USCIS recently supplemented its Policy Manual with a new section of false claims to US Citizenship. Few people realize that out of all the grounds of inadmissibility, making a false claim to US citizenship is one of the most devastating. Except under very limited circumstances, there is no waiver available, unlike other most other grounds. For example, if an individual is charged with a criminal ground of inadmissibility, a 212h waiver may possibly allow that ground to be overcome. Another common scenario is the unlawful presence bar. A person subject to the 3 or 10 year ban may have the opportunity to waive the bar through an I-601 or I-601A application. But for false claims, there is no such mechanism. Given the gravity and seriousness of this immigration violation, it is especially important that there be uniform and transparent standards in place to avoid arbitrariness. According to the manual, there are 8 specifics steps that must be scrupulously followed in order to fairly arrive at such a conclusion.
Step 1: Determine whether foreign national claimed to be a US citizen
Step 2: Determine whether foreign national made the representation on or after September 30, 1996
Step 3: Determine whether the representation was false
Step 4: Determine whether foreign national knew the claim to US citizenship was false
Step 5: Determine whether foreign national's false claim to US citizenship was for the purpose of obtaining a benefit under the INA or under any other federal or state law
Step 6: Determine whether foreign national timely retracted the false claim to US citizenship
Step 7: Determine whether foreign national is exempt from inadmissibility because a statutory exception applies
Step 8: Determine whether a waiver of inadmissibility is available
USCIS Policy Manual, Part K, Volume 8-Admissibility
As is evident, each step of the process must be satisfied before a proper finding can be sustained. Moreover, the language can be deceptively simple. For example, in determining whether someone claimed to be a US Citizen, the officer should be aware that an individual who claims to be a US National does not necessarily claim to be a US citizen. Similarly, answering "yes" to the "citizen or national" question on the I-9 form does not conclusively establish that the foreign national claimed to be a citizen. Another area that needs to be explored by the officer is whether claim was, in fact, false-- and if so, whether the individual made the claim knowing it to be false. Some factors that may mitigate a finding of affirmative misrepresentation include but are not limited to whether the person merely refused to answer or respond to questions, as well as the age and mental capacity of the person. If the person accused of making the false claim is or was a youth at the time, it may be argued that the person did not have the mental capacity either to understand or make an affirmative misrepresentation. Furthermore, even assuming that the false claim was affirmatively made with knowledge that the claim was false, it must be demonstrated that the claim was made in connection with some "purpose or benefit" under the Immigration and Nationality Act.
Given the many nuances in this area, and the draconian ramifications of false claim findings, it behooves any individual affected by such a claim not to hastily assume or concede such a finding to be legally correct. In some cases, an officer may have neglected or overlooked one of these important steps, which can potentially render this ground of inadmissibility deficient. For more information on false claims, inadmissibility, and possible ways to overcome them, please contact our office. The foregoing is general information only and not intended to serve or substitute for legal advice. Furthermore, it does not create an attorney-client relationship.