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Can a False Claim to US Citizenship Jeopardize Permanent Residency?

Can a False Claim to Citizenship Disqualify You From Getting a Green Card in New Jersey?

In 2012, The Department of Homeland Security (DHS) Office of General Counsel conducted a review of section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA) and recently advised the Department of State (DOS) of some important changes to the way in which Section 212(a)(6)(ii) will be interpreted and applied as to minors. The changes, on its face, don’t appear to be obvious but they are very significant and can make an appreciable difference in how DHS or DOS handles a situation in this context.

What are the basic components of INA Section 212 (a)(6)(C)(ii)?

INA Section 212(a)(6)(C)(ii) states as follows:

  1. In general—Any alien who, by 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 (including section 274A) or any other Federal or State law is inadmissible.
  2. Exception—In the case of an alien making a representation described in subclause (I), if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such representation.

The opinion of DHS General Counsel now reflects an increased sensitivity to minors and provides that:

  1. Only a knowingly false claim can support a charge that an individual is inadmissible under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act.  The individual claiming not to know that the claim to citizenship was false has the burden of establishing this affirmative defense by the appropriate standard of proof (for applicants for admission or adjustment, “clearly and beyond doubt”).
  2. A separate affirmative defense is that the individual was (a) under the age of 18 at the time of the false citizenship claim; and (b) at that time lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship.  The individual must establish this claim by the appropriate standard of proof (for applicants for admission or adjustment, “clearly and beyond doubt”).

Inadmissibility vs. Deportability

An individual’s false claim to citizenship can trigger inadmissibility and/or deportability. See also INA 237(a)(3)(D). Although the grounds of inadmissibility and deportability share similarities, there are some significant notable distinctions all noncitizens should bear in mind.  Generally speaking, inadmissibility refers to whether an individual is admissible to the United States.  This usually occurs in the context of someone applying for permission to be admitted, whether it be physically at the border, during a visa application, or in an adjustment of status situation. On the other hand, deportability refers to whether an individual is subject to removal after he/she has already been admitted into the US. For example, if a person has already been admitted on a visitor’s visa for six months, he/she may be deportable if his/her conduct falls under any of the specified grounds under Section 237 of the INA.  It is important to understand that there are nuances between the two, and while the inadmissibility and deportability sections seem to mirror each other, they are not identical. A person may not necessarily be deportable for a crime involving moral turpitude but may very well be inadmissible if he/she were to leave the country and apply for readmission.

Significance of Changes

In practical terms, the revision of the DHS policy and by extension, DOS policy, will serve to treat minors who may have made false claims to citizenship more equitably, whereas previously there was very little room for an adjudicator to excuse the conduct unless the conduct fell under the specific exception.  This new policy recognizes that not all claims are made knowingly, especially by young people who may make the claim innocently or by those who, due to their youth, may not fully appreciate the grave consequences of their actions.  This new direction will hopefully benefit DACA applicants who may be applying for Deferred Action as a Childhood Arrival or permanent residence.