False Claim to U.S. Citizenship
A false claim to U.S. citizenship, even if innocent or unintentional, may lead to severe immigration consequences down the road. A false claim to U.S. citizenship can jeopardize a non-citizen’s ability to naturalize and may render a non-citizen deportable.
Further, because false claims of citizenship are so heavily disfavored in the United States, the Immigration and Nationality Act (“INA”) imposes a permanent bar on admission to individuals who have falsely claimed to be U.S. citizens.
This article describes the penalties of a false claim to U.S. citizenship as well as the exceptions and waivers.
Statutes Detailing the Consequences for False Claims to Citizenship
The inadmissibility ground for false claims of U.S. citizenship is found in INA § 212(a)(6)(C)(ii). This provision states that anyone who falsely represents themselves as being a U.S. citizen for any purpose or benefit under the INA, federal, or state law is inadmissible. The statute acts as a permanent bar on admission.
Using similar language, INA § 237(a)(3)(D) states that anyone who falsely claims to be a U.S. citizen is deportable.
Collectively, these two INA provisions inflict significant and severe penalties on non-citizens claiming U.S. citizenship.
In addition to suffering adverse immigration consequences, individuals who falsely claim U.S. citizenship can also face other civil and criminal ramifications. False claims of U.S. citizenship can lead to civil penalties for document fraud under INA § 274C. Individuals may also be criminally convicted for falsely and willfully representing U.S. citizenship and face a criminal fine or imprisonment for up to three years.
Before an immigration officer from U.S. Citizenship and Immigration Services (“USCIS”) may decide that an individual is inadmissible because of a false claim to U.S. citizenship, they must determine whether three elements are met:
- The individual claimed to be a U.S. citizen;
- The claim was false; and
- The false claim was made for a purpose or benefit under the INA, federal, or state law.
The USCIS Policy Manual provides a six-step process for determining whether an individual is inadmissible. Each step is briefly discussed below in turn:
Step 1: Did the individual falsely claim U.S. citizenship?
The false claim does not need to be under oath nor does it need to be made to an immigration official. Instead, the claim can be made to any government official, private person, or entity.
False claims to U.S. citizenship may be made in numerous settings, including:
- Registering to vote
- I-9 employment form
- Oral Interviews
- Written applications
Step 2: Did the individual make the false claim on or after September 30, 1996?
If the false claim was made before September 30, 1996, then the false claim to citizenship inadmissibility ground does not apply. However, the individual may still be inadmissible under the fraud or willful misrepresentation inadmissibility grounds.
Step 3: Did the individual make the false claim for any purpose or benefit under the INA, federal, or state law?
The false claim inadmissibility ground applies if an individual makes a false claim intending to achieve an improper purpose, a specific benefit, or both. The claim of U.S. citizenship must materially relate to the purpose or benefit. For example, if an individual falsely asserted to be a U.S. citizen in order to obtain employment, but had a valid Employment Authorization Document (EAD), there would be no “purpose or benefit” in such false claim to U.S. citizenship since the individual could be employed without making the false claim to U.S. citizenship. Therefore, in this example the inadmissibility ground would not apply. On the other hand, if the individual did not have a valid EAD, the inadmissibility ground would apply because they would reap the benefit of employment based upon the false claim to U.S. citizenship.
Possible purposes under the INA, federal, or state law include avoiding removal proceedings and other negative legal outcomes. Possible benefits include entry into the United States, obtaining employment (as described above), and procuring a U.S. passport.
Step 4: Did the individual make a timely retraction?
If an individual makes a voluntary and timely retraction of a false claim to U.S. citizenship, then the inadmissibility ground does not apply because the timely retraction serves as a defense.
What is considered timely? A retraction is timely if the individual corrects the false claim to U.S. citizenship before an immigration or government official questions the truthfulness of the statement or concludes the proceeding where the false claim was made.
Step 5: Does a statutory exception exempt the individual from the inadmissibility grounds?
Inadmissibility based on a false claim to U.S. citizenship does not apply to two categories of non-citizens:
- Special immigrant juveniles who are seeking adjustment of status, and
- Registry applicants (noncitizens who have lived in the United States since 1972 and who may apply for lawful permanent resident status).
Congress also created a statutory exception in 2000 that retroactively applies to a narrow group of people. If the following requirements are met, a non-citizen is admissible despite a false claim to U.S. citizenship:
- The false claim to U.S. citizenship was made on or after September 30, 1996;
- Each of the non-citizen’s parents was a U.S. citizen at the time of the false claim;
- The non-citizen resided in the United States prior to age 16; and
- The non-citizen made the false claim to U.S. citizenship while reasonably believing that he or she truly was a U.S. citizen.
Step 6: Is a waiver of inadmissibility available?
Inadmissibility waivers exist for nonimmigrants seeking admission after a false claim to U.S. citizenship. In addition, refugees and individuals seeking adjustment of status based on their refugee or asylee status may be eligible for a waiver.
However, immigrants seeking lawful permanent resident status typically are not eligible to apply for a waiver.
Matter of Zhang
In June of 2019, a decision by the Board of Immigration Appeals (“BIA”) departed from years of consistent policy. In Matter of Zhang, the BIA explained that an individual who falsely claims citizenship without knowledge that the claim is false is deportable. In other words, an individual may be deportable even when unknowingly making false claims of U.S. citizenship.
As a result of this decision, the U.S. government is no longer required to show that the non-citizen’s intent was to falsely claim U.S. citizenship.
While Matter of Zhang concerned deportability based on a false claim to citizenship, the USCIS Policy Manual has applied the decision to the similar inadmissibility ground because of the two statutes’ similar language.
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