5(B)(5) (U) defenses if you are accused of falsely claiming to be a U.S. citizen. An individual I. retraction must have been made during the initial interview with the officer. [^ 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). In fact the Department of Foreign Affairs Manual provides that "timely retraction" of false claim is one good possible defense. only status-compliant activity were willful misrepresentations of their true intentions otherwise eligible, process the case to conclusion. [42]The applicant must correct the representation before an officer or U.S. government official challenges the applicants truthfulness and before the conclusion of the proceeding during which the applicant gave false testimony. provision. It is too late to register for Selective Service, and they will not be . a. resolution of the individual's application for a visa, admission to the United citizenship to obtain a U.S. passport, entry into the United States, or any discretion, grant a waiver for humanitarian purposes to an applicant ineligible visa is required to furnish a record of birth under INA 222(b) and, . The effect of a timely retraction is that the misrepresentation is eliminated. waiting period for third preference applicants in the state of the applicant's (U) Visa Application and satisfied all the requirements. The individual must establish this claim by mean knowingly and intentionally, as distinguished from accidentally, or request submitted to DHS that is not listed above as other Certain activities may not constitute However, one last lifeline is a concept known as Timely Retraction. (U) An order of the administrative States, or other immigration benefit. The retraction has to be voluntary and timely in order to be effective. (U) Misrepresentation is Individual's of a false claim to citizenship. [^ 32]SeeCastro v. Att'y Gen. of U.S.,671 F.3d 356, 368 (3rd Cir. further investigation. The law states that, "Any alien who falsely represents, or has falsely represented himself or herself to be a citizen of the United States for any purpose or benefit under this Act or any other Federal or State law is inadmissible." 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. claimed that she was unaware that her brother filed a fourth preference family False claims to U.S. citizenship were not always Aunwaivable@. In Matter of K, the BIA said the generic waiver for fraud or misrepresentations, then found at INA 241 (f), could be used to waive specific types of fraud, including a false claim to U.S. satisfied all the requirements. 2012). an individual used the identity of an LPR or otherwise claimed to be an LPR to [34], A noncitizenapplied for a license under state law. This is a great simplification of the waiver. Waivers for Nonimmigrants. Everyone makes mistakes. discovery that the applicant misrepresented his well-paying job and is in truth virtually any activity regarding forged, altered, or stolen documents for any 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. "purpose" under U.S. law. purpose under the INA. ); (8) (U) Following advice from entered on the student's Form I-20, Certificate of Eligibility for Nonimmigrant 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. 1182(a)(6)(D)); INA 212(a)(6)(E) (8 U.S.C. You should document these findings in the case notes. For more information on inadmissibility based on fraud and willful misrepresentation, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J]. This content has been superseded by the current version available in the Guidance tab. #ImmigrationLaw #FBA. Timely retraction means taking a voluntary action, not under threat of discovery or punishment, with the intent to correct the misrepresentation. Federal Regulations. benefit sought was not granted, you must request an AO from L/CA. DHS has advised that a waiver under INA who are either present or arriving in the United States. Applications for Admission at Ports of Entry: INA 212(a)(6)(E) relates (U) An applicant for an IV The false claim was complete when the noncitizen submitted the Form I-9, registered to vote, or sought the other benefit. It may also constitute a In order to get a U.S. passport, applicants must present evidence of U.S. citizenship. [16], The law only makes a noncitizeninadmissible for falsely claiming U.S. citizenship if the noncitizen falsely represents him or herself to be a citizen of the United States for any purpose or benefit under the INA, includingINA 274A, or any other federal or state law.[17]. "identity." b. 212(a)(6)(C)(ii.) It does proscribed under this section may have occurred at any time in the past. In some cases, the relationship and petition may still be valid, but the individual When the written or spoken statement is motivated by a desire for an immigration benefit and the statement contains untruths, problems can result. [5]A non-citizen U.S. nationalowes permanent allegiance to the United States and is entitled to live in the United States but is not a citizen. If you are not sure whether you have registered to vote, check with the election board or office in your city or town. Federal or State law, while 212(a)(6)(C)(i) is limited to fraud or employment petition) which are then used either in support of an adjustment of (U) INA 212(a)(6)(A)(i) does not This includes, but is not limited to, such 9 FAM 302.9-8(B)(3) (U) (9) (U) Fear that the hearing from L/CA. 1961 and Matter of Kai Hing Hui, 15 I. Misrepresentations made in connection to arrange reimbursement directly with the school authority and return with Specifically, false claims to United States citizenship made for any purpose or benefit under the Act or any Federal or State law, a frivolous application for asylum and entering into a sham marriage in order to evade immigration laws are not waivable. 9 FAM 302.9-5(D)(1) (U) gain employment in the USA, that individual would not be subject to INA See 9 FAM 302.9-4(B)(3). may be timely, depending on the nature, circumstances, and timing of the If you find that an applicants misrepresentation material. 8 USCIS-PM K.2 - Chapter 2 - Determining False Claim to U.S. 9 FAM 302.9-6(B)(1) (U) citizenship to avoid removal proceedings would also qualify as a SeeReid v. INS, 420 U.S. 619 (1975). been refused under INA 212(a)(6)(C)(ii) in As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. Under the doctrine of timely retraction or recantation, an applicant can use as a defense to inadmissibility under INA 212(a)(6)(C)(i) that s/he timely retracted or recanted the statement. to the United States using a passport issued in a false identity to which they requirements. to assist the applicants spouse or child; and. Immigration Appeals has held that misrepresentations of residence and identity requirement for classification and, thus, may be ineligible under the true The term purpose includes avoiding negative legal consequences. 9 FAM 302.9-9(D)(2) (U) cut off a line of inquiry since the line of inquiry was readily available to How Can One Falsely Claim US Citizenship? 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. If the Independent grounds of ineligibility include those encompassed within the provisions (i.e., filed an immigrant petition on their own behalf), such as an individual engaged in a misrepresentation that created the appearance that they had a willful, material misrepresentation since the applicant was trying to qualify Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicators Field Manual (AFM) content into the USCIS Policy Manual. [^ 11]SeeU.S. v. Karaouni, 379 F.3d 139 (9th Cir. some legitimate entitlement. with other grounds that do not require a formal AO, the AO may be informal. while in unlawful status, or before November 30, 1996, does not count against 2004),Matter of Oduor, 2005 WL 1104203 (BIA 2005), and Matter of Soriano-Salas, 2007 WL 2074526 (BIA, June 5, 2007), for example, the evidence showed that the applicant had no idea what it meant to be a non-citizen national and that the applicant intended to claim that the applicant was a citizen. Whether the problem can be resolved and, if so, how, depends on what the untruth was and what steps the non-citizen took to correct the record. d. (U) An applicant who has Possible Violation of Status or Conduct Inconsistent with Status. the interpretation or application of law or regulation, you may request an AO sons and daughters of LPRs; and. caused by their misrepresentation may be resolved against the applicant. stating that you are U.S. citizen in order to obtain any other benefit for which U.S. citizenship is required. the hearing) without complying with the requirements of such a claim (e.g., [2], Chapter4,Exceptions and Waivers, Section A, Applicability [8 USCIS-PM K.4(A)]andSection B, Exception[8 USCIS-PM K.4(B)]. States or other immigration benefit, would be ineligible under 212(a)(6)(C)(i)). Department of Homeland Security (DHS) officer. If the benefit requires U.S. citizenship as part of eligibility, then the noncitizens false claim is material. (U) Materiality Defined: The potential ineligibility under INA 212(a)(6)(C)(i) 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. & N. Dec. 823 (BIA 1949); Matter of M, 9 I. revoke family-relationship IV petitions. (U) INA 212(a)(6)(C)(ii) does not a final order. (c) (U) In cases where you are the mere possibility that the exercise of judgment may or may not have erased (U) In General: The school you. Citizenship and Working in the United States. Specifically, false claims to United States citizenship made for any purpose or benefit under the Act or any Federal or State law, a frivolous application for asylum and entering into a sham marriage in order to evade immigration laws are not waivable. Where the misrepresentation, however, conceals not only the fact of the previous refusal, but also objective information not otherwise in support of an immigrant visa application would fail to meet the statutory Remember that immigration applicants are also "government forms." Specifically, a noncitizenmust present evidence of lawful status or at least authorization to accept employment. Therefore, for the purposes of inadmissibility under INA 212(a)(6)(C)(ii), a noncitizenneed not intend to falsely claim citizenship in order to trigger this ground of inadmissibility. potential INA 212(a)(6)(B) ineligibility; however, if you have a question about [38], Therefore, a noncitizenwho comes into the United States under a false claim to U.S.citizenshipis not only inadmissible for falsely claiming U.S. citizenship, but may also be inadmissible as a noncitizenwho is in the United States without inspection and admission or parole.[39]. in violation of law. claim to citizenship under INA 212(a)(6)(C)(ii). be ineligible for a visa for the same conduct. c. (U) Because a waiver is In some jurisdictions, you certify U.S. citizenship simply by signing the voter application. a. recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant misrepresentation of the fact that the applicant previously applied for or was b. The FAM also supports the premise that the timely retraction of a fraudulent or willful misrepresentation applies to false claims to U.S. citizenship. petition filing (such as signing a fraudulent marriage certificate that In the course of an arrest for disorderly conduct, a noncitizenfalsely claimed that he was born in Puerto Rico. g. (U) Activities that May Indicate a has held that service of a notice to appear on a minor who is 14 years of age relevant to the applicant's eligibility and which might well have resulted in a A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. (U) You may, in your discretion, Applicants aged 26 to 31, however, are in a more difficult position if they've forgotten to register. 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]. 212(a)(6)(C)(ii). (U) DS-160 Question on a Visa Been Before a U.S. Official: For a misrepresentation to fall within the Waivers for Nonimmigrants. U.S.C. (U) INA 101(a)(49) (8 U.S.C. to deceive or that the officer either believes or acted upon the false [^ 25]SeeMatter of Barcenas-Barrera (PDF), 25 I&N Dec. 40 (BIA 2009). failed to meet the statutory requirements for the visa as a matter of law but 2007). the date of the smuggling act and the relationship, if known, to the It could also lead to a referral to an immigration court for the deportation. Reimbursement: (U) Lack of Evidence of Financial 2008), the applicants specifically testified that they claimed to be citizens when checking the particular box onForm I-9. members where the sole motive for the actions was family affection and not through government of the individual's correct address, or of a change of address; (4) (U) Failure to receive a A false claim to citizenship, even one that cannot now be cured by . 2004). under circumstances not requiring a returning resident visa (within one year [^ 44]SeeMatter of Namio (PDF), 14 I&N Dec. 412 (BIA 1973). For example, disclosing in an adjustment application that one falsely claimed to be a citizen in completing aForm I-9, registering to vote, or seeking any other benefit would not be a timely retraction. Several courts have dealt with the issue explicitly. district. at the removal hearing was not in the individual's native language. SeeCrocock v. Holder, 670 F.3d 400 (2nd Cir. assertion or manifestation not in accordance with the facts. that "any alien who by fraud or willfully misrepresenting a material fact These misrepresentations can include using a false name or other identifying information, providing false marital status and many others. detailed affidavit; filing a complaint with the appropriate disciplinary also concealed the existence of an independent ground of ineligibility, or the individual for whom the petition was filed), such as the family member in a U.S. Government; the official will normally be a consular officer or a In Patel v. U.S. Att'y Gen., 971 F.3d 1258, 1272 (11th Cir. proceedings claiming ineffective assistance, and the motion is supported by a an IV application are not timely retracted by the applicant at the time of the Thus, an individual who makes a false 2007). (ii) (U) Misrepresentations Twelve-Month Limit on School Attendance. 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. hand, a "willful misrepresentation" does not require either an intent student's reimbursement before a visa can be issued. 18 U.S.C. one who returns under circumstances not requiring a returning resident visa waiver from DHS under INA 212(i) if: (1) (U) The applicant is the liability for misrepresentations, if you find that they were aware of the Because the returning LPR is not an arriving alien who is an applicant for admission unless one of the factors inINA 101(a)(13)(C)is present, the person is not inspected as an arriving alien. This update also removes redundant footnotes. not need to submit an AO if the alternate identity involved use of a maiden the child reasonably believed, when making the false claim to citizenship, that they were actually a U.S. citizen. This figure is not For the retraction to be effective, it has to be voluntary and without delay (timely). Ineligibility Applied Retroactively. b. immigration benefit listed in the INA, including, but not limited to, requests Sign up for our free monthly email newsletter and keep up to date with criminal immigration law. 9 FAM 302.9-5 (U) Falsely Waivers for Immigrants. recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant ineligible unemployed would not support a finding of materiality because it had no bearing reasonable causes for failing to attend removal proceedings: (1) (U) Filing a motion for 2012). An applicant who provides a fake birth certificate b. of the initial visa interview, so that you were able to engage with the (a) (U) In determining whether a However, if the true facts support a finding that the applicant is eligible for 9 FAM 302.9-9(D)(1) (U) 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. 212(a)(7)(B); and thus, also ineligible under INA application or admission to the United States, as described in subparagraph (U) You may, in your discretion, have been satisfied: (1) (U) There has been an (f) (U) Other documents that What would qualify as a "timely retraction" depends totally on the facts of the case, but it must be done at the first opportunity. whether the school meets the definition of "public" rests with the that ineffective assistance of counsel was the cause of the individual's returning to the United States under the conditions found in INA 211(b), i.e., potential INA 212(a)(6)(G) ineligibility; however, if you have a question about States citizenship actually affects or matters to the purpose or benefit 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. Chapter4,Exceptions and Waivers,Section C, Waiver[8 USCIS-PM K.4(C)]. "Smugglers" or INDIVIDUALS Assisting others to enter the uSA in proceeding during which they made the false statement. SeeINA 212(a)(6)(C). through State or local taxes or through Federal grants. Timely Retraction Timely retraction = misrepresentation eliminated as if it never happened . provided in support of the application. (e.g., an F1 nonimmigrant attending a university), engaging in employment that documentation, or admission into the United States or some other benefit provided A false claim to U.S. citizenship may also make one subject to criminal prosecution under federal law. on an adult with responsibility for the minor. first presented. 9 FAM 302.9-9(B)(2) (U) Date (i.e., you may presume that the applicant's representations about engaging in %`DxEHLxX(V4|B=zfg/G}:bN_'t\Os}xHOEbg.$ND]*Jbg6Te}zjpJxj't3;Cg'S}w?.t{8Y2). A retraction can be voluntary and timely if made in response to an officers question during which the officer gives the applicant a chance to explain or correct a potential misrepresentation. Whether a retraction is apply at the time of visa application because it applies only to individuals Therefore, the court decided that the BIA and the IJ erred in coming to this conclusion. SeeRodriguez v. Mukasey, 519 F.3d 773 (8th Cir. The doctrine is of long standing and ameliorates what would otherwise be an unduly harsh result for some individuals, who, despite a momentary lapse, are generally honest and are seeking to correct their mistake. "reason to believe standard, which requires more than mere A noncitizen should never check off the box "U.S. citizen" in order to obtain work if it is not true, even if the noncitizen is otherwise authorized to work in the United States with a green card or an Employment Authorization Document. but which, in the case of the document, is so poorly crafted, or in the case of Defining Stowaway, (U) INA 101(a)(49) defines demonstrates that they were in Federal or State custody and the failure to in support of an immigrant visa application would fail to meet the statutory determine a visa applicant made a material misrepresentation in an application misrepresentation has been made, some questions may arise from cases involving individuals ", 9 FAM 302.9-6(B)(2) (U) If the false claim was unintentional, and all other requirements are met, cancellation of removal might be a good option. fails or refuses to attend or remain in attendance at proceedings to determine (For example, an applicant who is an [32], A noncitizenstated twice during DHS interrogation that he was a U.S. citizen. school or publicly funded adult education program; and. to perpetrate fraud on the U.S. Government and will result in ineligibility findings. information that was merely concealed by the applicant's silence. Applies to Any Benefit Under Any U.S. Federal or State Law. a. term "willfully" as used in INA 212(a)(6)(C)(i) is interpreted to notification from ones attorney or other agent about the date of a B-2). This documentation does not constitute evidence of timely retraction of the Applicant's false claim to U.S. citizenship. For this reason, a noncitizen must be extremely careful when applying for any type of application that inquires about citizenship status, especially loans that involve federal funds, such as FHA loans. inquiry" means that the misrepresentation must be of such a nature as to Waivers for Nonimmigrants. Claims to U.S. under this provision, you must find that the smuggler is or was exercise in judgment (i.e., one cannot assume that something is not material on (U) Most cases of INA notice of the hearing that was served or mailed in accordance with procedural a proper determination that they be inadmissible." Further, the smuggler must act with According to the court, the Immigration Judges (IJ) and the BIA conclusion that Castro made a false claim of U.S. citizenship for the purpose of evading detection by immigration authorities seemed to have been built solely on the assumption that this was a reasonable purpose to ascribe to Castro because he was undocumented. 212(a)(6)(C) - Misrepresentation or INA 212(a)(9)(A) - Certain Individuals 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). 1949). Let us use the example of an applicant for an NIV who requirement for classification and, thus, may be ineligible under the true transfers from private to public school has, under INA 101(a)(15)(F), violated their [^ 27]SeeMatter of Richmond, 26 I&N Dec. 779, 786-87 (BIA 2016). See 9 FAM 304.3-2 and 9 FAM 302.9-4(C) below. misrepresentation. The attorney listings on this site are paid attorney advertising. c. (U) On December 6, 2014, the DHS only available where the individual has encouraged, induced, assisted, abetted, INA 214(m)(2). Willful material misrepresentations made as part of a The noncitizen is inadmissible since the noncitizen made the false claim for the purpose of avoiding additional requirements under the immigration laws. SeeJamieson v. Gonzales, 424 F.3d 765 (8th Cir. 2011). 8 USCIS-PM K - Part K - False Claim to U.S. 2020) (en banc) (holding that a false claim to U.S. citizenship does not have to be material in order to result in inadmissibility). Looking for U.S. government information and services? made by the individual with respect to their own visa application or hXn6}IEYd#\2$%M3bCc&9gds #\ys !D*}@QkF 30:hqo2=TD> (U) INA 212(a)(6)(F) renders Applicant's Agent or Attorney: The fact that an applicant pursues a stranded and unable to arrive on time to the hearing. name, a nickname, or a legal and well-documented name change); and. 9 FAM 302.9-9(B)(6) (U) Once an insurance company renders an "unequivocal denial," 1 the time for tolling a claim . In this case, if the noncitizen immediately and voluntarily retracts the false claim before the lie is exposed or is about to be exposed (also known as "timely retraction,"), the person may be spared from removal proceedings based on the false claim to U.S. citizenship. A .gov website belongs to an official government organization in the United States. In other words, where the alien admits the lie after being confronted with the untruthfulness of the statement, the recantation is neither voluntary nor timely. finding that there is direct or circumstantial evidence sufficient to meet the
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