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False Claims to US Citizenship To Get Private Job Must Be Proven on I-9 Form

The Ninth Circuit recently issued a precedential case that is instructive, and potentially helpful, to individuals accused of making false claims to US citizenship. In Diaz-Jimenez v. Sessions, No. 15-73603 (9th Cir. 2018), the court confirmed that obtaining private employment did fall within the scope of false claims; however, the court also ruled that for purposes of 1182(a)(6)(C)(ii)(I), a person can only be considered to have made a false claim of citizenship in connection with private employment only when such representation is made on Form I-9. In the case at hand, there was no evidence of an I-9 form to sustain the government's claim that Mr. Diaz-Jimenez misrepresented his citizenship status to secure a job, resulting in the court reversing the BIA's finding and remanding the case.

Why Is This Case Important?

While this is only a 9th circuit case and not binding on states outside its jurisdiction, the case illuminates some of the more equivocal issues surrounding false claims. Under 8 USC 1182(a)(6)(C)(ii)(I), an "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 chapter (including [8 USC 1324a] or any other Federal or State law is inadmissible." Some attorneys have argued that private employment is not a "purpose or benefit" within the purview of the statute. However, the 9th Circuit itself, an arguably liberal bastion, joined other circuits in concluding that private jobs are a qualifying "purpose or benefit." Moreover, the court cited Matter of Bett, 26 I & N Dec. 437 (BIA 2014), a BIA decision, which ruled that "an alien who represents himself as a citizen on a Form I-9 to secure employment with a private employer has falsely represented himself for a purpose or benefit under the Act." The distinguishing aspect of this case is that it holds that a charge of false claim of US citizenship to obtain a private job must be predicated on proof that the alien misrepresented his/her status on an I-9. For example, if the government alleges that a person made a false claim to secure employment by showing an altered social security card but fails to present an I-9 signed by the individual, the charge will likely fail.

This principle may be why USCIS has increasingly requested, or in some cases, tried to subpoena I-9 forms from green card applicants (or their employers). An I-9 form which indicates that an alien has checked off the US Citizen box will not only confirm an officer's suspicion that a misrepresentation has been made, but more importantly, constitute a basis to charge the individual with making a false claim to US Citizenship-a removable offense with no waiver (except under extremely limited circumstances).

It is worth noting, however, that the government may attempt to lodge a false claim charge on other grounds. The holding of this case is only narrowly applied to situations where a person is alleged to have made a false claim in connection with getting a job. There are, of course, a plenty of other scenarios where a job may not necessarily be implicated or involved. For example, the presentation of a false birth certificate or altered US passport to get into the United States would likely trigger a charge where an I-9 is irrelevant. Another common problem is when individuals may have voted in elections or represented themselves to be US Citizens when applying for loans.

Especially in this climate of enforcement, any non-US citizen who may have misrepresented his/her citizenship status should strongly consider consulting with an attorney before applying or submitting any applications with the government.

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