Few things have a more dramatic effect on a person’s immigration case than an allegation of False Claim to U.S. citizenship. A recent Board of Immigration Appeals (BIA) decision and resulting policy change by USCIS further ensnare people into this ground of inadmissibility. Let’s take a look:
What is a False Claim to U.S. Citizenship?
Under §212(a)(6)(C)(ii) of the Immigration and Nationality Act, any person 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 (including section 274A) or any other Federal or State law is inadmissible. Under §237(a)(3)(D)(i) of the Immigration and Nationality Act, a person who falsely claims to be a United States citizen is deportable. This often comes up in the context of a non-citizen who registers to vote or checks a box on the I-9 form stating that they are a U.S. citizen in order to get a job or in some other non-immigration related situation where the person is asked for evidence that they are in the United States lawfully. Then when the person applies for a greencard or naturalization, the the issue comes up.
What if I thought I was a U.S. citizen?
This question was recently addressed by the Board of Immigration Appeals in Matter of Zhang. The BIA held that the false claim to citizenship need not be knowing. In other words, a person who truly believed that they were a United States citizen would be deportable under Section §237(a)(3)(D)(i). Likewise, the Eleventh Circuit in Patel v. U.S. Att’y Gen’l, 917 F.3d 1319 (11th Cir. 2019) indicates that the Eleventh Circuit applies the same rational to the ground of inadmissibility in INA §212(a)(6)(C)(ii).
Children are often brought to the United States at a very early age and are often told by their family members that they are citizens. Some children believe they are U.S. citizens because their parents naturalized when they were young. These unsuspecting people then check the I-9 employment form box that says U.S. citizen or register to vote because they believe they are a U.S. citizen. Under Matter of Zhang, the person’s intent is irrelevant. If you are not a United States citizen as a matter of law and you claim to be a citizen, whether honestly or not, you would be deportable and inadmissible.
I claimed to be a U.S. Citizen. Does that mean I’m going to be deported?
Claiming to be a U.S. citizen is just one part of the analysis. It is only a basis of deportation and inadmissibility if you falsely claimed to be a U.S. citizen for “any purpose or benefit under this Act…or any Federal or State Law.” So, the first part of the analysis would be to make sure you are not a U.S. citizen as a matter of law. The citizenship requirements have changed over the years, so there needs to be a thorough analysis of each variation of law as it applied to the person throughout the years to ensure that they did not acquire or derive citizenship. The second part of the analysis would be to determine whether the false claim was made for “any purpose or benefit.” Just telling a friend that you are a U.S. citizen because you felt like it would not bring you under the grounds of inadmissibility or deportation. The most common problematic false claims we see are those made on I-9 forms for the purpose of employment or at the DMV for the benefit of a driver’s license.
Are there any exceptions?
There is one exception provided under INA §212(a)(6)(C)(ii)(II) and §237(a)(3)(D)(ii), but it is extremely limited. If a foreign national claims to be a U.S. citizen and both of the natural or adoptive parents is or was a citizen and the foreign national resided in the U.S. before turning 16, and reasonably believed at the time of claiming to be a U.S. citizen the he or she was a U.S. citizen, then that foreign national would not be inadmissible under the false claims provisions. We’ve had many clients who believed that they were a U.S. citizen because their parents were citizens, either through birth or naturalization, but they were mistaken. For example, a child can derive citizenship from a parent if the parent becomes a U.S. citizen and the child obtains a greencard. Many people do not know that they must obtain a greencard before they can derive citizenship from their parent. The laws change regarding the other elements required to derive citizenship from parents as well. For example, whether both parents had to be citizens, residence requirements in the U.S., and the age of the child when the parents naturalize are all requirements that have changed over time. So, for a very small percentage of people who have falsely claimed to be U.S. citizens, this exception will keep them from being inadmissible or deportable.
There is also something called the timely retraction doctrine, if the false claim is retracted in a timely manner, it may not be considered a misrepresentation. A timely retraction will typically be one that is made in the same proceeding the false claim was made. In other words, if a false claim to citizenship was made to an employer in order to get a job, it would not be a timely recantation to take back the false claim when applying for a greencard or naturalization.
Are there any waivers for a False Claim to U.S. Citizenship charge?
Unfortunately, there is no waiver for the False Claim to U.S. citizenship ground of inadmissibility, except for people applying for refugee status or adjustment of status based on refugee or asylum status. This ground of inadmissibility also doesn’t apply to special immigrant juveniles seeking adjustment or to registry applicants.
Jeremy Lasnetski is a partner at the Law Offices of Shorstein, Lasnetski, & Gihon. The firm focuses on immigration, criminal defense and personal injury. Mr. Lasnetski focuses his practice on immigration and criminal defense and is the former Jacksonville Regional Vice Chair of the American Immigration Lawyer’s Association, Central Florida Chapter. He has represented clients in deportation proceedings, USCIS benefit cases, consular processing cases, and more. He routinely gives presentations on immigration law issues to both criminal and immigration lawyers at conferences and seminars throughout the State of Florida.