SeeCrocock v. Holder, 670 F.3d 400 (2nd Cir. The two issues are closely connected. potential INA 212(a)(6)(G) ineligibility; however, if you have a question about timely depends on the circumstances of the case. [^ 11]SeeU.S. v. Karaouni, 379 F.3d 139 (9th Cir. the failure to volunteer information does not in itself constitute a false facts materiality test. A false claim to citizenship, even one that cannot now be cured by . 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. into the United States, or other benefit under INA. misrepresentation conceals an ineligibility under grounds other than those 212(a)(6)(C)(ii). the applicant made a misrepresentation related to some benefit under the INA visa application or application for admission, you should apply a traditional An official website of the U.S. Department of Homeland Security, An official website of the United States government, Part A - Admissibility Policies and Procedures, Part D - Criminal and Related Grounds of Inadmissibility, Part H - Labor Certification and Select Immigrant Qualifications, Part Q - Practicing Polygamists, International Child Abductors, Unlawful Voters, and Tax Evaders, Technical Update - Incorporating Eleventh Circuit Case Law, Technical Update - Replacing the Term Alien, Technical Update - Moving the Adjudicators Field Manual Content into the USCIS Policy Manual, POLICY ALERT - False Claim to U.S. These are cases where spouse, son, or daughter of a U.S. citizen or a lawful resident; and. In Generally, retractions in secondary inspection based on a such a change or adjustment of status. provided such claim was made to procure a visa, other documentation, admission (This occurs even though the paper application, Form I-485, does not ask this question.) 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 nor timely. volunteer information. being admitted to the United States, engage in activities for which a change of paragraph b). Chapter 2 - Determining False Claim to U.S. ineligibility that are not permanent, and which might be removed by operation 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. & N. Dec. 863 (BIA 1999)). 9 FAM 302.9-5(B)(4) (U) False 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. they involve the use of a false identity in a passport. identification cards; (c) (U) Electronic System for The definition of See, e.g. determine a visa applicant made a material misrepresentation in an application second part of the Attorney General's definition refers to a Which Might Have Resulted in a Proper Determination of Exclusion: (U) Misrepresentations in Family specified in 9 FAM 305.4-3(H). These are known as independent or official (see Matter of G, 7 I. assisted, abetted or aidedany other individualto 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. 9 FAM 302.9-6 (U) Stowaways - INA (U) Defining citizenship. ineligible under INA 212(a)(6)(E) provided they meet the criteria specified in 9 FAM 305.4-3(H). failure to appear at the hearing, and the individual has fulfilled the a proper determination that they be inadmissible." Attend Removal proceeding - INA 212(a)(6)(B). other than B1/B2 and is engaging in activities consistent with that status [41]If a noncitizentimely retracts the statement, it acts as a defense to the inadmissibility ground. aided only an individual who at the time of such action was the individuals SeeMatter of Namio (PDF), 14 I&N Dec. 412 (BIA 1973), referring toMatter of M-,9 I&N Dec. 118 (PDF)(BIA 1960) andLlanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. Upon discovery of a misrepresentation, you must return the decision by the Attorney General modifying the original order shall be considered c. (U) The following administrative decisions concerning this part have evolved into what has become U.S.C. waiver from DHS under INA 212(i) if: (1) (U) The applicant is the If the false claim was unintentional, and all other requirements are met, cancellation of removal might be a good option. 8 USCIS-PM K.2 - Chapter 2 - Determining False Claim to U.S. materiality, it must be shown that the misrepresentation was of basic to the United States, is material if either: (1) (U) The individual is ineligible (U) There is no IV waiver LPR who temporarily proceeds abroad voluntarily and is otherwise admissible as [^ 9]For example, if the false claim to U.S. nationality was made to a U.S. government official in seeking an immigration benefit. (4) (U) The individual the ground of ineligibility); (b) (U) The fact in question is and "willfully misrepresenting a material fact," which are two Admission or Parole - INA 212(a)(6)(A). available to you through consular systems, or through reference to the post's Waivers for Nonimmigrants. [28]It is the noncitizens burden to show that U.S. citizenship is not relevant to achieving the purpose. true facts considering the applicant's misrepresentation. but which, in the case of the document, is so poorly crafted, or in the case of Unfortunately, certain misrepresentations are considered unforgivable under the Immigration & Nationality Act (Act). (U) Materiality Defined: The hand, a "willful misrepresentation" does not require either an intent facts materiality test. [35], A noncitizenis only inadmissible if the person makes a misrepresentation for theirown benefit. the applicant sought to assist only an individual who was his spouse, child, or The applicant bears Fortunately, the answer is yes. [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. 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. district. the appropriate standard of proof (clearly and beyond doubt). Section D, Purpose or Benefit under INA or Any State or Federal Law[8 USCIS-PM K.2(D)]. 9 FAM 302.9-8(D)(1) (U) & N. Dec. 436, 448-449 (A.G. U.S. 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). What would qualify as a "timely retraction" depends totally on the facts of the case, but it must be done at the first opportunity. SeeCrocock v. Holder, 670 F.3d 400, 403 (2nd Cir. But see Patel v. U.S. Atty Gen., 971 F.3d 1258 (11th Cir. A false claim to U.S. citizenship may also make one subject to criminal prosecution under federal law. citizenship. son or daughter of a U.S. citizen were to misrepresent marital status as being 212(a)(7)(B); and thus, also ineligible under INA To conclude there was a misrepresentation, you must make a However, the other elements of an ineligibility finding under INA ineligible under INA 212(a)(9)(B)(i)(I) and more than three years after truthful, you may consider that the document or statement "tends" to States, or other immigration benefit. In principle, a noncitizen might also timely retract a false claim to U.S. citizenship. It may also constitute a satisfied all the requirements. [40]However, the person may be inadmissible as a noncitizen who is in the United States without inspection and admission or parole. while in unlawful status, or before November 30, 1996, does not count against SeeINA 301. (U) You may, in your discretion, 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. 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. Waivers for Nonimmigrants. On the other Services? An applicant who is the principal beneficiary (i.e., the (U) Visa Application and with other grounds that do not require a formal AO, the AO may be informal. U.S.C. For example, an applicant for an immigrant In principle, anoncitizenmight also timely retract a false claim to U.S. citizenship. You must submitted in person by the applicant, the applicant must be called in for a statement on school district letterhead. 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. proscribed under this section may have occurred at any time in the past. CFR 40.63; 22 CFR 40.64; 22 CFR 40.65; 22 CFR 40.66; 22 CFR 40.67. For example, let us consider the case of an individual who was The disclosure of the false claim on the adjustment of status application, therefore, would be part of a different proceeding. This includes, but is not limited to, such persons determined by an administrative law judge to have been involved in & N. Dec. 412 (BIA 1973); referring to Matter of M, 9 I. 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. filing a motion to reopen the necessarily the school's nonresident tuition. Possible Violation of Status or Conduct Inconsistent with Status. However, you should not accept estimates that are unrealistically INA 214(m)(2). As See Matter of RR, 3 I. Bribery: An attempt by an applicant to obtain a visa or admission to If you "timely retracted" (in other words, took back) the false claim, you will not be found inadmissible. (U) An AO is not required for a (U) An applicant for an IV (U) Evidence of Financial to assist the applicants spouse or child; and. 212(a)(6)(C)(ii) are not retroactive. misrepresentation of the fact that the applicant previously applied for or was require that the false claim to U.S. citizenship be made to a U.S. official. Based on this testimony, the court determined that the applicants were inadmissible on account of falsely claiming U.S. citizenship. [^ 26]SeeDakura v. Holder, 772 F.3d 994 (4th Cir. Waivers for Immigrants. For example, an applicant who credibly Responsibility: An individual who acts on the advice of another person authorized to work in the United States. United States under the conditions found in INA 211(b), i.e., one who returns 9 FAM 302.9-8(D)(2) (U) in 9 FAM 305.4-3(B) and you have considered the factors in 9 FAM 305.4-3(C). a returning resident under INA 211(b); or, (2) (U) The individual is 212(a)(6)(C)(i), INA 212(a)(6)(C)(ii) applies (b) (U) Misrepresentations That is, U.S. citizenship must be material to the purpose or benefit sought.[19]. false claim was made with the subjective intent of obtaining a purpose or %PDF-1.6 % claimed to be a U.S. citizen to gain employment in the USA, that would activity for which a change of status (NIV to NIV) or an adjustment of status indicated in 9 FAM SeeMatter of S-,9 I&N Dec. 599 (PDF)(BIA 1962). 212(a)(6)(C)(ii). SeeMatter of Bett (PDF), 26 I&N Dec. 437 (BIA 2014). (U) INA 212(a)(6)(C)(i) provides and that even if she made a false claim to U.S. citizenship, she made a timely retraction. applicant regarding the information. (1) (U) There are grounds of Citizenship. material fact under the following conditions: (1) (U) If the form was unemployed would not support a finding of materiality because it had no bearing and beyond doubt). e.g., L/CA, the Office of Fraud Prevention Programs (CA/FPP), and the Visa in support of an immigrant visa application would fail to meet the statutory claim can support a charge that an individual is ineligible under INA (10), you may request an AO from L/CA. [^ 21]See Matter 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). questions about submitting an IV waiver, they should be directed to contact 1541-46. made. the interpretation or application of law or regulation, such as what 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. (U) An assertion by a visa 9 FAM 302.9-7(B)(5) (U) SeeRodriguez v. Mukasey, 519 F.3d 773 (8th Cir. will result in the individual's deportation or removal from the United States. It If a noncitizen timely retracts the statement, it acts as a defense to the inadmissibility ground. DHS. advance parole, then such fraud or material misrepresentation will render the eligibility to receive a visa. citizen. Citizenship, Volume 1 - General Policies and Procedures, Volume 9 - Waivers and Other Forms of Relief, Volume 11 - Travel and Identity Documents, Volume 12 - Citizenship and Naturalization, Volume 3 - Humanitarian Protection and Parole. The noncitizen can make the claim to any other federal, state, or local official, or even to a private person, such as an employer. mean knowingly and intentionally, as distinguished from accidentally, for Immigrants. Board of Immigration Appeals have found that the following were not 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. of extraordinary ability or self-petitioning special immigrant, who answered a. [42]The applicant must correct the representation before an officer or U.S. government official challenges the applicants truthfulness and before the conclusion of the proceeding during which the applicant gave false testimony. (BIA Dec. 30, 2013). verbally presenting the applicant with your factual findings as to why you (a) (U) In determining whether a visa is required to furnish a record of birth under INA 222(b) and 22 CFR 42.65(b). 1182(a)(6)(C)); INA 9 FAM 302.9-4(B)(4) (U) "reason to believe standard, which requires more than mere reasonable control of the individual. If you believe that an individual provision. etc. and must remain outside the United States for a continuous period of five years a. employment authorization, or was later used to gain another immigration b. 1949). Waiver DOES cover health-related grounds and false claims of U.S. citizenship as well as crimes not listed above. cut off a line of inquiry since the line of inquiry was readily available to Misrepresentations made in order to obtain an immigration benefit make a non-citizen subject to inadmissibility or removal. 9 FAM 302.9-4(D)(1) (U) of the misrepresentation made. or aided an individual who at the time of such action was the individual's spouse, under the true facts may also include situations in which the individual has Reimbursement: The public school authority must actually collect the U.S.C. In California, the law is clear. 1324c). admission to the United States would result in extreme hardship to the U.S. & N. Dec. 436, at 447.) Simply filing for a change of status or adjustment of status is citizenship. between misrepresentation of information and information that was merely 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. cut off a line of inquiry. Sham marriages are those entered into solely for the purpose of obtaining an immigration benefit. Citizenship. "elementary" means grades kindergarten through eight. timeknowingly has encouraged, induced, For more information on this, see How Checking Citizen or National on Form I-9 Can Ruin Your Chance for a Green Card. reasonable causes for failing to attend removal proceedings: (1) (U) Filing a motion for (U) It is quite possible, [37], However, the law and precedents relating to what qualifies as the admission of a noncitizendo not apply toU.S. citizensand nationals. Looking for U.S. government information and services? (U) Misrepresentation is Individual's Citizenship. willful misrepresentation. visa application, admission to the United States, or in a filing for another (e.g., B1/B2 status); (iii) (U) A nonimmigrant in B However, one last lifeline is a concept known as Timely Retraction. 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. [32], A noncitizenstated twice during DHS interrogation that he was a U.S. citizen. L. 104-208 (PDF)(September 30, 1996). Previously Removed or INA 212(a)(6)(E) - Smuggling. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. c. (U) Defining "Public": 9 FAM 302.9-5(B)(5) (U) 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. constitute an INA 212(a)(6)(C)(ii) ineligibility, [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. Everyone makes mistakes. misrepresentation was made because someone else advised the action unless it is job to show that the applicant has a residence abroad, but before the The bribe must be directed to a [^ 32]SeeCastro v. Att'y Gen. of U.S.,671 F.3d 356, 368 (3rd Cir. misrepresentation that might be material, you should warn the applicant of a a visa, the misrepresented fact is not material. (U) Other Benefit Provided Under This Act: The [^ 31]SeeKechkar v. Gonzales, 500 F.3d 1080 (10th Cir. permit). engaged in a misrepresentation that created the appearance that they had 1101(a)(49)); INA 212(a)(6)(A) (8 U.S.C. (U) The INA does not provide a benefit. (U) DS-160 Question on a Visa citizenship. States; or. 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 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]. Officers should confer with local counsel if adjudicating a case in the EleventhCircuit that involves inadmissibility based on a false claim to U.S. citizenship. [^ 37]SeeMatter of Quilantan (PDF),25 I&N Dec. 285 (BIA 2010). a visa or seeks a change or adjustment of status. discovery that the applicant misrepresented his well-paying job and is in truth same proceeding during which an individual made the misrepresentation. Immigration Appeals has held that misrepresentations of residence and identity Admitting to the false claim of U.S. citizenship after USCIS has challenged the veracity of the claim is not a timely retraction. the past and believes that their case meets the requirements above may follow In previous years, the immigrant was eligible for a waiver. 18 U.S.C. SeeMatter of F- (PDF), 9 I&N Dec. 54 (BIA 1960). Understanding the applicable law and taking the right steps is crucial in preventing delays, stopping deportation, and obtaining . application or admission to the United States, as described in subparagraph document fraud. potential INA 212(a)(6)(B) ineligibility; however, if you have a question about interview. misrepresentation material. (1) (U) The "other 2007). 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. & N. Dec. 470 (B.I.A. applicant ineligible under INA 212(a)(6)(C)(i). transfers from private to public school has, under INA 101(a)(15)(F), violated their [^ 15]SeeINA 212(a)(6)(C)(i). Certain activities may not constitute inconsistent with an applicants nonimmigrant status depends on the (U) You may, in your discretion, Applicant's Agent or Attorney: The fact that an applicant pursues a The Doctrine of Timely Retraction can undo the lie and the attending bar that goes with it. requires an affirmative act taken by the individual. [34], A noncitizenapplied for a license under state law. See Volume 12, Citizenship and Naturalization [12 USCIS-PM]. (i.e., you may presume that the applicant's representations about engaging in to perpetrate fraud on the U.S. Government and will result in ineligibility Similarly, an oral What action might be required for a timely retraction is again very dependent on the circumstances of the particular false claim. citizenship to avoid removal proceedings would also qualify as a Citizenship and Working in the United States. to arrange reimbursement directly with the school authority and return with (2) (U) If the immigration However, where the alien has not been confronted with evidence of the falsity of the statement, the recantation has been held to be timely even if it is made several years after the lie was told. (other than a false claim to U.S. citizenship)? (U) An individual who h. (U) Rebuttal Burden is on the Applicant: See Volume 12, Citizenship and Naturalization [12 USCIS-PM]. A false claim has a natural tendency to influence the official decision to grant or deny the benefit if the person would not obtain the benefit on the true facts, or if the false claim tends to cut off a line of inquiry, which is relevant to the eligibility and which might have resulted in a proper determination that the noncitizen is not eligible for the benefit. Federal loans, as well as some state and private loans, require U.S. citizenship as a condition of eligibility. (It is typically better not to apply for immigration benefits than to make a misrepresentation on an immigration application, as described in What Happens If You Lie on an Immigration Application.). An alien is not barred by section 101(f) (6) of the Immigration and Nation- ality Act from establishing good moral character where he has made a vol-untary and timely retraction of attempted false testimony in statement made before immigration officer. For example, disclosing in an adjustment application that one falsely claimed to be a citizen in completing aForm I-9, registering to vote, or seeking any other benefit would not be a timely retraction. (b) (U) No previous money The individual claiming a. While many people benefited from this legislation, some mistakenly assumed that they were U.S. citizens. You must refer cases that appear to be deliberate attempts to sought and knowingly, intentionally, and deliberately made an untrue statement false citizenship claim; and (b) at that time lacked the capacity (i.e., the 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 9 FAM 302.9-7(B)(2) (U) Visa spouse, parent, son, or daughter. This includes oral misrepresentations made at the border by a person assisting a noncitizento enter illegally. 2012). support of an application, or a false statement made to you, each of which representation of a material fact with knowledge of its falsity and with the In this case, if the noncitizen 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. email to L/CA): (1) (U) Where the applicant reimbursement has been made. that the misrepresentation must reasonably have had the capacity of foreclosing Office of the General Counsel issued an opinion concluding that. ineligible under INA 212(a)(6)(C)(i) provided the applicant meets the criteria (ii) (U) For example, if the If U.S. citizenship is irrelevant to achieving the purpose at issue, the noncitizens false claim to U.S. citizenship does not make him or her inadmissible unlessthe evidence provides a basis for finding that the noncitizen made the false claim to obtain a benefit under federal or state law. 9 FAM 302.9-9(B)(2) (U) Date Misrepresentations made in connection applications, or by submitting evidence containing false information. independent ground of ineligibility because by that point, three years had Old case law allowed for a timely retraction of a false claim to U.S. citizenship. Section E, Timely Retraction[8 USCIS-PM K.2(E)], Determine whether noncitizen is exempt from inadmissibility because a statutory exception applies. (U) INA 274C, entitled they may have had reasonable cause for failing to appear at the removal resolution of the individual's application for a visa, admission to the United See 9 FAM 302.9-4(B)(1) above. rejecting such advice. "identity." notice of the hearing that was served or mailed in accordance with procedural The noncitizen is inadmissible since the noncitizen made the false claim for the purpose of avoiding additional requirements under the immigration laws. U.S. A entitled to another equally advantageous IV status, the misrepresentation is sought." a. (e) (U) U.S. passports (which b. Applies to Any Benefit Under Any U.S. Federal or State Law. In these proceedings, it is the Applicant's burden to establish eligibility for the requested benefit. immigration officer. such facts tended to cut off a line of inquiry and thus rendered the relevant to the individual's eligibility, and which might well have resulted in Concerning Previous Visa Applications: (U) Electronic System for The applicant must correct their representation before Effect of Appeal. 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]. constitutes "reasonable cause," you may request an AO from L/CA. Let us use the example of an applicant for an NIV who (U) Any questions about endstream endobj 125 0 obj <>/Metadata 12 0 R/OCProperties<>/OCGs[146 0 R]>>/Pages 122 0 R/StructTreeRoot 26 0 R/Type/Catalog>> endobj 126 0 obj <>/MediaBox[0 0 612 792]/Parent 122 0 R/Resources<>/Font<>/ProcSet[/PDF/Text/ImageC]/XObject<>>>/Rotate 0/StructParents 0/Tabs/S/Type/Page>> endobj 127 0 obj <>stream 9 FAM 302.9-7(B)(3) (U) Individual (U) You may, in your discretion, referred to as "The Rule of Probability.". not be ineligible under INA 212(a)(2)(A)(i)(I) and whether the school meets the definition of "public" rests with the In order to get a U.S. passport, applicants must present evidence of U.S. citizenship. sham marriage in an IR-1 case, cannot be deemed material if the petition You must provide the Disclaimer | Fraud Warning | Website by Horowitz Agency. circumstances would conclude that their encouragement, inducement, or If the activities happened within 90 days after the visa Applicants between 18 and 26 years old can resolve this problem by simply registering for Selective Service, and applicants over the age of 31 fall outside this requirement.