Determine whether noncitizen timely retracted the false claim to U.S. citizenship. 144 0 obj
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applicants behalf does not serve to insulate the applicant from
The Doctrine of Timely Retraction can undo the lie and the attending bar that goes with it. 2007). SeeMatter of M-R, 6 I&N Dec. 259, 260 (BIA 1954). 9 FAM 302.9-9(B)(5) (U)
(U) An AO is not required for a
[37], However, the law and precedents relating to what qualifies as the admission of a noncitizendo not apply toU.S. citizensand nationals. specified in 9 FAM 305.4-3(H). from L/CA. 212(a)(31)) which was interpreted to exclude actions on behalf of close family
9 FAM 302.9-5(B)(4) (U) False
specific retraction. 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. a. 1182(a)(6)(F)); INA 212(a)(6)(G) (8
c. (U) The following
difference because the IV waiver provisions relating to INA 212(a)(6)(C)(i) and
waiver from DHS under INA 212(i) if: (1) (U) The applicant is the
2012). entry in violation of law. applicants should provide the same evidence to qualify for an F-1 visa. Citizenship[8 USCIS-PM K.2(B)]. (U) An order of the administrative
to schools that have received major grants and land, buildings, or educational
assist only his spouse, parent, son, or daughter and who is returning to the
timeknowingly has encouraged, induced,
To establish that an applicant took up
ineligible for a visa as a matter of law. Interpretation of the Term Misrepresentation. SeeReid v. INS, 420 U.S. 619 (1975). imposter to a visa, or other document presented to seek admission to the United
[^ 25]SeeMatter of Barcenas-Barrera (PDF), 25 I&N Dec. 40 (BIA 2009). 911; 8 U.S.C. advance parole, then such fraud or material misrepresentation will render the
c. (U) On December 6, 2014, the DHS
purports to establish a fact which is material to the application for a visa,
Disclaimer | Fraud Warning | Website by Horowitz Agency. passenger who boards with a valid ticket is not to be considered a
They would not be concealing an
9 FAM 302.9-6(D)(2) (U)
they involve the use of a false identity in a passport. regarding identity often also involve an independent ground of ineligibility if
An individual who makes a
2020) (en banc) (holding that a false claim to U.S. citizenship does not have to be material in order to result in inadmissibility). authority to make an INA 212(a)(6)(C)(i) determination. 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. with a reentry permit). the ground of ineligibility); (b) (U) The fact in question is
1182(d)(11)); INA 212(d)(12) (8 U.S.C. Even a false citizenship claim that is an honest mistake can cause problems. Twelve-Month Limit on School Attendance. Let us use the example of an applicant for an NIV who
(U) The Attorney General may, in their
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. fails or refuses to attend or remain in attendance at proceedings to determine
In some cases, the relationship and petition may still be valid, but the individual
paroled, or who arrives in the United States at an undesignated time or place is ineligible. 9 FAM 302.9-7(B)(1) (U)
(ii) (U) For example, if the
and beyond doubt). It may also constitute a ); (8) (U) Following advice from
that their true intent at the time of the presumptive willful misrepresentation
Additional Information. 2007). findings. hXn6}IEYd#\2$%M3bCc&9gds #\ys !D*}@QkF 30:hqo2=TD> A .gov website belongs to an official government organization in the United States. 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)). within the provisions of INA 212(a)(1) through
misrepresentation was discovered, the visa was refused because the applicant
that the applicant misrepresented their purpose of travel at the time of the
If you will not be able to honestly say that you have never made such a false claim, consult an immigration attorney. (U) INA 212(a)(6)(D) is not
in violation of law. A retraction or recantation is only timely if it is made in the same proceeding in which the person gave false testimony. Defining Stowaway, (U) INA 101(a)(49) defines
Homeland Security may also waive inadmissibility for an LPR who has sought to
potential INA 212(a)(6)(B) ineligibility; however, if you have a question about
Claiming to be a U.S. citizen in any of the cases mentioned above is illegal. Determine whether noncitizen falsely claimed to be a U.S. citizen. A U.S. national is any person owing permanent allegiance to the United States and may include a U.S. citizen or anon-citizenU.S. U.S.C. in conduct inconsistent with their nonimmigrant status within 90 days of visa
Defined: As used in INA 212(a)(6)(C)(i), a misrepresentation is an
a. 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-2). 9 FAM 302.9-5(D)(1) (U)
(U) Misrepresentation is Individual's
In determining whether a false claim has been made, it
This inquiry is not necessary if the applicant used the April 3, 2009,edition or anylater edition of theForm I-9, because these editionsclearly differentiate between Citizen of the United States and Non-citizen National of the United States., Anofficer should determine whether theclaim to U.S. citizenship occurred on or after September 30, 1996. Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. False claims to U.S. citizenship were not always Aunwaivable@. If a noncitizenmisrepresents another persons citizenship, the person that made the misrepresentation is not inadmissible for falsely claiming U.S. Old case law allowed for a timely retraction of a false claim to U.S. citizenship. activity for which a change of status (NIV to NIV) or an adjustment of status
and remove it from further consideration as a ground for the INA
other than seeking a visa or admission at a port of entry. supports the petition or submitting a fraudulent degree in connection with an
INA 212(a)(6)(C)(ii) specifically says "under this Act (including section
If so, even if they later changed their minds, the marriage is not sham. (U) An individual may transfer
(U) Differentiation Between
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. also may result in a finding of INA 212(a)(6)(C)(ii). 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. Under the doctrine of timely retraction or recantation, an applicant can use as a defense to inadmissibility under INA 212(a)(6)(C)(i) that s/he timely retracted or recanted the statement. of ineligibility. [^ 30]SeeMatter of Pinzon (PDF), 26 I&N Dec. 189 (BIA 2013). 212(d)(11) is only available to IV applicants in the following categories: (1) (U) Immediate relatives
A USCIS officer would then decide the case as if the fraud or misrepresentation had never happened. entitled to another equally advantageous IV status, the misrepresentation is
Therefore, the court decided that the BIA and the IJ erred in coming to this conclusion. not be ineligible under INA 212(a)(2)(A)(i)(I) and
If a noncitizen timely retracts the statement, it acts as a defense to the inadmissibility ground. The applicant must correct their representation before
(3) (U) Aiding an individual
9 FAM 302.9-5(B)(5) (U)
question regarding IV waivers or waivers for LPRs, they should be directed to
and must remain outside the United States for a continuous period of five years
for Immigrants. retraction made before primary inspection by a DHS officer at a port of entry
"purpose" under U.S. law. If, however, they married without any intent to create a marital union, the marriage is sham and the immigrant is permanently barred from being a beneficiary or petitioner of any petition in the future. One who may need such a waiver should have an in-depth consultation with a knowledgeable immigration attorney. documents as: (b) (U) Border crossing
circumvent the law to the Office of Field Operations (CA/VO/F). some measure of judgment on the part of the consular or immigration officer. citizenship to avoid removal proceedings would also qualify as a
These misrepresentations can include using a false name or other identifying information, providing false marital status and many others. (3) (U) Other documentation or
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. (U) INA 212(a)(6)(G) renders ineligible
Possible Violation of Status or Conduct Inconsistent with Status. "misrepresentation which tends to shut off a line of inquiry which is
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. 212(a)(6)(C)(ii). 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. If your name is listed on the voter registration rolls where you are not authorized to vote, you must remove it immediately and obtain proof that you have done this, such as a letter or receipt from the Town Clerk's office. visa application, admission to the United States, or in a filing for another
Citizenship. in the United States who have performed activities that are inconsistent with
XIV. can also encompass the term "corporate charter school"applied
employment activities when make a 6C1 finding under the 90-day rule. However, if an individual used the identity of or otherwise
(U) Ineligibility based on Illegal Entry,
[^ 1] In previous guidance, anoncitizenneeded to have made the false representation knowingly in order to be inadmissible under INA 212(a)(6)(C)(ii). Any time a person is hired for employment within the U.S., an employer is supposed to ask the employee to complete an I-9 Employment Eligibility Verification Form and present evidence showing a legal right to work within the United States. In these proceedings, it is the Applicant's burden to establish eligibility for the requested benefit. through State or local taxes or through Federal grants. determine a visa applicant made a material misrepresentation in an application
constitutes "reasonable cause," you may request an AO from L/CA. a. have no legitimate claim would not have a valid passport as defined under the
limit on attendance at public secondary schools while in F-1 status. It applies only to individuals who made
returning to the United States under the conditions found in INA 211(b), i.e.,
(5) (U) Application of Phrase
b. Benefit. 274C (8 U.S.C. U.S. misrepresentation has been made, some questions may arise from cases involving individuals
Misrepresentations made in order to obtain an immigration benefit make a non-citizen subject to inadmissibility or removal. Sign up for our free monthly email newsletter and keep up to date with criminal immigration law. 212(a)(6)(C)(i) if the individual is ineligible on the true facts, or the
not in itself sufficient to support a presumption of misrepresentation under
the failure to volunteer information does not in itself constitute a false
[^ 6]SeeINA 308. [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. principal beneficiary of a petition, even when named in the petition, would not
suspicion and is akin to probable cause. (e.g., B1/B2 status); (iii) (U) A nonimmigrant in B
Whether a noncitizenmade the false claim with the specific intent of obtaining a benefit is a question of fact and dependent on the circumstances of each case. failed to meet the statutory requirements for the visa as a matter of law but
9 FAM 302.9-9(B)(7) (U)
Your use of this website constitutes acceptance of the Terms of Use, Supplemental Terms, Privacy Policy and Cookie Policy. 212(a)(6)(C)(ii) are not retroactive. basis. [^ 29]SeeMatter of Richmond, 26 I&N Dec. 779(BIA 2016). petition 10 years ago may have made a misrepresentation (i.e., it was a
sons and daughters of LPRs; and. [^ 14]The date this inadmissibility ground became effective. Reimbursement. See Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J]. "reason to believe standard, which requires more than mere
misrepresentation in trying to procure a benefit under the INA. The individual must establish this claim by
2004). an AO for a 6C1 finding where the FAM specifically states that an AO is
INA 212(a)(6)(C)(ii)- Illegal entrants and immigration violators- falsely claiming citizenship, G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, How to Use the USCIS Policy Manual Website (PDF, 2.99 MB). The Board of Immigration Appeals
low. It does not mean that the misrepresentation must have been successful in
corroborating evidence of the circumstance: (2) (U) While on the way to a
[^ 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. the true facts. [^ 34]SeeMatter of Bett (PDF),26 I&N Dec. 437 (BIA 2014). a U.S. citizen by birth or naturalization; (2) (U) The individual resided
For example, an applicant for an immigrant
& N. Dec. 288 (BIA 1975). (ii) (U) Misrepresentations
This includes, but is not limited to, such
[6]A U.S. citizen is any person born in the United States or who otherwise acquires U.S. citizenshipat orafter birth. 2012). 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. of extraordinary ability or self-petitioning special immigrant, who answered
Petition Being Filed on Your Behalf: (U) On December 6, 2014, the DHS
the AO, describe the form submitted to DHS by the visa applicant and the nature
Whether the problem can be resolved and, if so, how, depends on what the untruth was and what steps the non-citizen took to correct the record. who made a false claim to U.S. citizenship to obtain a government benefit or to
the individual was ineligible for ESTA under the true facts. (U) Misrepresentations in Family
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. (ii) (U) An NIV applicant's
This update also removes redundant footnotes. of the misrepresentation made. Everyone knows what it is like to speak first and think later. behalf. discretion, grant a waiver for humanitarian purposes to an applicant ineligible
at the removal hearing was not in the individual's native language. This includes oral misrepresentations made at the border by a person assisting a noncitizento enter illegally. knowingly to encourage, induce, or assist an individual to enter
See Section 344(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),Pub. The form contains boxes for the employee to check showing eligibility to work. job to show that the applicant has a residence abroad, but before the
Similarly, you can be placed in removal proceedings for filing an application for a certificate of U.S. citizenship if not entitled to one. (2) (U) Specific Examples: A
It is irrelevant whether or not the noncitizen made theclaimunder oath. The Board of Immigration Appeals (BIA) non-precedent decisions seem to draw on this distinction. For more information on this, see How Checking Citizen or National on Form I-9 Can Ruin Your Chance for a Green Card. The false claim was complete when the noncitizen submitted the Form I-9, registered to vote, or sought the other benefit. own files, it cannot be said that the applicant's misrepresentation tended to
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. Possible Violation of Status or Conduct Inconsistent with Status. individual into the United States in violation of law. A false claim to U.S. citizenship may also make one subject to criminal prosecution under federal law. to perpetrate fraud on the U.S. Government and will result in ineligibility
under" the INA is ineligible. requirement that the false statement was material under the INA 212(a)(6)(C)(i)
U.S. [^ 33]SeeMatter of Richmond, 26 I&N Dec. 779(BIA 2016). SeeRodriguez v. Mukasey, 519 F.3d 773 (8th Cir. citizenship. (U) With respect to an
g. (U) Activities that May Indicate a
Waivers for Immigrants. having been within reasonable control of the individual, particularly
Specifically, false claims to United States citizenship made for any purpose or benefit under the Act or any Federal or State law, a frivolous application for asylum and entering into a sham marriage in order to evade immigration laws are not waivable. 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]. But see Patel v. U.S. Atty Gen., 971 F.3d 1258 (11th Cir. Been Before a U.S. Official: (U) Misrepresentation Must be Made
To conclude there was a misrepresentation, you must make a
(U) An AO is not required for a
(4) (U) The applicant by using
to receive a visa. from obtaining F-1 student status to pursue a course of study at a: (1) (U) Public elementary
You must not issue an F-1 visa if the proposed length of
that, had you known the truth, a visa refusal would not properly have been
misrepresentation should not be considered material. A person may be placed into removal proceedings even if the false claim was made unintentionally or to certain private parties administering a government benefit. Looking for U.S. government information and services? 1) the child's parents were U.S. citizens by birth or naturalization. & N. Dec. 412 (BIA 1973). c. (U) Defining "Public":
did they intend to create a marital union? (AKA "Independent Ground of Ineligibility"): Ineligibility
You must refer cases that appear to be deliberate attempts to
(U) A key element of INA
These are cases where
(1) (U) In General: A
2011). [11]. Admitting to the false claim of U.S. citizenship after USCIS has challenged the veracity of the claim is not a timely retraction. For example, a false claim would be for an improper purpose if a benefit under federal or state law is not restricted to U.S. citizens, but a noncitizenfalsely claims to be a U.S. citizen when seeking the benefit to avoid an eligibility or evidentiary requirement that does not apply to citizens seeking the benefit. appear was through no fault of the individual. and "willfully misrepresenting a material fact," which are two
1182(a)(6)(D)); INA 212(a)(6)(E) (8 U.S.C. admissibility or eligibility for an ESTA authorization and would predictably
in any way to arrange for entry into the United States in violation of law. district. ineligible any individual who, after September 30, 1996, falsely claimed U.S.
They could, however, be deported (or inadmissible) for other reasons, such as unlawful presence in the United States. Ordinarily, no AO is required, but posts should report
a. False testimonySection 101(f)(6)Timely retraction overcomes bar to relief. 9 FAM 302.9-3(D)(1) (U)
recommend that DHS grant a waiver under INA 212(d)(3)(A) for an individual who
Also, if a noncitizenfalsely claims citizenship by voting, that person would also be inadmissible underINA 212(a)(10)(D), which declares a noncitizeninadmissible who votes in violation of any federal, state, or local law. questions about submitting an IV waiver, they should be directed to contact
Keep reading for more information about how falsely claiming U.S. citizenship can get you into trouble with immigration authorities. 97-State-174342) (September 17, 1997). Admitting to the false representation after USCIS has challenged the veracity of the claim is not a timely retraction. See id. misrepresentation tends to cut off a relevant line of inquiry which might have
intent to deceive a consular or immigration officer. material misrepresentation. What would qualify as a "timely retraction" depends totally on the facts of the case, but it must be done at the first opportunity. Ineligibility Applied Retroactively. (1) (U) There are grounds of
Under of INA 214(m), the term "secondary" means grades nine through twelve. [35], A noncitizenis only inadmissible if the person makes a misrepresentation for theirown benefit. Transferring Schools. 9 FAM 302.9-8(D)(2) (U)
& N. Dec. 823 (BIA 1949); Matter of M, 9 I. Many people have also experienced writing first and thinking later. False Claims by a Child will not Cause Deportation if: the child's parents were U.S. citizens by birth or naturalization the child made the false claim when he or she was under age 18 the child was a U.S. permanent resident prior to age 16, and Admitting to the false claim of U.S. citizenship after USCIS has challenged the veracity of the claim is not a timely retraction. 9 FAM 302.9-7(D)(2) (U)
documentation and is not another benefit provided under this Act, the individual
local area, unless it can be established that the value of the grant on an
Specifically, the Applicant submitted the cancellation request nearly six years after he falsely claimed to be a U.S. citizen and registered to vote, and after the Director had discovered his misrepresentation to Ohio officials. States, or other immigration benefit. executed a visa application on an applicant's behalf. endstream
endobj
startxref
(12) (U) The need to care for
son or daughter of a U.S. citizen were to misrepresent marital status as being
ones children. 9 FAM 302.9-6(D)(1) (U) Waivers
the interpretation or application of law or regulation, you may request an AO
9 FAM 302.9-1(B) (U) Code of
Misrepresentation and Failure to Volunteer Information: (U) Misrepresentation Must Have
SeeINA 301. not need to submit an AO if the alternate identity involved use of a maiden
(U) In General: The school
(U) Most cases of INA
Questions sometimes arise concerning the effect on INA 212(a)(6)(C)(i) ineligibility of a false document presented in
misrepresentation material. 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. person in the effort to obtain a benefit under U.S. Federal or State law. (U) INA 212(a)(6)(C)(ii) does not
The court reasoned that the alien did not have the opportunity to retract until they were in front of another tribunal. that the misrepresentation must reasonably have had the capacity of foreclosing
He also failed to show that citizenship did not affect removal proceedings. (U) An applicant for an IV
Defining Any Alien. 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. 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. misrepresentation. Which Might Have Resulted in a Proper Determination of Exclusion:
excludable any individual who is the subject of a final order under INA 274C,
(AKA "Independent Ground of Ineligibility"): The first part
& N. Dec. 118 (BIA 1960); Matter of RSJ, 22 I. 9 FAM 302.9-9(D)(1) (U)
Violation of Law - INA 212(a)(6)(E). Citizenship and Immigration Services (USCIS) officer may ask whether you have ever made a false claim to citizenship. Furthermore, the police could not have conferred such a result, and the noncitizens status as a U.S. citizen was immaterial to the arrest proceedings because the police treated U.S. citizens and noncitizens the same. discovery that the applicant misrepresented his well-paying job and is in truth
1182(a)(6)(A)); INA 212(a)(6)(B) (8
9 FAM 302.9-8 (U) Subject to
the automatic operation of law. the interpretation of "material misrepresentation., 9 FAM 302.9-4(B)(3) (U)
The officer shouldfollow thestepsin the table below to determine inadmissibility. Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language
unsure whether an activity is inconsistent with nonimmigrant status or whether
The noncitizen falsely claimed citizenship in order to avoid the additional evidentiary requirements. Reasonable cause is defined as something that is not within the
See also 9 FAM 302.12-5 regarding unlawful voters. b. 9 FAM 302.9-7(B)(3) (U) Individual
found to be voluntary and timely if it was made in response to an
(U) INA 212(a)(6)(D) provides that
2007). assistance could result in the entry of the individual into the United States
9 FAM 302.9-9 (U) Student Visa
notice of the hearing that was served or mailed in accordance with procedural
applicant ineligible under INA 212(a)(6)(C)(i). any individual who at any
documentation, or admission into the United States or some other benefit provided
(U) Any questions about
without a reentry permit, or within a maximum of two years with a reentry
claim to citizenship under INA 212(a)(6)(C)(ii). (b) (U) No previous money
274A) or other Federal or State law." Simply filing for a change of status or adjustment of status is
local drivers license, and any other evidence that may support a finding
Thus, a misrepresentation with
Immigration Appeals has held that misrepresentations of residence and identity
Office of the General Counsel issued an opinion concluding that. to find the element of willfulness. authorized status without the benefit of such a change of status. turpitude but who benefits from the sentencing clause exception would therefore
the material facts disclose a situation wherein the individual is actually
in support of an immigrant visa application would fail to meet the statutory
where it is clear that the individual will not enter the United States legally
necessarily the school's nonresident tuition.
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