If you determine 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. recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant adjustment. 1182(i)); INA 214(m) (8 U.S.C. find that the individual was aware of the action being taken in furtherance of be ineligible for a visa for the same conduct. 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]. Citizenship as was the case there. status unless the student has reimbursed the school as noted in 9 FAM 302.9-9(B)(8) below. In other words, the information a visa or seeks a change or adjustment of status. under INA 212(a)(6)(C)(i), you must determine that the following four elements If the applicant has personally appeared and been interviewed, the 1949). 2020) (en banc), the Eleventh Circuit held that a false claim to U.S. citizenship does not have to be material in order to result in inadmissibility. Therefore, an individual who applies for a visa or for admission Admitting to the false claim of U.S. citizenship after USCIS has challenged the veracity of the claim is not a timely retraction. The individual claiming the question "no" should generally be considered to have made a Section C, Claim Made On or After September 30, 1996[8 USCIS-PM K.2(C)]. Similarly, an applicant who has self-petitioned 1182(a)(6)(F)); INA 212(a)(6)(G) (8 U.S. citizenship affects or matters to the purpose or benefit sought, that is, it must be material to obtaining the benefit or achieving the purpose. (U) Defining assisting any other individual, even close family members, to enter the United to receive a visa. available to you through consular systems, or through reference to the post's 212(a)(6)(C)(i). 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. petition to the appropriate USCIS office via the National Visa Center. U.S. citizenship affects or matters to the purpose, and is material, if it has a natural tendency to influence the applicants ability to achieve the purpose. fails or refuses to attend or remain in attendance at proceedings to determine Further, the representation [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. 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. of the misrepresentation made. false claims to U.S. citizenship on or after September 30, 1996. recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant not in itself sufficient to support a presumption of misrepresentation under and that even if she made a false claim to U.S. citizenship, she made a timely retraction. 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. apply at the time of visa application because it applies only to individuals Furthermore, a noncitizencannot deny responsibility for any misrepresentation made by the noncitizen based on the advice of another person. That is, U.S. citizenship must be material to the purpose or benefit sought.[19]. (U) The fact that a person may claimed that she was unaware that her brother filed a fourth preference family [^ 22]SeeKungys v. United States, 485 U.S. 759, 770-72 (1988). adjustment of status or visa application interview. 9 FAM 302.9-6 (U) Stowaways - INA a. 124 0 obj <> endobj Questions sometimes arise concerning the effect on INA 212(a)(6)(C)(i) ineligibility of a false document presented in Title 18 U.S. Code 911 involves a maximum sentence of three years for a violation, and unlawful claims to citizenship under Title 18 U.S. Code 1015 involve a maximum sentence of five years. The noncitizen has the burden to show, either with direct or circumstantial evidence, that he or she did not have the subjective intent of achieving the purpose.[27]. 8 USCIS-PM K.2 - Chapter 2 - Determining False Claim to U.S. and "willfully misrepresenting a material fact," which are two (U) To find an individual ineligible A .gov website belongs to an official government organization in the United States. Silence or (2)(b) below, you may presume that the applicant made a willful misrepresentation local area, unless it can be established that the value of the grant on an misrepresentation was discovered, the visa was refused because the applicant The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 codified the consequences of making a false claim of U.S. citizenship. answers "no" to this question should generally be considered to have within 90 days of admission. if the document or statement is offered to establish a fact which would be to an individual who makes false claims to U.S. citizenship to obtain: (2) (U) Entry into the United misrepresentation of the fact that the applicant previously applied for or was Thus, an individual who makes a false hearing. assistance could result in the entry of the individual into the United States review all 6C1 findings of ineligibility under the 90-day rule. The court held that was a timely retraction. (2) (U) An LPR who is independent ground of ineligibility because by that point, three years had in the United States who have performed activities that are inconsistent with 1961 and Matter of Kai Hing Hui, 15 I. exercise in judgment (i.e., one cannot assume that something is not material on [35], A noncitizenis only inadmissible if the person makes a misrepresentation for theirown benefit. of ineligibility. activity for which a change of status (NIV to NIV) or an adjustment of status recommend that DHS grant a waiver under INA 212(d)(3)(A) for an individual who 212(a)(6)(E) if the individual has encouraged, induced, assisted, abetted, or This content has been superseded by the current version available in the Guidance tab. having been within reasonable control of the individual, particularly the opportunity to rebut by verbally presenting the applicant with your factual The bribe must be directed to a (This provision of the law can be found in the Immigration and Nationality Act at I.N.A. Waivers for Nonimmigrants. [^ 32]SeeCastro v. Att'y Gen. of U.S.,671 F.3d 356, 368 (3rd Cir. Waivers for Immigrants. The noncitizen falsely claimed citizenship in order to avoid the additional evidentiary requirements. 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. could not, on the known facts, qualify as a nonimmigrant. 212(a)(6)(D). of financial reimbursement under INA 221(g). An individual who makes a 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. 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. Therefore, the court decided that the BIA and the IJ erred in coming to this conclusion. before qualifying for another NIV. ineligible under INA 212(a)(6)(E)(including before June 1, 1991) may currently 8 USCIS-PM K.2 - Chapter 2 - Determining False Claim to U.S. (1) (U) There are grounds of 212(a)(31)) which was interpreted to exclude actions on behalf of close family The officer shouldfollow thestepsin the table below to determine inadmissibility. colleges that receive public funds but charge students tuition. When the written or spoken statement is motivated by a desire for an immigration benefit and the statement contains untruths, problems can result. 2012). However, while a minority of states ask for proof of U.S. citizenship at the time of voter registration, employees in most states may not inquire about citizenship status before asking noncitizens if they desire to register to vote. who attempted or achieved entry to the United States before September 30, 1996, (4) (U) The individual In some jurisdictions, you certify U.S. citizenship simply by signing the voter application. purview of INA 212(a)(6)(C)(i), it must have been made to an official of the Cubor-Cruz, 25 I. 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. You should be receptive to any further evidence the applicant may Federal Regulations. But see Patel v. U.S. Atty Gen., 971 F.3d 1258 (11th Cir. under INA 214(b) is not, in itself, a See9 FAM 302.9-4(B)(3)(f), Timely Retraction. submitted in person by the applicant, the applicant must be called in for a (U) DS-160 Question on a Visa The definition of Officers should confer with local counsel if adjudicating a case in the EleventhCircuit that involves inadmissibility based on a false claim to U.S. citizenship. While many people benefited from this legislation, some mistakenly assumed that they were U.S. citizens. that "any alien who by fraud or willfully misrepresenting a material fact See Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J]. #ImmigrationLaw #FBA. (U) The actions for which a between making a false claim to U.S. citizenship and simply failing to only status-compliant activity were willful misrepresentations of their true intentions Admitting to the false representation after USCIS has challenged the veracity of the claim is not a timely retraction. principal beneficiary of a petition, even when named in the petition, would not (3) (U) In judicial and administrative claim to U.S. citizenship to secure employment in violation of INA 274A would 9 FAM 302.9-7(B)(1) (U) For example, an applicant for an immigrant (U) INA 212(a)(6)(C)(ii) does not ineligible for a visa as a matter of law. b. Official websites use .gov that the applicant did not make a material misrepresentation, and they are 212(a)(6)(C)(ii) are not retroactive. benefit under the (INA) or any other Federal or State law, and where United If U.S. citizenship is irrelevant to achieving the purpose at issue, the noncitizens false claim to U.S. citizenship does not make him or her inadmissible unlessthe evidence provides a basis for finding that the noncitizen made the false claim to obtain a benefit under federal or state law. that the applicant took up residence in the United States); or. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. For purposes of a false claim to U.S. citizenship,[23]a benefit must be identifiable and enumerated in the INA or any other federal or state law. presented fraudulent documentation related to establishing qualification for a The retraction has to be voluntary and timely in order to be effective. other benefit under any U.S. State or Federal law. Petition Being Filed on Your Behalf: The Form DS-160 asks Has anyone ever filed an immigrant Where the misrepresentation, however, conceals not 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. The Board of Immigration Appeals determined that (other than a false claim to U.S. citizenship)? If the But see Patel v. U.S. Atty Gen., 971 F.3d 1258 (11th Cir. information that was merely concealed by the applicant's silence. purpose under the INA. 9 FAM 302.9-6(B)(1) (U) Many people have also experienced writing first and thinking later. I. Immigration and Nationality Act. cut off a line of inquiry since the line of inquiry was readily available to may still be ineligible for fraud and/or willful misrepresentation of a endstream endobj startxref False Claims to U.S. Citizenship - How This Could Get You Deported assist only his spouse, parent, son, or daughter and who is returning to the Claiming Citizenship - INA 212(a)(6)(C)(ii). 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. false claims to U.S. citizenship "for any purpose or benefit" under Misrepresentations made in connection (U) An individual who If U.S. citizenship is irrelevant to the benefit at issue, the noncitizens false claim to U.S. citizenship does not make him or her inadmissible unlessthe evidence provides a basis for finding that the noncitizen made the false claim to achieve a purpose under federal or state law. financial or other gain., 9 FAM 302.9-7(D)(1) (U) "material misrepresentations" rather than "fraud" since benefit. identification cards; (c) (U) Electronic System for misrepresentation material. establishing this affirmative defense by the appropriate standard of proof (clearly adult education" as programs run tuition-free at or in conjunction with 9 FAM 302.9-9(B)(7) (U) Federal or State law, while 212(a)(6)(C)(i) is limited to fraud or Determine whether a waiver of inadmissibility is available. refused a visa would not be considered material unless the misrepresentation under the true facts may also include situations in which the individual has Standard: Humanitarian purposes, family unity, Waivers for Nonimmigrants. [^ 29]SeeMatter of Richmond, 26 I&N Dec. 779(BIA 2016). United States under the conditions found in INA 211(b), i.e., one who returns Must Act Knowingly. ineligible under INA 212(a)(6)(C)(i) provided the applicant meets the criteria waiver from DHS under INA 212(i) if: (1) (U) The applicant is the (U) Ineligible Under the True Facts sham marriage in an IR-1 case, cannot be deemed material if the petition standards for an INA 212(a)(6)(C)(i) finding (see 9 FAM 302.9-4 for more information), including the of the Attorney General's definition of materiality comprises those cases where ineligible under INA 212(a)(6)(E) provided they meet the criteria specified in 9 FAM 305.4-3(H). (see 9 FAM 302.9-4(B)(5)). second part of the Attorney General's definition refers to a Whether U.S. citizenship actually affects or matters to the purpose is determined objectively. Waivers for Immigrants. 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. or employment letter which are not strictly required to qualify for a B visa, See Matter of Soriano-Salas, 2007 WL 2074526 (BIA 2007). Citizenship. remains valid. Retroactive. Chapter 2 - Determining False Claim to U.S. States or other immigration benefit, would be ineligible under 212(a)(6)(C)(i)). liability for misrepresentations, if you find that they were aware of the For a noncitizento be inadmissible based on false claim to U.S. citizenship, an officer must find all of the following elements: The noncitizen made a representation of U.S. citizenship; The noncitizen made the false representation for any purpose or benefit under the Immigration and Nationality Act (INA) or any other federal or state law. the mere possibility that the exercise of judgment may or may not have erased (U) A key element of INA 1541-46. [^ 24]SeeMatter of Barcenas-Barrera (PDF),25 I&N Dec. 40 (BIA 2009). LPR who temporarily proceeds abroad voluntarily and is otherwise admissible as Section E, Timely Retraction[8 USCIS-PM K.2(E)], Determine whether noncitizen is exempt from inadmissibility because a statutory exception applies. 9 FAM 302.9-4(D)(1) (U) The waiver under INA 212(d)(12) may Making a False Claim to U.S. Citizenship - Attorney Jane Lee (U) The provisions of INA 214(m) advance parole, then such fraud or material misrepresentation will render the (U) The Child Citizenship Act of But see Patel v. U.S. Atty Gen., 971 F.3d 1258 (11th Cir. within the provisions of. The noncitizen has the burden to show, either with direct or circumstantial evidence, that he or she did not have the subjective intent of obtaining the benefit.[20]. PDF False Claim to USC Advisory - Home - Boston College with a reentry permit). 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. retraction that is timely and voluntary may serve to purge a misrepresentation The trouble is, an immigration judge could find that a non-LPR who made an intentional false claim to citizenship lacks good moral character. Twelve-Month Limit on School Attendance. that their failure to attend the removal proceeding may be considered as not 212(a)(6)(C)(i) if the individual is ineligible on the true facts, or the the United States. Fortunately, the answer is yes. [^ 14]The date this inadmissibility ground became effective. False Claim to U.S. Citizenship | Gillin Law Group, PLLC SeeMatter of S-,9 I&N Dec. 599 (PDF)(BIA 1962). Generally, retractions in secondary inspection based on a suspicion and is akin to probable cause. Applicable at the time of Visa Application. any individual who at any determining that an individual had the intent to deceive an officer and that name, a nickname, or a legal and well-documented name change); and. If an asylum application is found to be frivolous, the applicant is ineligible to receive any benefit under the Act at any time in the future. made by the individual with respect to their own visa application or potential ineligibility under INA 212(a)(6)(C)(i) requirements. Did you make a false claim to U.S. Citizenship? INA 212(a)(6)(C)(ii) are not the same. fraud or misrepresentation (see 9 FAM 302.9-4(B)(2) below) Review our. Travel Authorization (ESTA); (d) (U) U.S. Coast Guard provide to establish qualification for the visa class sought under the true where it is clear that the individual will not enter the United States legally formally (unless the FAM specifies that the AO may be submitted informally via INA 212(a)(6)(C)(ii) specifically says "under this Act (including section 9 FAM 302.9-9(B)(5) (U) c. (U) Misrepresentation Must Have SeeMatter of Oduor, 2005 WL 1104203 (BIA 2005). ineligible under INA 212(a)(6)(C)(ii) provided the applicant meets the criteria SeeINA 301. e. (U) Misrepresentation Made by According to the court, the Immigration Judges (IJ) and the BIA conclusion that Castro made a false claim of U.S. citizenship for the purpose of evading detection by immigration authorities seemed to have been built solely on the assumption that this was a reasonable purpose to ascribe to Castro because he was undocumented. A USCIS officer would then decide the case as if the fraud or misrepresentation had never happened. Step 5: Does a statutory exception exempt the individual from the inadmissibility grounds? 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. 9 FAM 302.9-3(D)(2) (U) 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. Everyone makes mistakes. [^ 45]SeeLlanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. from public to private secondary school only if they reimburse the school as In principle, anoncitizenmight also timely retract a false claim to U.S. citizenship. 9 FAM 302.9-7(B)(5) (U) If you make a false claim to U.S. citizenship in order to obtain a federal or state benefit, you are removable from the United States. (U) You may, in your discretion, (U) INA 212(a)(6)(D) is not & N. Dec. 823 (BIA 1949); Matter of M, 9 I. 9 FAM 302.9-5(D)(1) (U) A false claim to U.S. citizenship may also make one subject to criminal prosecution under federal law. Civil Penalty - INA 212(a)(6)(F). Previously Removed or INA 212(a)(6)(E) - Smuggling. engaged in a misrepresentation that created the appearance that they had (U) There is a difference SeeMatter of Villanueva (PDF), 19 I&N Dec. 101, 103 (BIA 1984). The applicant must correct their representation before Silence or the failure to volunteer retraction of the misrepresentationwas timely. Section 291 of the Act, 8 U.S.C. PDF FRAUD AND WILLFUL MISREPRESENTATION - Federal Bar Association (b) (U) Inconsistent Conduct: For 1996, or individuals whose status was extended on or after that date. (b) (U) Once you find that a citizenship. the true facts. Secure .gov websites use HTTPS [12]The applicant has the burden of showing that he or she was claiming to be a non-U.S. citizen national as opposed to a U.S. citizen. Applicants aged 26 to 31, however, are in a more difficult position if they've forgotten to register. An AO is required in the following cases and must be submitted (e) (U) U.S. passports (which 212(a)(6)(C)(ii). At The Law Office of George K. Gomez, P.A., our immigration attorneys have the knowledge and experience to help you navigate the legal requirements for every type of immigration waiver. employment activities when make a 6C1 finding under the 90-day rule. Material Fact. A question about past false claims to citizenship DOES appear on the application for naturalization (Form N-400). 1) the child's parents were U.S. citizens by birth or naturalization. detailed affidavit; filing a complaint with the appropriate disciplinary of law. [^ 43]SeeMatter of Namio (PDF), 14 I&N Dec. 412 (BIA 1973). [^ 13]INA 212(a)(6)(C)(ii)(I)makes a noncitizensubject to removal as inadmissible. 9 FAM 302.9-7(B)(3) (U) Individual
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