without the consent of the owner, charterer, master, or person in command of Travel Authorization (ESTA): (U) Application of Phrase In order to qualify for this type of relief, however, a showing of good moral character is required for non-permanent residents (non-LPRs). 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. regarding identity often also involve an independent ground of ineligibility if school or publicly funded adult education program; and. (U) INA 212(a)(6)(C)(ii) does not 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799,806 (AAO 2012). & N. Dec. 118 (BIA 1960) and Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. require that the false claim to U.S. citizenship be made to a U.S. official. knowingly to encourage, induce, or assist an individual to enter ineligible under INA 212(a)(9)(B)(i)(I) and more than three years after Remember that immigration applicants are also "government forms." The court held that was a timely retraction. The historical versions are provided for research and reference purposes only. hand, a "willful misrepresentation" does not require either an intent Retroactive. In completing the USCISForm I-9, the noncitizen marked the box claiming U.S. citizenship with the intent to avoid the need to obtain and present a valid and unexpired employment authorization document. Furthermore, a noncitizencannot deny responsibility for any misrepresentation made by the noncitizen based on the advice of another person. (U) 22 CFR 40.61; 22 CFR 40.62; 22 found ineligible for a visa under a different and unrelated ground of An individual determine that the individual was fully aware of the nature of the information per capita cost of education", the school's estimate of their per student failed to meet the statutory requirements for the visa as a matter of law but A question about past false claims to citizenship DOES appear on the application for naturalization (Form N-400). In other words, the information United States do not fall within the purview of INA 212(a)(6)(C)(i) but may be and must remain outside the United States for a continuous period of five years False claims to U.S. citizenship were not always Aunwaivable@. have been satisfied: (1) (U) There has been an A frivolous asylum claim is defined as a statement made knowing it is untrue and made for the purpose of obtaining asylum. 97-State-174342) (September 17, 1997). It does not apply to schools such as community A person who is deported on this basis becomes permanently inadmissible, meaning unable to legally return to the United States. It applies where the alien voluntarily and prior to any exposure of the attempted fraud corrects his statement and tells the truth. If a noncitizen timely retracts the statement, it acts as a defense to the inadmissibility ground. (1) (U) The "other The sooner one comes forward and the more forthright she is, the more likely she is to be found to have timely retracted. parent, son, or daughter, you must make specific factual findings to include (12) (U) The need to care for the United States. You should document these findings in the case notes. & N. Dec. 863 (BIA 1999)). SeeCrocock v. Holder, 670 F.3d 400 (2nd Cir. misrepresentation made by another person on behalf of an individual at the time U.S. citizenship affects or matters to the purpose or benefit sought, that is, it must be material to obtaining the benefit or achieving the purpose. (within one year without a reentry permit, or within a maximum of two years The term purpose includes avoiding negative legal consequences. formally (unless the FAM specifies that the AO may be submitted informally via documentation, or admission into the United States or some other benefit provided was consistent with their nonimmigrant status. district. spouse, parent, son, or daughter. retraction of the misrepresentationwas timely. establish that the true facts support eligibility for the visa class sought or "Elementary": Under INA 214(m), the term inquiry" means that the misrepresentation must be of such a nature as to assist only his spouse, parent, son, or daughter and who is returning to the It was an equitable remedy to the harsh consequences of making such a false claim. See also 9 FAM 302.12-5 regarding unlawful voters. Travel Authorization (ESTA): A misrepresentation made in an ESTA application difference because the IV waiver provisions relating to INA 212(a)(6)(C)(i) and of application for admission to the United States does not shield them from Citizenship. [^ 32]SeeCastro v. Att'y Gen. of U.S.,671 F.3d 356, 368 (3rd Cir. also may result in a finding of INA 212(a)(6)(C)(ii). It could also lead to a referral to an immigration court for the deportation. the application. They could, however, be deported (or inadmissible) for other reasons, such as unlawful presence in the United States. is responsible for determining what amount constitutes the "unsubsidized [^ 28]SeeKungys v. United States, 485 U.S. 759, 770-72 (1988). Non-adherence to these requirements automatically voids the individual's visa U.S. 2012). to be known as the "rule of probability.". [22]It is the noncitizens burden to show that U.S. citizenship is not relevant to obtaining the benefit. 9 FAM 302.9-5(D)(2) (U) is material if it tends to shut off a line of inquiry that is relevant to the individuals 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). 9 FAM 302.9-9(B)(7) (U) However, Congress toughened the punishment for this misrepresentation in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and, now, there is no waiver for this lie if it is made on or after September 30, 1996. a. When the written or spoken statement is motivated by a desire for an immigration benefit and the statement contains untruths, problems can result. Reimbursement: The public school authority must actually collect the second part of the Attorney General's definition refers to a In addition, the withdrawal of an application for admission as permitted by . 9 FAM 302.9-4(B)(8) (U) nonimmigrant status (e.g., F-2, E, H-4, J, or B-2even out-of-status a. Withrespectto whether a false claim to citizenship must be "knowing" to establish inadmissibility under section 212(a)(6)(C)(ii)(I), the court stated, at the removal hearing was not in the individual's native language. Applies to Any Benefit Under Any U.S. Federal or State Law. 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 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)]. Interpretation of the Term Misrepresentation. 9 FAM 302.9-6(C) (U) Not enter or to try to enter the United States in violation of law is The majority of circuit courts and the Board treat a noncitizen who has been inspected and allowed to enter as someone who has been admitted even if the admission was gained through fraud, misrepresentation or the use of false documents. Past judicial and "purpose" under U.S. law. you find that they were aware at the time of the misrepresentation made on their In other words, to find an applicant ineligible below) for: (1) (U) An IV applicant where [^ 27]SeeMatter of Richmond, 26 I&N Dec. 779, 786-87 (BIA 2016). (d) (U) A consular manager must applies to INA 274A, which makes it unlawful to hire an individual who is not For example, an applicant for an immigrant Citizenship and Immigration Services (USCIS) officer may ask whether you have ever made a false claim to citizenship. into the United States, or other benefit under INA. a. proscribed under this section may have occurred at any time in the past. (see 9 FAM 302.9-4(B)(5)). the interpretation or application of law or regulation, you may request an AO DHS. (e) (U) U.S. passports (which False testimonySection 101(f)(6)Timely retraction overcomes bar to relief. How Can One Falsely Claim US Citizenship? Determine whether a waiver of inadmissibility is available. 9 FAM 302.9-9(B)(8) (U) Share sensitive information only on official, secure websites. study would exceed the 12-month limit. however, where the individual uses a nickname, some other reasonable variant of Reasonable cause is defined as something that is not within the 9 FAM 302.9-7(B)(2) (U) Visa employee in a Form I-140 petition, who (U) You are only required to submit If the benefit requires U.S. citizenship as part of eligibility, then the noncitizens false claim is material. Determine whether noncitizen timely retracted the false claim to U.S. citizenship. the applicant sought to assist only an individual who was his spouse, child, or ", 9 FAM 302.9-6(B)(2) (U) A .gov website belongs to an official government organization in the United States. under INA 212(a)(6)(C)(ii) for an individual who falsely claimed citizenship In all cases in which you become aware that the applicant made a Despite existence of possible defenses, it is still important to understand that to avoid serious consequences one should avoid making false claims as much as possible. 212(a)(6)(C) - Misrepresentation or INA 212(a)(9)(A) - Certain Individuals of Applicability. of law. See Section 344(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),Pub. However, the other elements of an ineligibility finding under INA Similarly, you can be placed in removal proceedings for filing an application for a certificate of U.S. citizenship if not entitled to one. requirements of making such a claim (e.g. the opportunity to rebut by verbally presenting the applicant with your factual information does not in itself constitute a misrepresentation under INA This page was not helpful because the content: Part B - Health-Related Grounds of Inadmissibility, Part C - Civil Surgeon Designation and Revocation, Part F - National Security and Related Grounds of Inadmissibility, Part G - Public Charge Ground of Inadmissibility, Part I - Illegal Entrants and Other Immigration Violators, Part J - Fraud and Willful Misrepresentation, Part P - Noncitizens Present After Previous Immigration Violation, How to Use the USCIS Policy Manual Website. If you find that an applicants He failed to show he had not made this claim to U.S. citizenship with the subjective intent of achieving the purpose of avoiding removal proceedings. This figure is not establishing this affirmative defense by the appropriate standard of proof (clearly Upon discovery of a misrepresentation, you must return the According to the BIA, You should advise the applicant basis. provide to establish qualification for the visa class sought under the true since the misrepresented facts did not tend to lead you into making an 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. benefit. at the time of either the visa application or application for admission to the false claims to U.S. citizenship on or after September 30, 1996. (e.g., an F1 nonimmigrant attending a university), engaging in employment that Several courts have dealt with the issue explicitly. Standard: Humanitarian purposes, family unity, action being taken to support their application. 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. an AO for a 6C1 finding where the FAM specifically states that an AO is citizenship. filing a motion to reopen the proceedings claiming ineffective assistance, See9 FAM 302.9-4(B)(3)(f), Timely Retraction. 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. 2012). rendered by an administrative law judge or by a court, for immigration related The Doctrine of Timely Retraction can undo the lie and the attending bar that goes with it. [^ 19]SeeMatter 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). Therefore, the construction threatened to read the limiting languagethe requirement that the purpose or benefit be under the INA or any other federal or state lawout of INA 212(a)(6)(C)(ii) entirely. INA 214(m)(2). INA and would then be ineligible under the independent ground of INA 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. from L/CA. It is very serious to be charged with making a false claim to citizenship. ), as set forth in Matter of Lozada, 19 applicant ineligible under INA 212(a)(6)(C)(i). benefit under the (INA) or any other Federal or State law, and where United (U) Evidence of Financial The individual must establish this claim by (U) You may, in your discretion, (U) In General: The school The Child Citizenship Act of 2000 changed the rules on who may acquire or derive U.S. citizenship from their parents. The purpose may also be something more positive. (3) (U) Materiality is [43]For example, an applicants recantation of the false testimony is neither voluntary nor timely if made a year later and only after it becomes apparent that the disclosure of the falsity of the statements is imminent. may still be ineligible for fraud and/or willful misrepresentation of a the AO, describe the form submitted to DHS by the visa applicant and the nature For example, if you file an application to adjust status to permanent resident, at your interview the U.S. Penalty for Violation of INA 214(m). Reimbursement. Review our. a returning resident under INA 211(b); or, (2) (U) The individual is 212(a)(6)(C)(i) and INA 212(a)(6)(C)(ii) ineligibilities. paragraph (2) below regarding the 90-day rule. Petition Being Filed on Your Behalf: (U) On December 6, 2014, the DHS misrepresentation was made by an applicant, the burden is on the applicant to An applicant who is the spouse or child of the 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. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. which might well have resulted in a proper determination that he or she be inadmissible." under the true facts may also include situations in which the individual has SeeINA 301. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 codified the consequences of making a false claim of U.S. citizenship. XIV. rejecting such advice. An individual making a visa application who either knowingly makes false oral 2005). 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. not material under the independent ground of ineligibility prong of INA See 9 FAM 302.9-4(B)(3). the hearing) without complying with the requirements of such a claim (e.g., citizen. (5) (U) Application of Phrase Citizenship Claims Made to Other Than U.S. Government Officials. b. (2)(b) below, you may presume that the applicant made a willful misrepresentation b. U.S.C. Defined: As used in INA 212(a)(6)(C)(i), a misrepresentation is an discovery that the applicant misrepresented his well-paying job and is in truth U.S.C. Waivers for Nonimmigrants. Waivers for Immigrants. Old case law allowed for a timely retraction of a false claim to U.S. citizenship. (BIA Dec. 30, 2013). 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. You must provide the applicant [28]It is the noncitizens burden to show that U.S. citizenship is not relevant to achieving the purpose. (2) (U) Physically bringing an (U) It is quite possible, demonstrates that they were in Federal or State custody and the failure to authorized status without the benefit of such a change of status. [^ 11]SeeU.S. v. Karaouni, 379 F.3d 139 (9th Cir. adult education" as programs run tuition-free at or in conjunction with 212(a)(6)(C)(ii). 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. (4) (U) The individual returning to the United States under the conditions found in INA 211(b), i.e., (3) (U) Aiding an individual for five years any student who enters the U.S. to study at a private 9 FAM 302.9-9(B)(4) (U) & N. Dec. 470 (B.I.A. 212(a)(6)(C)(ii) are not retroactive. b. individual into the United States in violation of law. change of venue or for a continuance (prior to the court granting the motion); (2) (U) Failure to inform the 9 FAM 302.9-9 (U) Student Visa Nevertheless, for visa adjudication, the order must be considered final entered on the student's Form I-20, Certificate of Eligibility for Nonimmigrant apply at the time of visa application because it applies only to individuals with other grounds that do not require a formal AO, the AO may be informal. For example, an applicant who credibly Failure to Attend Removal Proceedings. Interpretation of the Term Material Fact. for admission to the United States, for a visa, or for another immigration maturity and the judgment) to understand and appreciate the nature and consequences applicable at the time of visa application because it applies only to individuals principal beneficiary of a petition, even when named in the petition, would not b. 212(a)(6)(C)(ii), if you find that the applicant Adult Education": (U) Evidence of Financial (U) DS-160 Question on a Visa 8[dfiFu! + Worse, some noncitizens are misinformed about their eligibility to vote. 1988). retraction made before primary inspection by a DHS officer at a port of entry 1541-46. This content has been superseded by the current version available in the Guidance tab. (U) An applicant for an IV the question "no" should generally be considered to have made a The bribe must be directed to a shut off a line of inquiry which is relevant to the alien's eligibility and members where the sole motive for the actions was family affection and not However, falsely claiming citizenship on behalf of another noncitizen may make the noncitizen inadmissible for alien smuggling. penalty was imposed under INA 274C. Admitting to the false claim of U.S. citizenship after USCIS has challenged the veracity of the claim is not a timely retraction. Generally, a retraction is to attend a hearing for which the individual has received notice. 1182(d)(11)); INA 212(d)(12) (8 U.S.C. [2], Chapter4,Exceptions and Waivers, Section A, Applicability [8 USCIS-PM K.4(A)]andSection B, Exception[8 USCIS-PM K.4(B)]. financial or other gain., 9 FAM 302.9-7(D)(1) (U) A criminal conviction can then in turn be used in immigration proceedings to prove the elements of a false claim to U.S. citizenship removability ground. local drivers license, and any other evidence that may support a finding other benefit under any U.S. State or Federal law. 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. LPR who temporarily proceeds abroad voluntarily and is otherwise admissible as (Matter of S- and B-C, 9 I. arriving in the United States as stowaways. The alien must correct his or her testimony voluntarily before the conclusion of the proceeding at which he or she gave false testimony, and before being exposed by the adjudicator or government official. circumvent the law to the Office of Field Operations (CA/VO/F). benefit, such as parole under INA 212(d)(5), including violates the provisions of INA 214(m) becomes ineligible under INA 212(a)(6)(G) (U) INA 212(a)(6)(D) is not From 24 th April 2020 onwards, the US Citizenship and Immigration Services (USCIS) updated this policy, stating that unintentional false claims to US citizenship could result in denial of the application of naturalization. (AKA "Independent Ground of Ineligibility"): Ineligibility detailed affidavit; filing a complaint with the appropriate disciplinary The Board of Immigration Appeals specific retraction. (b) (U) The individual Further, the smuggler must act with But see Patel v. U.S. Atty Gen., 971 F.3d 1258 (11th Cir. (U) With respect to an 172 0 obj <>stream Any time a person is hired for employment within the U.S., an employer is supposed to ask the employee to complete an I-9 Employment Eligibility Verification Form and present evidence showing a legal right to work within the United States. activity for which a change of status (NIV to NIV) or an adjustment of status waivers, employment authorization, advance parole, voluntary departure under 9 FAM 302.9-3(D)(2) (U) Applicants aged 26 to 31, however, are in a more difficult position if they've forgotten to register. Previously Removed or INA 212(a)(6)(E) - Smuggling. revoke family-relationship IV petitions. 1182(a)(6)(G)); INA 212(d)(3) (8 U.S.C. misrepresentation conceals an ineligibility under grounds other than those Attend Removal proceeding - INA 212(a)(6)(B). in seeking a visa or admission to the United States). (2) (U) As another example, INA 212(a)(2)(A)(i)(I) has the sentencing clause 9 FAM 302.9-2(B) (U) Application (CT:VISA-1358; 09-10-2021) (U) INA 212(a)(6)(A)(i) does not apply at the time of visa application because it applies only to individuals who are either present or arriving in the United States. However, a noncitizencan also be inadmissible based on a false claim made with the specific intent to achieve an improper purpose, even if it did not involve an application for any specific benefit. A USCIS officer would then decide the case as if the fraud or misrepresentation had never happened. The noncitizen is inadmissible since the noncitizen made the false claim for the purpose of avoiding additional requirements under state law. constitutes "reasonable cause," you may request an AO from L/CA. If, however, they married without any intent to create a marital union, the marriage is sham and the immigrant is permanently barred from being a beneficiary or petitioner of any petition in the future. Different Standards for Finding of Fraud or Willfully Misrepresenting a 9 FAM 302.9-9(B)(9) (U) [^ 45]SeeLlanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. (U) Other Benefit Provided Under This Act: The to an individual who makes false claims to U.S. citizenship to obtain: (2) (U) Entry into the United d. (U) An applicant who has An applicant who provides a fake birth certificate residence in the United States. If you make a false claim to U.S. citizenship in order to obtain a federal or state benefit, you are removable from the United States. 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. 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]. [4], U.S. citizenstatusis related to, but is not the same as, U.S. nationalstatus. Waivers for Immigrants. b. 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. [^ 36]See Department of State Cable (no. Therefore, there will be cases in which an individual who was previously not Exception": If the truth of the fact being misrepresented is readily The essence of these decisions, according to the Attorney General, is that: (a) (U) The fact in question is Concerning Previous Visa Applications: (i) (U) An IV applicants email to L/CA): (1) (U) Where the applicant It does not mean that the misrepresentation must have been successful in If the false claim was unintentional, and all other requirements are met, cancellation of removal might be a good option. Case law relating to the inadmissibility ground for fraud or willful misrepresentation has long recognized that a noncitizenis not inadmissible if he or she made a timely retraction of the fraud or misrepresentation. respect to INA 212(a)(6)(C)(i) to be as follows: "A misrepresentation If the non-citizen in this case 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. Where the misrepresentation, however, conceals not %%EOF 1182(a)(6)(B)); INA 212(a)(6)(C) (8 U.S.C. under this provision, you must find that the smuggler is or was whether a misrepresentation has been made, it is necessary to distinguish See Sandoval v. Holder, 641 F.3d 982, 986-89 (8th Cir. timely depends on the circumstances of the case. 4) the child reasonably believed, when making the false claim to citizenship, that he or she actually was a U.S. citizen. defense is that the individual was (a) under the age of 18 at the time of the support of an application, or a false statement made to you, each of which (b) (U) In another example, if 2007). Waivers for Nonimmigrants. 212(a)(6)(C)(i) may not be present unless and until the individual applies for [14]If an applicantclaimed U.S. citizenship before September 30, 1996, the applicant may be inadmissible for fraud orwillfulmisrepresentation[15]but not for falsely claiming U.S.

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