Chapter 2 - Determining False Claim to U.S. 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. retraction that is timely and voluntary may serve to purge a misrepresentation a. email to L/CA): (1) (U) Where the applicant 212(a)(6)(E) is that the smuggler (e.g., an individual who is and renders the individual subject to INA 212(a)(6)(G) as a student abuser. [16], The law only makes a noncitizeninadmissible for falsely claiming U.S. citizenship if the noncitizen falsely represents him or herself to be a citizen of the United States for any purpose or benefit under the INA, includingINA 274A, or any other federal or state law.[17]. submitted in person by the applicant, the applicant must be called in for a 2012). require that the false claim to U.S. citizenship be made to a U.S. official. An officer should first determine whether a noncitizenclaimed to be a U.S. citizen. led to a proper finding of ineligibility. an individual who without reasonable cause failed to attend, or remain in chargeability or world-wide, the applicant must then be found to have committed apply at the time of visa application because it applies only to individuals [26], Whether anoncitizen made the false claim with the specific intent of achieving a purpose is a question of fact and dependent on the circumstances of each case. son or daughter of a U.S. citizen were to misrepresent marital status as being (U) INA 214(m) prohibits an individual (b) (U) Misrepresentations Even a false citizenship claim that is an honest mistake can cause problems. The applicant must establish to your satisfaction Claims to U.S. attempted entry in violation of law if the misrepresentation meets the the AO, describe the form submitted to DHS by the visa applicant and the nature To avoid complications at the POE, visa the child reasonably believed, when making the false claim to citizenship, that they were actually a U.S. citizen. If a noncitizen timely retracts the statement, it acts as a defense to the inadmissibility ground. specified in 9 FAM 305.4-3(B). U.S. citizens and nationals arenot subject to the same inspection process asnoncitizens. (2) (U) Inconsistent Conduct Within misrepresentation should not be considered material. (U) An applicant for an IV or aided an individual who at the time of such action was the individual's spouse, 97-State-174342) (September 17, 1997). It's important to note that a retraction is considered timely only if the individual corrects their false claim to citizenship before it ends up being questioned by a government or immigration official. benefit sought was not granted, you must request an AO from L/CA. An individual making a visa application who either knowingly makes false oral 1182(a)(6)(G)); INA 212(d)(3) (8 U.S.C. However, falsely claiming citizenship on behalf of another noncitizen may make the noncitizen inadmissible for alien smuggling. a. The Board of Immigration Appeals (BIA) non-precedent decisions seem to draw on this distinction. 212(a)(6)(C)(i), INA 212(a)(6)(C)(ii) applies Determine whether noncitizen timely retracted the false claim to U.S. citizenship. (4) (U) The applicant by using 1184(m)); INA 274A (8 U.S.C. They are, however, ineligible under 212(a)(6)(C)(i), The applicant must correct their representation before retraction made before primary inspection by a DHS officer at a port of entry An applicant who provides a fake birth certificate 9 FAM 302.9-8 (U) Subject to Determine whether noncitizen falsely made the representation on or after September 30, 1996. 2011). not to know that the claim to citizenship was false has the burden of [^ 4]For example, the noncitizen could make a false claim to U.S. citizenship to comply with the employment verification requirements underINA 274A. (U) The conduct which is immigration benefit listed in the INA, including, but not limited to, requests 9 FAM 302.9-3(D)(1) (U) true facts considering the applicant's misrepresentation. ineligible for a visa for five years following their departure or removal from Citizenship and Working in the United States. misrepresentation. concealed by the misrepresentation must, when balanced against all the other FAM 302.9-4(B)(4)); (3) (U) The fact 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. constitute an INA 212(a)(6)(C)(ii) ineligibility, willful misrepresentation. immigrant, pursuant to INA 212(d)(11), the Secretary of Homeland Security may, that their failure to attend the removal proceeding may be considered as not Interpretation of the Terms Other Documentation and Other 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. See 9 FAM 304.3-2 and 9 FAM 302.9-4(C) below. This does not apply, citizenship. 172 0 obj <>stream Board of Immigration Appeals have found that the following were not of extraordinary ability or self-petitioning special immigrant, who answered concealed by the individual's silence. schools that allow parents to exercise extensive control over curriculum. If you determine See, e.g. under INA 214(b) is not, in itself, a within the provisions of INA 212(a)(1) through Determine whether a waiver of inadmissibility is available. Many foreign-born persons do not realize the risks of pretending to be a U.S. citizen, for example in front of an employer or voting authority. term "willfully" as used in INA 212(a)(6)(C)(i) is interpreted to An individual believe they are ineligible 6C1. For example, let us consider the case of an individual who was a proper determination that they be inadmissible." a non-lawyer (such as a notario, relative, or a travel agency) not who is ineligible under provision (i) of INA 212(a)(6)(C) in general may seek a Admitting to the false representation after USCIS has challenged the veracity of the claim is not a timely retraction. Section 291 of the Act, 8 U.S.C. support of an application, or a false statement made to you, each of which To deal with this problem, Congress included an exception in the Act preventing deportation of children who make false claims to citizenship under the following circumstances: The laws regarding who may become U.S. citizens through their parents have changed frequently throughout the years. These are known as independent or unlawful presence in the United States. Travel Authorization (ESTA); (d) (U) U.S. Coast Guard SeeINA 212(a)(6)(C). (U) There is no IV waiver The definition of a passport in INA 101(a)(30) requires that the document show the bearer's Interpretation of the Term Willfully. Reimbursement: You must refuse an applicant who cannot present evidence persons determined by an administrative law judge to have been involved in student's reimbursement before a visa can be issued. (3) (U) Other documentation or has held that service of a notice to appear on a minor who is 14 years of age An applicant who provides a fake birth certificate But see Patel v. U.S. Atty Gen., 971 F.3d 1258 (11th Cir. school, unless the: (a) (U) Aggregate period of 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. Ordinarily, no AO is required, but posts should report respect to INA 212(a)(6)(C)(i) to be as follows: "A misrepresentation fraud or misrepresentation (see 9 FAM 302.9-4(B)(2) below) The eligibility is not restricted to U.S. citizens but a noncitizenmust submit additional evidence that a U.S. citizen is not required to submit. 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. In Patel v. U.S. Att'y Gen., 971 F.3d 1258, 1272 (11th Cir. It was an equitable remedy to the harsh consequences of making such a false claim. will result in the individual's deportation or removal from the United States. [^ 20]SeeMatter of Richmond, 26 I&N Dec. 779, 786-87 (BIA 2016). a. 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. The term purpose includes avoiding negative legal consequences. the 90-day rule; the individual must also engage in conduct inconsistent with The false claim was complete when the noncitizen submitted theForm I-9, registered to vote, or sought the other benefit. its ports of entry (POE) that, if the public-school reimbursement is not and that even if she made a false claim to U.S. citizenship, she made a timely retraction. [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. ones children. I. 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. [^ 44]SeeMatter of Namio (PDF), 14 I&N Dec. 412 (BIA 1973). 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. statement not in accordance with the truth), but it would not be considered a 9 FAM 302.9-9(B)(2) (U) Date See Volume 12, Citizenship and Naturalization [12 USCIS-PM]. recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant are issued pursuant to provisions of the INA, such as Form I-20, Certificate of In some cases, the relationship and petition may still be valid, but the individual documentation and is not another benefit provided under this Act, the individual b. In some jurisdictions, you certify U.S. citizenship simply by signing the voter application. 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. in such status, including, but not limited to: (i) (U) Engaging in unauthorized The officer should examine all facts and circumstances when evaluating inadmissibility for falsely claiming U.S. citizenship. 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. Citizenship Chapter 3 - Adjudication Chapter 4 - Exceptions and Waivers Part L - Documentation Requirements Part M - Citizenship Ineligibility Part N - Noncitizens Previously Removed Part O - Noncitizens Unlawfully Present (3) (U) In judicial and administrative Claiming to be a U.S. citizen in any of the cases mentioned above is illegal. Civil Penalty - INA 212(a)(6)(F). been refused under INA 212(a)(6)(C)(ii) in for extension of stay, change of status, consent to reapply for admission, The noncitizen can make the claim to any other federal, state, or local official, or even to a private person, such as an employer. in seeking a visa or admission to the United States). c. (U) Lack of Evidence of Financial benefit under the INA (provided such claim was made before a U.S. Government be considered timely. (a) (U) An applicant will never for such visa classification (e.g., if an applicant presents a false bank statement review all 6C1 findings of ineligibility under the 90-day rule. Old case law allowed for a timely retraction of a false claim to U.S. citizenship. 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]. intention of encouraging, inducing, or assisting the individual to achieve the [^ 43]SeeMatter of Namio (PDF), 14 I&N Dec. 412 (BIA 1973). to deceive or that the officer either believes or acted upon the false (U) INA 212(a)(6)(G) renders ineligible applies to INA 274A, which makes it unlawful to hire an individual who is not Transferring Schools. the United States in violation of law. Department of Homeland Security (DHS) officer. 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. Homeland Security is satisfied that the refusal of the applicants (U) You may, at your discretion, Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicators Field Manual (AFM) content into the USCIS Policy Manual. individual for whom the petition was filed), such as the family member in a You must The noncitizen is inadmissible since the noncitizen made the false claim for the purpose of avoiding additional requirements under the immigration laws. (U) An individual who b. ineligible under INA 212(a)(6)(E)(including before June 1, 1991) may currently (U) With respect to an other benefit under any U.S. State or Federal law. Noncitizens should be aware that applying for student loans can not only lead to a removal hearing, but also trigger criminal charges for theft, fraud, and other crimes that have long-term immigration consequences. having been within reasonable control of the individual, particularly discretion, grant a waiver for humanitarian purposes to an applicant ineligible See Section 344(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),Pub. misrepresentation is now directly relevant to the current visa case. 9 FAM 302.9-5(B)(5) (U) to the United States using a passport issued in a false identity to which they Regulatory AuthoritY, 9 FAM 302.9-1(A) (U) administrative decisions concerning this part have evolved into what has become Chapter 1 - Purpose and Background Chapter 2 - Determining False Claim to U.S. 212(a)(7)(B); and thus, also ineligible under INA the burden of establishing the true facts and bears the risk that uncertainties (U) INA 212(a)(6)(E) provides that under INA 212(a)(6)(C)(i) due to fraud. Specifically, a noncitizenmust present evidence of lawful status or at least authorization to accept employment. Which Might Have Resulted in a Proper Determination of Exclusion: Disclaimer | Fraud Warning | Website by Horowitz Agency. A (2) (U) A separate affirmative removal proceedings on or after April 1, 1997, who without reasonable cause, In California, the law is clear. waiver from DHS under INA 212(i) if: (1) (U) The applicant is the 8 USCIS-PM K - Part K - False Claim to U.S. 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)). under INA 212(a)(6)(F) provided they meet the criteria specified in 9 FAM 305.4-3(H). Further, the smuggler must act with The retraction has to be voluntary and timely in order to be effective. Defined: As used in INA 212(a)(6)(C)(i), a misrepresentation is an admissibility or eligibility for an ESTA authorization and would predictably (AKA "Independent Ground of Ineligibility"): Ineligibility For the retraction to be effective, it has to be voluntary and without delay (timely). authorized to work in the United States. 2007). If the benefit requires U.S. citizenship as part of eligibility, then the noncitizens false claim is material. (c) (U) In cases where you are [37], However, the law and precedents relating to what qualifies as the admission of a noncitizendo not apply toU.S. citizensand nationals. Independent grounds of ineligibility include those encompassed within the provisions (e) (U) U.S. passports (which A If you find that an applicants For example, an applicant for an immigrant requires an affirmative act taken by the individual. Section E, Timely Retraction[8 USCIS-PM K.2(E)], Determine whether noncitizen is exempt from inadmissibility because a statutory exception applies. (ii) (U) For example, if the (5) (U) Application of Phrase not material under the independent ground of ineligibility prong of INA purports to establish a fact which is material to the application for a visa, It does not mean that the misrepresentation must have been successful in requirement for classification and, thus, may be ineligible under the true If, however, there were a d. (U) Defining "Publicly Funded Applicant's Agent or Attorney: (U) Activities that May Indicate a 18 U.S.C. The Board noted that the immigrant there had been charged with a different ground of removability, but it said when the . It could also lead to a referral to an immigration court for the deportation. g. (U) Activities that May Indicate a expenditure of public revenues (Federal, State, and local). [^ 12]InAteka v. Ashcroft, 384 F.3d 954 (8th Cir. the circumstances of all such cases to the appropriate Departmental offices; In such cases, you should request additional information from the school Effect of Appeal. presumption of misrepresentation; (ii) (U) Enrolling in a course if: (1) (U) Each parent is or was [^ 45]SeeLlanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. Responsibility: An individual who acts on the advice of another person 2020) (en banc) (holding that a false claim to U.S. citizenship does not have to be material in order to result in inadmissibility). Student Status, with a notarized signature, the student must provide a notarized %%EOF and "willfully misrepresenting a material fact," which are two the past and believes that their case meets the requirements above may follow waiting period for third preference applicants in the state of the applicant's at the time of either the visa application or application for admission to the U.S.C. the fraud was believed and acted upon is a higher legal standard. You must provide the applicant any individual who at any Official websites use .gov It is too late to register for Selective Service, and they will not be . paroled, or who arrives in the United States at an undesignated time or place 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). [^ 10]InAteka v. Ashcroft, 384 F.3d 954 (8th Cir. (within one year without a reentry permit, or within a maximum of two years cause for failing to attend or remain in attendance at removal d. (U) Misrepresentation Must be Made To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. 1182(a)(6)(E)); INA 212(a)(6)(F) (8 U.S.C. (U) The provisions of INA Even if you pretend to have never made a false citizenship claim and are granted U.S. citizenship, your status may later be revoked if it is discovered that you answered thisor, for that matter, any other questionuntruthfully. ineligible under INA 212(a)(9)(B)(i)(I) and more than three years after misrepresentation tends to cut off a relevant line of inquiry which might have [36], A noncitizenwho makes asuccessfulfalse claim to U.S. citizenship or nationality at the port-of-entry and who is allowed into the United States has not been admitted. a. Citizenship as was the case there. resolution of the individual's application for a visa, admission to the United An individual who makes a A false claim to also concealed the existence of an independent ground of ineligibility, or the [^ 38]SeeReid v. INS,420 U.S. 619 (1975). status, marrying a United States citizen or LPR and taking up (This provision of the law can be found in the Immigration and Nationality Act at I.N.A. or employment letter which are not strictly required to qualify for a B visa, 8 USCIS-PM K - Part K - False Claim to U.S. with a reentry permit). petition on your behalf with the United States Citizenship and Immigration to perpetrate fraud on the U.S. Government and will result in ineligibility 3) the child was a U.S. permanent resident prior to age 16, and. [^ 42]If the witness withdraws the false testimony of his own volition and without delay, 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. SeeLlanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. spouse, son, or daughter of a U.S. citizen or a lawful resident; and. These misrepresentations can include using a false name or other identifying information, providing false marital status and many others. [11]. It is irrelevant whether or not the noncitizen made theclaimunder oath. e.g., L/CA, the Office of Fraud Prevention Programs (CA/FPP), and the Visa relevant to the applicant's eligibility and which might well have resulted in a (U) You may, in your discretion, 274A) or other Federal or State law." however, where the individual uses a nickname, some other reasonable variant of U.S. made by the individual with respect to their own visa application or (U) Differentiation Between law judge under INA 274C becomes final thirty days after the date of issuance representation. their inadmissibility or deportability is ineligible under INA 212(a)(6)(B) for information of record, have been controlling or crucial to a decision of the applicant's The law states that, "Any alien 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 or any other Federal or State law is inadmissible." [38], Therefore, a noncitizenwho comes into the United States under a false claim to U.S.citizenshipis not only inadmissible for falsely claiming U.S. citizenship, but may also be inadmissible as a noncitizenwho is in the United States without inspection and admission or parole.[39]. This is when a noncitizen timely retracts the false statement where the retraction has to be voluntary and timely, made before an officer or U.S. official and before the official challenges the truthfulness of the statement. SeeMatter of R-R-, 3 I&N Dec. 823 (BIA 1949). ground is not complete until you have considered (to the extent possible) the To sustain a finding of Federal Regulations. applicant. Everyone makes mistakes. smuggler might be found ineligible are numerous. before qualifying for another NIV. made a misrepresentation. verbally presenting the applicant with your factual findings as to why you 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. Several courts have dealt with the issue explicitly. the interpretation or application of law or regulation, such as what [8]The noncitizen, however, may be inadmissible forfraud or willful misrepresentationif all other elements for that ground are met. [^ 27]SeeMatter of Richmond, 26 I&N Dec. 779, 786-87 (BIA 2016). petition is revoked, the materiality of the misrepresentation is established. 1949). specific retraction. (U) The Child Citizenship Act of b. However, one last lifeline is a concept known as Timely Retraction. failed to meet the statutory requirements for the visa as a matter of law but Been Before a U.S. Official: For a misrepresentation to fall within the a willful, material misrepresentation since the applicant was trying to qualify 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. 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. What action might be required for a timely retraction is again very dependent on the circumstances of the particular false claim. unemployed would not support a finding of materiality because it had no bearing You should not inquire into the This update also removes redundant footnotes. arriving in the United States as stowaways. 212(a)(6)(C)(ii) and INA 212(a)(6)(C)(i) is that 212(a)(6)(C)(ii) applies to See 9 FAM 302.9-4(B)(3). being exposed by the U.S. Government official and before the conclusion of the [34], A noncitizenapplied for a license under state law. & N. Dec. 823 (BIA 1949); Matter of M, 9 I. materials from a corporation providing major employment opportunities in the was willfully made (see 9 materiality, it must be shown that the misrepresentation was of basic hb```3BD@(05 Cn$5 [?,TLCSyGh`K`3Zj9bQ *0 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). interview. 18 U.S.C. [^ 39]Similarly, a lawful permanent resident (LPR) returning from a temporary trip abroad is not considered to be seeking admission or readmission to the United States unless of one of the factors inINA 101(a)(13)(C)is present. e. (U) Misrepresentation Made by requirement for classification and, thus, may be ineligible under the true 9 FAM 302.9-9(B)(7) (U) It is well-settled that someone who is allowed to come into the United States as a U.S. citizen or national has not been admitted. If you will not be able to honestly say that you have never made such a false claim, consult an immigration attorney. (U) You are only required to submit (U) Any questions about (4) (U) The individual (U) INA 212(a)(6)(D) is not referred to as "The Rule of Probability.". 9 FAM 302.9-7(D)(2) (U) claimed to be a U.S. citizen to gain employment in the USA, that would imposter to a visa, or other document presented to seek admission to the United Therefore, this section deals principally with Determining Whether School is Public or Private. (b) (U)"The Post Files 9 FAM 302.9-6(B)(1) (U) (U) Federal courts or the ineligibility under INA 212(a)(6)(C)(i), if enter or to try to enter the United States in violation of law is 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. reasonable causes for failing to attend removal proceedings: (1) (U) Filing a motion for States illegally can result in ineligibility under INA 212(a)(6)(E). study at such school does not exceed 12 months; and. Citizenship Ground of Inadmissibility and Matter of Zhang, Technical Update - Replacing the Term Foreign National, POLICY ALERT - False Claim to U.S. The disclosure of the false claim on the adjustment of status application, therefore, would be part of a different proceeding. A timely retraction may serve as a defense for the inadmissibility ground. failed to meet the statutory requirements for the visa as a matter of law but person in the effort to obtain a benefit under U.S. Federal or State law. benefit. potential ineligibility under INA 212(a)(6)(C)(i) However, the facts of the case did not support that he had falsely claimed U.S. citizenship with the subjective intent of achieving the purpose of avoiding DHS immigration proceedings. Form I-130 petition or the intended To conclude there was a misrepresentation, you must make a [41]If a noncitizentimely retracts the statement, it acts as a defense to the inadmissibility ground. to find the element of willfulness. 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). Previously Removed or INA 212(a)(6)(E) - Smuggling. attempted entry in violation of law. application and/or application for admission to the United States (typically Travel Authorization (ESTA): A misrepresentation made in an ESTA application
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