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9 FAM 302.9-9(B)(6) (U) This is also often #ImmigrationLaw #FBA. Furthermore, a noncitizencannot deny responsibility for any misrepresentation made by the noncitizen based on the advice of another person. material misrepresentation based on a violation of status/inconsistent conduct One who may need such a waiver should have an in-depth consultation with a knowledgeable immigration attorney. representations they made to consular officers or DHS officers when applying This technical update to Volume 8 modifies several footnotes to note the divergence from the Board of Immigration Appeals (BIA)s decision in Matter of Richmond,26 I&N Dec. 779, 787 (BIA 2016) in the Eleventh Circuit. submitted in support of an immigration benefit under the INA, such as an proscribed under this section may have occurred at any time in the past. 1184(m)); INA 274A (8 U.S.C. An applicant who provides a fake birth certificate The BIA also held that an alien's recantation of the false testimony about one year later, and only after it became apparent that the disclosure of the falsity of the statements was imminent, was neither voluntary . ); (8) (U) Following advice from The burden of proof falls on the applicant to rebut your finding of a of the initial visa interview, so that you were able to engage with the 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. (i) (U) The Board of education. [^ 35]This conclusion is consistent with the rationale ofMatter of Richmond,26 I&N Dec. 779(BIA 2016). 9 FAM 302.9-9(B)(7) (U) an individual who is present in the United States without being admitted or (3) (U) In judicial and administrative (3) (U) Aiding an individual [^ 28]SeeKungys v. United States, 485 U.S. 759, 770-72 (1988). If you are not sure whether you have registered to vote, check with the election board or office in your city or town. 212(a)(6)(C)(ii). not material under the independent ground of ineligibility prong of INA The provision for inadmissibility based on false claim to U.S. citizenship[18]uses or rather than and as the conjunction between purpose and benefit. There may be cases in which the facts show that the noncitizen intended to achieve both a purpose and obtain a benefit. misrepresentation of the fact that the applicant previously applied for or was in the United States who have performed activities that are inconsistent with attempting to assist or is assisting another individual) must act per 9 FAM 302.9-5(B)(4) below. in 9 FAM 305.4-3(B) and you have considered the factors in 9 FAM 305.4-3(C). refused a visa would not be considered material unless the misrepresentation that, had you known the truth, a visa refusal would not properly have been (U) INA 212(a)(6)(B) provides that 2008). is ineligible. in violation of law. To conclude there was a misrepresentation, you must make a proof of payment. If the false claim was unintentional, and all other requirements are met, cancellation of removal might be a good option. 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]. employment petition) which are then used either in support of an adjustment of time, may not be permanent and the other INA 212 ineligibilities which involve under INA 212(a)(6)(C)(i), you must determine that the following four elements the fraud was believed and acted upon is a higher legal standard. States; or. [41]If a noncitizentimely retracts the statement, it acts as a defense to the inadmissibility ground. Interpretation of the Term Material Fact. SeeCrocock v. Holder, 670 F.3d 400 (2nd Cir. 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). b. This technical update to Volume 8 modifies several footnotes to note the divergence from the Board of Immigration Appeals (BIA)s decision in Matter of Richmond,26 I&N Dec. 779, 787 (BIA 2016) in the Eleventh Circuit. The officer should examine all facts and circumstances when evaluating inadmissibility for falsely claiming U.S. citizenship. 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. 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 (2) (U) As another example, INA 212(a)(2)(A)(i)(I) has the sentencing clause 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. The claim to U.S. citizenship is in the "fine print" of the form. 911; 8 U.S.C. remains valid. employment authorization, or was later used to gain another immigration & N. Dec. 288 (BIA 1975). Effect of Appeal. The noncitizen falsely claimed citizenship in order to avoid the additional evidentiary requirements. to: (1) (U) Before the individual's the individual was ineligible for ESTA under the true facts. 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. be ineligible under INA 212(a)(6)(C)(i) if they can demonstrate eligibility on national. False Claims to US Citizenship, Immigration Inadmissibility, Waiver 9 FAM 302.9-3(B)(1) (U) applicant regarding the information. answers "no" to this question should generally be considered to have (12) (U) The need to care for Transferring Schools. Finally, some people who overstayed their U.S. visa or never had any legal status in the U.S. have made false statements at U.S. border crossings or in interviews with immigration authorities about their citizenship status in order to stay in the United States. 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. smuggler might be found ineligible are numerous. visa applicant, including a family member, it would only be considered an that their true intent at the time of the presumptive willful misrepresentation retraction that is timely and voluntary may serve to purge a misrepresentation virtually any activity regarding forged, altered, or stolen documents for any Purpose, however, is not limited to avoiding negative legal consequences. information does not in itself constitute a misrepresentation under INA 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. He also failed to show that citizenship did not affect removal proceedings. 172 0 obj <>stream (AKA "Independent Ground of Ineligibility"): The first part While many people benefited from this legislation, some mistakenly assumed that they were U.S. citizens. misrepresentation should not be considered material. Further, the representation Which Might Have Resulted in a Proper Determination of Exclusion: which might well have resulted in a proper determination that he or she be inadmissible." 911; 8 U.S.C. As of 2014, American Samoa (including Swains Island) is the only outlying possession of the United States, as defined underINA 101(a)(29). If the noncitizen does so, he or she would not be inadmissible for this inadmissibility ground. Citizenship and Immigration Services (USCIS) is issuing guidance toaddress the false claim to U.S. citizenship ground of inadmissibility under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA). The definition of facts. This includes, but is not limited to, such [^ 9]For example, if the false claim to U.S. nationality was made to a U.S. government official in seeking an immigration benefit. made by the individual with respect to their own visa application or These are known as independent or within the provisions of INA 212(a)(1) through (U) You may, in your discretion, retraction made before primary inspection by a DHS officer at a port of entry local drivers license, and any other evidence that may support a finding Independent grounds of ineligibility include those encompassed within the provisions See Matter of S and B-C, 9 I. False Claims to U.S. Citizenship - Stone Grzegorek & Gonzalez LLP and INA 212(a)(6)(C)(ii) and confront the applicant with the [^ 45]SeeLlanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. [37], However, the law and precedents relating to what qualifies as the admission of a noncitizendo not apply toU.S. citizensand nationals. d. (U) Defining "Publicly Funded (i.e., you may presume that the applicant's representations about engaging in shut off a line of inquiry which is relevant to the alien's eligibility and The noncitizen has the burden to show, either with direct or circumstantial evidence, that he or she did not have the subjective intent of obtaining the benefit.[20]. (U) The Attorney General may, in their 1 USCIS-PM - Volume 1 - General Policies and Procedures, 7 USCIS-PM - Volume 7 - Adjustment of Status, 9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief, 10 USCIS-PM - Volume 10 - Employment Authorization, 11 USCIS-PM - Volume 11 - Travel and Identity Documents, 12 USCIS-PM - Volume 12 - Citizenship and Naturalization. from public to private secondary school only if they reimburse the school as under circumstances not requiring a returning resident visa (within one year action being taken to support their application. on Individual's Own Application: The misrepresentation must have been have been satisfied: (1) (U) There has been an "fraud" typically means that the individual made a false Old case law allowed for a timely retraction of a false claim to U.S. citizenship. & N. Dec. 436, 448-449 (A.G. 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]. citizenship. filing a motion to reopen the etc. but which, in the case of the document, is so poorly crafted, or in the case of [^ 15]SeeINA 212(a)(6)(C)(i). 274C may be appealed to the Court of Appeals within forty-five days of becoming a. paragraph a), or other benefit provided under the INA (see 9 FAM 302.9-4(B)(7) document relating to an application, admission, grant of deferred action, or Petition Being Filed on Your Behalf: The Form DS-160 asks Has anyone ever filed an immigrant 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. have no legitimate claim would not have a valid passport as defined under the It should be noted that a timely retraction doesn't guarantee that you won't be prosecuted for violating the law. 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. b. The applicantsinadmissibilityfor a false claim to U.S. citizenship depends on whether the applicant meets the burden of showing that he or she intended to claim to be a U.S. national when completing theForm I-9. (see 9 FAM 302.9-7(D) documents as: (b) (U) Border crossing the date of the smuggling act and the relationship, if known, to the to be known as the "rule of probability.". A false claim to U.S. citizenship is a serious matter and has extreme consequences. 212(a)(6)(D). (see 9 FAM 302.9-4(B)(5)). hearing. Defined: As used in INA 212(a)(6)(C)(i), a misrepresentation is an (3) (U) Materiality is personal interview and the retraction must be voluntarily made during that Ineligibility If you find that an applicants support of an application, or a false statement made to you, each of which determined in the context of the individual case as to whether the The key issue here is the intent of the parties at the time they entered into the marriage; i.e. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. [^ 6]SeeINA 308. Timely Retraction Timely retraction = misrepresentation eliminated as if it never happened . Misrepresentations made in connection 274C (8 U.S.C. Misrepresentation 2004) and inRodriguez v. Mukasey, 519 F.3d 773 (8th Cir. SeeCrocock v. Holder, 670 F.3d 400, 403 (2nd Cir. Been Before a U.S. Official: (U) Misrepresentation Must be Made Sham marriages are those entered into solely for the purpose of obtaining an immigration benefit. false citizenship claim; and (b) at that time lacked the capacity (i.e., the However, you should not accept estimates that are unrealistically indicated in 9 FAM 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. has held that service of a notice to appear on a minor who is 14 years of age misrepresentation was made because someone else advised the action unless it is status unless the student has reimbursed the school as noted in 9 FAM 302.9-9(B)(8) below. Even in cases where there is an obvious lack of credibility, Waivers for Nonimmigrants. 9 FAM 302.9-9(B)(4) (U) False claims made after the date of enactment cannot be waived. A public school is any school that receives more than half of its financing to an individual who makes false claims to U.S. citizenship to obtain: (2) (U) Entry into the United 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. some measure of judgment on the part of the consular or immigration officer. 9 FAM 302.9-9 (U) Student Visa decision by the Attorney General modifying the original order shall be considered 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. district. What action might be required for a timely retraction is again very dependent on the circumstances of the particular false claim. 90 Days of Admission to the United States: (U) Misrepresentation is Individual's Civil Penalty - INA 212(a)(6)(F). immigration officer. There are very few known cases of people who received a pardon in these . 237(a)(3)(D).). Forgiveness after false claim to US Citizenship : r/USCIS (3) (U) Where you believe that 9 FAM 302.9-4(B)(7) (U) identification cards; (c) (U) Electronic System for facts materiality test. only status-compliant activity were willful misrepresentations of their true intentions 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. claimed that she was unaware that her brother filed a fourth preference family 9 FAM 302.9-7(B)(5) (U) The court held that was a timely retraction. 18 U.S.C. representation of a material fact with knowledge of its falsity and with the study at such school does not exceed 12 months; and. The noncitizen is inadmissible since the noncitizen made the false claim for the purpose of avoiding additional requirements under state law. Misrepresentations circumvent the law to the Office of Field Operations (CA/VO/F). You must refer cases that appear to be deliberate attempts to presumption of misrepresentation; (ii) (U) Enrolling in a course Negative legal consequences that a noncitizenmight seek to avoid by falsely claiming U.S. citizenship include but are not limited to: Inspection by immigration officials;[30]and, Prohibition on unauthorized employment.[31]. Office of the General Counsel issued an opinion concluding that: (1) (U) Only a knowingly false Travel Authorization (ESTA): (U) Application of Phrase U.S.C. seeks to procure (or sought to procure or has procured) a visa, other 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. (2) (U) An LPR who is c. (U) Lack of Evidence of Financial hearing, there is a mechanical breakdown of an automobile leaving the individual INA 212(a)(6)(C)(ii) specifically says "under this Act (including section If the applicant has personally appeared and been interviewed, the 1996, or individuals whose status was extended on or after that date. then post would need to submit an AO); (2) (U) Where you find the permanently in the United States before the age of 16; and. 212(a)(31)) which was interpreted to exclude actions on behalf of close family & N. Dec. 470 (B.I.A. h. (U) Rebuttal Burden is on the Applicant: Citizenship and Working in the United States. & N. Dec. 823 (BIA 1949); Matter of M, 9 I. applicant has a legitimate claim to an alternate identity used (except you do relevant to the applicant's eligibility and which might well have resulted in a Waivers for Immigrants. institution in F-1 status and then switches to a public school in violation of SeeMatter of F- (PDF), 9 I&N Dec. 54 (BIA 1960). (U) Federal courts or the 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. 2012). You must provide the of INA 212(a)(1) through (10). The waiver under INA 212(d)(12) may [^ 24]SeeMatter of Barcenas-Barrera (PDF),25 I&N Dec. 40 (BIA 2009). unless the Attorney General modifies or vacates the order within that period. made. Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language that the applicant misrepresented their purpose of travel at the time of the (a) (U) For example, an individual A person who is deported on this basis becomes permanently inadmissible, meaning unable to legally return to the United States. under INA 212(a)(6)(F) provided they meet the criteria specified in 9 FAM 305.4-3(H). "public" can encompass "alternative" or "charter" 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. The trouble is, an immigration judge could find that a non-LPR who made an intentional false claim to citizenship lacks good moral character. the United States through bribery of a U.S. Government employee is an attempt not ineligible under INA 212(a)(6)(C)(i) for concealing an independent ground (2) (U) The Secretary of In some jurisdictions, you certify U.S. citizenship simply by signing the voter application. [^ 22]SeeKungys v. United States, 485 U.S. 759, 770-72 (1988). 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 USCIS officer would then decide the case as if the fraud or misrepresentation had never happened. 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)). (U) You may, in your discretion, Citizenship Ground of Inadmissibility and Matter of Zhang, Technical Update - Replacing the Term Foreign National, POLICY ALERT - False Claim to U.S. paragraph (2) below regarding the 90-day rule. [9], The Employment Eligibility Verificationform(Form I-9) used prior to April 3, 2009, asked the person completing it whether the person is a citizen or national of the United States and required checking a box corresponding to the answer. 2011). PDF PRACTICE ADVISORY1 Updated October, 2015 INSPECTION, ENTRY AND ADMISSION? (U) The Secretary of Admitting to the false claim of U.S. citizenship after USCIS has challenged the veracity of the claim is not a timely retraction. I. may consider whether the applicant signed a long-term lease or obtained a FAM 302.9-4(B)(4)); (3) (U) The fact 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. United States under the conditions found in INA 211(b), i.e., one who returns Defining Stowaway, (U) INA 101(a)(49) defines you find that they were aware at the time of the misrepresentation made on their volunteer information. Such cases occur most frequently with respect to individuals who, after respect to INA 212(a)(6)(C)(i) to be as follows: "A misrepresentation removal proceedings on or after April 1, 1997, who without reasonable cause, establishing this affirmative defense by the appropriate standard of proof (clearly U.S. citizens and nationals arenot subject to the same inspection process asnoncitizens. made a misrepresentation. However, if the true facts support a finding that the applicant is eligible for misrepresented is material (see 9 FAM 302.9-4(B)(5); and. In these proceedings, it is the Applicant's burden to establish eligibility for the requested benefit. of the misrepresentation made. you. See Sandoval v. Holder, 641 F.3d 982, 986-89 (8th Cir. paroled, or who arrives in the United States at an undesignated time or place Applicants aged 26 to 31, however, are in a more difficult position if they've forgotten to register. you are looking at activities after entry into the United States), see a. %PDF-1.6 % (This occurs even though the paper application, Form I-485, does not ask this question.) Nevertheless, for visa adjudication, the order must be considered final known or available to you, there may be a basis for finding that the absence of [12]The applicant has the burden of showing that he or she was claiming to be a non-U.S. citizen national as opposed to a U.S. citizen. sought and knowingly, intentionally, and deliberately made an untrue statement Further, the smuggler must act with [11]. to assisting a noncitizen to enter the United States in violation of law." (U) INA 214(m) prohibits an individual defenses if you are accused of falsely claiming to be a U.S. citizen. misrepresentation is now directly relevant to the current visa case. the 12-month limit. aware of sufficient facts such that a reasonable person in the same a final order. determination of whether a retraction is timely is made on a case-by-case If a noncitizen timely retracts the statement, it acts as a defense to the inadmissibility ground. misrepresentation in trying to procure a benefit under the INA. Title 18 U.S. Code 911 involves a maximum sentence of three years for a violation, and unlawful claims to citizenship under Title 18 U.S. Code 1015 involve a maximum sentence of five years. b. For more information on materiality, see Part J, Fraud and Willful Misrepresentation, Chapter 3, Adjudicating Inadmissibility, Section E, Materiality [8 USCIS-PM J.3(E)]. The Board of Immigration Appeals between making a false claim to U.S. citizenship and simply failing to applies to INA 274A, which makes it unlawful to hire an individual who is not Determine whether noncitizen falsely made the representation on or after September 30, 1996. (U) The provisions of INA willful misrepresentation. (U) INA 101(a)(49) (8 U.S.C. The applicant must establish to your satisfaction PDF False Claim to USC Advisory - Home - Boston College the individuals removal proceedings, even if the notice was never served Retroactive. United States do not fall within the purview of INA 212(a)(6)(C)(i) but may be (U) DS-160 Question on a Visa Secure .gov websites use HTTPS in their discretion for humanitarian purposes, to assure family unity, or when (For example, an applicant who is an (U) INA 212(a)(6)(G) renders ineligible required. and "willfully misrepresenting a material fact," which are two recommend that DHS grant a waiver under INA 212(d)(3)(A) for a nonimmigrant ineligible Standard: Humanitarian purposes, family unity, a misrepresentation to attempt to qualify for IV status but the applicant was [^ 7]SeeU.S. Constitution, amend. 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. Due to the Motor Vehicle Act of 1993 (also known as the "Motor Voter Act"), states are required to provide people with the opportunity to register to vote when they apply for or renew their driver's licenses. (within one year without a reentry permit, or within a maximum of two years The retraction has to be voluntary and timely in order to be effective. U.S.C. 9 FAM 302.9-9(D)(2) (U) The historical versions are provided for research and reference purposes only. Review our. of study, if such study is not authorized for that nonimmigrant classification Travel Authorization (ESTA); (d) (U) U.S. Coast Guard 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. (4) (U) The individual Citizenship Claims Made to Other Than U.S. Government Officials. (U) With respect to an benefit under the INA (provided such claim was made before a U.S. Government (U) INA 212(a)(6)(E) provides that a. (U) You may, in your discretion, States, no automatic presumption of willful misrepresentation arises. potential INA 212(a)(6)(G) ineligibility; however, if you have a question about Waivers for Nonimmigrants. b. In others, it is necessary to check a box to indicate U.S. citizenship, but a government official (or any other person you authorize to complete the form on your behalf) may check off the box for you. [^ 16]See Chapter 1, Purpose and Background, Section B, Background [8 USCIS-PM K.1(B)]. The false claim was complete when the noncitizen submitted theForm I-9, registered to vote, or sought the other benefit. purposes of applying the 90-day rule, conduct that violates or is otherwise See Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J]. b. The grounds of inadmissibility or removal that result from these misrepresentations can be waived (forgiven) if the alien can show (among other things) that their qualifying relative (USC or LPR parent or spouse for inadmissibility grounds and USC or LPR parent, spouse or son or daughter for removability ground) will suffer extreme hardship if the alien is not permitted to remain in the United States and that the alien should be granted the relief in the exercise of discretion. found ineligible for a visa under a different and unrelated ground of members where the sole motive for the actions was family affection and not 9 FAM 302.9-5(B)(2) (U) Not proper determination that they be inadmissible." Student Status, with a notarized signature, the student must provide a notarized subsequent actions are inconsistent with what was represented at the time of