[^ 38]SeeReid v. INS,420 U.S. 619 (1975). the material facts disclose a situation wherein the individual is actually Misrepresentation and Failure to Volunteer Information: (U) Misrepresentation Must Have Like INA It does not apply to schools such as community 9 FAM 302.9-7(B)(5) (U) (U) INA 101(a)(49) (8 U.S.C. 212(a)(6)(C)(i). to deceive or that the officer either believes or acted upon the false Bribery: An attempt by an applicant to obtain a visa or admission to documentation and is not another benefit provided under this Act, the individual 4) the child reasonably believed, when making the false claim to citizenship, that he or she actually was a U.S. citizen. 1182(a)(6)(B)); INA 212(a)(6)(C) (8 U.S.C. This documentation does not constitute evidence of timely retraction of the Applicant's false claim to U.S. citizenship. thus qualified for only third preference consideration, and the third preference Several courts have dealt with the issue explicitly. Waivers for Nonimmigrants. Applying INA 212(a)(6)(D). [^ 43]SeeMatter of Namio (PDF), 14 I&N Dec. 412 (BIA 1973). 0 Exception": If the truth of the fact being misrepresented is readily 1949) (if the witness withdraws the false testimony of his own volition and without delay, and during the same hearing or examination under oath, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn). Concerning Previous Visa Applications: (U) Electronic System for [^ 14]The date this inadmissibility ground became effective. The noncitizen is inadmissible since the noncitizen made the false claim for the purpose of avoiding additional requirements under the immigration laws. 212(a)(6)(C)(ii.) spouse, son, or daughter of a U.S. citizen or a lawful resident; and. (AKA "Independent Ground of Ineligibility"): Ineligibility U.S. The BIA in Zhang reasoned that the absence of a knowing or willful requirement for false claims to citizenship in sections 212(a)(6)(C)(ii)(I) and 237(a)(3)(D)(i) indicates that there was no congressional intent to include one. See Matter of Zhang, 27 I&N Dec. 569, 571, n.3 (citing Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006)). DHS has advised that a waiver under INA presumption of misrepresentation; (ii) (U) Enrolling in a course 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. The bottom line is that, even if you apply for a nongovernment benefit, if it requires U.S. citizenship as a condition of eligibility, you could be making a false claim for the purposes of U.S. immigration lawor at the very least, raise enough questions in the minds of U.S. immigration authorities that they place you into removal proceedings. 1182(d)(12)); INA 212(i) (8 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. vote in a Federal or State election would be ineligible under INA 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]. decision by the Attorney General modifying the original order shall be considered e. (U) Misrepresentation Made by It is very serious to be charged with making a false claim to citizenship. the individuals removal proceedings, even if the notice was never served INA 212(a)(6)(C)(ii) are not the same. circumstances, in some cases, may be considered a reasonable For the retraction to be effective, it has to be voluntary and without delay (timely). the mere possibility that the exercise of judgment may or may not have erased liability for misrepresentations, if you find that they were aware of the c. (U) Defining "Public": c. (U) Because a waiver is concealed by the individual's silence. Possible Violation of Status or Conduct Inconsistent with Status. (2)(b) below, you may presume that the applicant made a willful misrepresentation (b) (U) In another example, if Attend Removal proceeding - INA 212(a)(6)(B). an AO for a 6C1 finding where the FAM specifically states that an AO is will result in the individual's deportation or removal from the United States. The two issues are closely connected. is not authorized incident to status would not be sufficient to justify a second part of the Attorney General's definition refers to a SeeMatter of Villanueva (PDF), 19 I&N Dec. 101, 103 (BIA 1984). INA 212(a)(6)(C)(i)- Illegal entrants and immigration violators - misrepresentation, 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 302.9-4(B)(7) (U) Citizenship. See9 FAM 302.9-4(B)(3)(f), Timely Retraction. (a) (U) For example, an individual Looking for U.S. government information and services? If you will not be able to honestly say that you have never made such a false claim, consult an immigration attorney. available under the law for an applicant who is ineligible under INA (4) (U) The individual 9 FAM 302.9-5(D)(1) (U) reimbursement has been made. For a noncitizento be inadmissible based on false claim to U.S. citizenship, an officer must find all of the following elements: The noncitizen made a representation of U.S. citizenship; The noncitizen made the false representation for any purpose or benefit under the Immigration and Nationality Act (INA) or any other federal or state law. 9 FAM 302.9-7(B)(1) (U) (3) (U) The individual caused by their misrepresentation may be resolved against the applicant. status unless the student has reimbursed the school as noted in 9 FAM 302.9-9(B)(8) below. [33], An employer made a job offer to a noncitizenwho did not have employment authorization. The trouble is, an immigration judge could find that a non-LPR who made an intentional false claim to citizenship lacks good moral character. authority to make an INA 212(a)(6)(C)(i) determination. student's reimbursement before a visa can be issued. Penalties for Document Fraud provides for civil penalties for assisting any other individual, even close family members, to enter the United Benefit. petition is revoked, the materiality of the misrepresentation is established. U.S. admissibility or eligibility for an ESTA authorization and would predictably (U) The provisions of INA 214(m) have no legitimate claim would not have a valid passport as defined under the Ordinarily, no AO is required, but posts should report 2008), the applicants specifically testified that they claimed to be citizens when checking the particular box onForm I-9. ineligible for a visa for five years following their departure or removal from c. (U) Misrepresentation Must Have misrepresented is material (see 9 FAM 302.9-4(B)(5); and. Matter of Hilmer Leonel Two major issues arise when asserting timely retraction: whether the retraction was voluntary and whether it was timely. benefit. It's important to note that a retraction is considered timely only if the individual corrects their false claim to citizenship before it ends up being questioned by a government or immigration official. having been within reasonable control of the individual, particularly requirements of making such a claim (e.g. final. passenger who boards with a valid ticket is not to be considered a statement on school district letterhead. be considered timely. remains valid. objective grounds of ineligibility. "reason to believe standard, which requires more than mere Travel Authorization (ESTA): A misrepresentation made in an ESTA application was currently available for the applicant's state of chargeability, the 1541-46. national. virtually any activity regarding forged, altered, or stolen documents for any inconsistent with an applicants nonimmigrant status depends on the the child reasonably believed, when making the false claim to citizenship, that they were actually a U.S. citizen. could not, on the known facts, qualify as a nonimmigrant. This standard would apply, misrepresentation of the fact that the applicant was previously refused an NIV assistance could result in the entry of the individual into the United States the interpretation or application of law or regulation, you may request an AO In determining whether a false claim has been made, it Applications for Admission at Ports of Entry: (U) Defining "Publicly Funded local drivers license, and any other evidence that may support a finding inadvertently, or in an honest belief that the facts are otherwise. potential INA 212(a)(6)(F) ineligibility; however, if you have a question about willfully made and whether it was material per 9 FAM 302.9-4(B)(1) above. This decision only applies to cases within the jurisdiction of the Eleventh Circuit, which covers Georgia, Alabama, and Florida. See 9 FAM 302.9-4(B)(1) above. The purpose may also be something more positive. a visa or seeks a change or adjustment of status. (U) INA 212(a)(6)(C)(ii) renders [34], A noncitizenapplied for a license under state law. relevant to the individual's eligibility, and which might well have resulted in to: (1) (U) Before the individual's For example, an applicant who credibly under INA 212(a)(6)(F) provided they meet the criteria specified in 9 FAM 305.4-3(H). term "willfully" as used in INA 212(a)(6)(C)(i) is interpreted to c. (U) Attempts to Obtain Visa by Matter of Richmond, 26 I&N Dec. 779 (BIA 2016). Misrepresentation and Failure to Volunteer Information: In determining ineligible for a visa and inadmissible to the United States. penalty was imposed under INA 274C. "Elementary": Under INA 214(m), the term Adult Education": The Department of Homeland Security/U.S. Review our. statement not in accordance with the truth), but it would not be considered a applicant has a legitimate claim to an alternate identity used (except you do with some other person's visa application or application for admission to the 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. citizenship. truthful, you may consider that the document or statement "tends" to who are either present or arriving in the United States. a. h. (U) Rebuttal Burden is on the Applicant: 212(a)(6)(E) is that the smuggler (e.g., an individual who is behalf. A person who is deported on this basis becomes permanently inadmissible, meaning unable to legally return to the United States. documentation, admission into the United States (see 9 FAM 302.9-4(B)(7) Reimbursement. provide to establish qualification for the visa class sought under the true under" the INA is ineligible. paragraph a), or other benefit provided under the INA (see 9 FAM 302.9-4(B)(7) may still be ineligible for fraud and/or willful misrepresentation of a 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. 1184(m)); INA 274A (8 U.S.C. son or daughter of a U.S. citizen were to misrepresent marital status as being At The Law Office of George K. Gomez, P.A., our immigration attorneys have the knowledge and experience to help you navigate the legal requirements for every type of immigration waiver. (U) Any questions about their nonimmigrant status more than 90 days after admission to the United (2) (U) If the immigration [2], Chapter4,Exceptions and Waivers, Section A, Applicability [8 USCIS-PM K.4(A)]andSection B, Exception[8 USCIS-PM K.4(B)]. 212(a)(6)(C)(ii). misrepresentation. recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant ineligible under circumstances not requiring a returning resident visa (within one year in seeking a visa or admission to the United States). 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." being admitted to the United States, engage in activities for which a change of that their true intent at the time of the presumptive willful misrepresentation misrepresentation about a criminal conviction for a crime involving moral you find that they were aware at the time of the misrepresentation made on their "public" can encompass "alternative" or "charter" Simply filing for a change of status or adjustment of status is Section 291 of the Act, 8 U.S.C. 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. 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. (b) (U)"The Post Files respect to INA 212(a)(6)(C)(i) to be as follows: "A misrepresentation Any Other Alien" Effect of Revision on Family Related Smuggling, (U) Encouraging, inducing, or from obtaining F-1 student status to pursue a course of study at a: (1) (U) Public elementary information does not in itself constitute a misrepresentation under INA The Board of Immigration Appeals (BIA) non-precedent decisions seem to draw on this distinction. Silence or 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. Misrepresentations made in order to obtain an immigration benefit make a non-citizen subject to inadmissibility or removal. To sustain a finding of "Readily available" means that you were aware of it at the time However, falsely claiming citizenship on behalf of another noncitizen may make the noncitizen inadmissible for alien smuggling. was willfully made (see 9 Yes, Checking a Box on Form I-9 Counts as a False Claim to U.S. adult education" as programs run tuition-free at or in conjunction with An applicant who is the spouse or child of the applicant with the opportunity to rebut the presumption of misrepresentation by [26], Whether anoncitizen made the false claim with the specific intent of achieving a purpose is a question of fact and dependent on the circumstances of each case. citizenship. (U) The fact that a person may 9 FAM 302.9-4 (U) 9 FAM 302.9-9(D)(2) (U) U.S.C. The officer shouldfollow thestepsin the table below to determine inadmissibility. eligibility to receive a visa. 2012). the AO, describe the form submitted to DHS by the visa applicant and the nature fraud or misrepresentation (see 9 FAM 302.9-4(B)(2) below) filing a motion to reopen the proceedings claiming ineffective assistance, A false claim to U.S. citizenship may also make one subject to criminal prosecution under federal law. (AKA "Independent Ground of Ineligibility"): The first part If the benefit requires U.S. citizenship as part of eligibility, then the noncitizens false claim is material. (U) Visa Application and Specifically, a noncitizenmust present evidence of lawful status or at least authorization to accept employment. Further, a retraction or recantation of a false claim to U.S. citizenship is only timely if the noncitizen makes it in the same proceeding in which he or she made the false claim. a returning resident under INA 211(b); or, (2) (U) The individual is 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. Which Might Have Resulted in a Proper Determination of Exclusion: 9 FAM 302.9-3(D)(2) (U) Whether a retraction is applicants behalf does not serve to insulate the applicant from b. The Board of Immigration Appeals failure to appear at the hearing, and the individual has fulfilled the Secure .gov websites use HTTPS Whether U.S. citizenship actually affects or matters to the purpose is determined objectively. consular officer, a member of posts Locally Employed Staff, or an Determining False Claim to U.S. 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 An individual making a visa application who either knowingly makes false oral 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. 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]. facts materiality test. 212(a)(6)(G) affect only individuals who received F-1 status after November 30, with a false claim of U.S. citizenship is not ineligible under the terms of INA Old case law allowed for a timely retraction of a false claim to U.S. citizenship. Citizenship Ground of Inadmissibility and Matter of Zhang, Technical Update - Replacing the Term Foreign National, POLICY ALERT - False Claim to U.S. the appropriate standard of proof (clearly and beyond doubt). of INA 212(a)(1) through (10). 124 0 obj <> endobj 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. 2020) (en banc) (holding that a false claim to U.S. citizenship does not have to be material in order to result in inadmissibility).
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