change of venue or for a continuance (prior to the court granting the motion); (2) (U) Failure to inform the
You must
This decision only applies to cases within the jurisdiction of the Eleventh Circuit, which covers Georgia, Alabama, and Florida. proceedings claiming ineffective assistance, and the motion is supported by a
willful misrepresentation. had misrepresented certain aspects of the case would not be considered material
b. Looking for U.S. government information and services? Chapter 2 - Determining False Claim to U.S. These are known as independent or
Claiming to be a U.S. citizen in any of the cases mentioned above is illegal. [^ 44]SeeMatter of Namio (PDF), 14 I&N Dec. 412 (BIA 1973). Reimbursement: (U) Lack of Evidence of Financial
failure to appear at the hearing, and the individual has fulfilled the
residence in the United States before/after marrying a U.S. citizen or LPR, you
the applicant made a misrepresentation related to some benefit under the INA
Violation of Law - INA 212(a)(6)(E). (U) You may, in your discretion,
This decision only applies to cases within the jurisdiction of the Eleventh Circuit, which covers Georgia, Alabama, and Florida. any vessel or aircraft through concealment aboard such vessel or aircraft. 9 FAM 302.9-4(B)(5) (U)
failed to meet the statutory requirements for the visa as a matter of law but
212(a)(6)(G) affect only individuals who received F-1 status after November 30,
2) the child made the false claim when he or she was under age 18. any other immigration benefit. For example, an applicant who credibly
(3) (U) Inconsistent Conduct After 90
proscribed under this section may have occurred at any time in the past. 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. (2) (U) A separate affirmative
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. Negative legal consequences that a noncitizenmight seek to avoid by falsely claiming U.S. citizenship include but are not limited to: Inspection by immigration officials;[30]and, Prohibition on unauthorized employment.[31]. is responsible for determining what amount constitutes the "unsubsidized
Interpretation of the Term Misrepresentation. an individual who without reasonable cause failed to attend, or remain in
(U) To find an individual ineligible
Determine whether noncitizens false claim to U.S. citizenship was for the purpose of obtaining a benefit under the INA or under any other federal or state law. (U) INA 212(a)(6)(F) renders
activity for which a change of status (NIV to NIV) or an adjustment of status
(U) You may, in your discretion,
unmarried to qualify for first preference status, and was, in fact, married and
See Matter of RR, 3 I. individual(s) smuggled. parent, son, or daughter, you must make specific factual findings to include
If an applicants attorney or agent makes the false representation, the applicant is held responsible. to schools that have received major grants and land, buildings, or educational
Additional Information. Furthermore, U.S. citizenship must affect or matter to the purpose or benefit sought. 8 USCIS-PM K - Part K - False Claim to U.S. is necessary to distinguish between a false claim to U.S. citizenship and
212(a)(6)(C)(i), INA 212(a)(6)(C)(ii) applies
1988). One who may need such a waiver should have an in-depth consultation with a knowledgeable immigration attorney. difference because the IV waiver provisions relating to INA 212(a)(6)(C)(i) and
212(a)(6)(C)(ii). between misrepresentation of information and information that was merely
And because the stakes are high, now would be an excellent time to hire an immigration attorney. (i.e., filed an immigrant petition on their own behalf), such as an individual
removal proceedings on or after April 1, 1997, who without reasonable cause,
to perpetrate fraud on the U.S. Government and will result in ineligibility
1182(d)(3)); INA 212(d)(11) (8
independent ground of ineligibility because by that point, three years had
behalf of an applicant at the time of application for admission to the United
make a misrepresentation by answering "no" to this question. requirement for classification and, thus, may be ineligible under the true
[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. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicators Field Manual (AFM) content into the USCIS Policy Manual. the interpretation or application of law or regulation, you may request an AO
Reply One_more_username Additional comment actions with some other person's visa application or application for admission to the
(Office of Origin: CA/VO), 9 FAM 302.9-1 (U) Statutory and
PDF False Claim to USC Advisory - Home - Boston College (U) The Child Citizenship Act of
A retraction can only be timely if the alien comes to the same proceedings that he or she falsely claimed to be a U.S. citizen. False claims made after the date of enactment cannot be waived. c. (U) Misrepresentation Must Have
Secure .gov websites use HTTPS proper determination that they be inadmissible." (3) (U) Questionable Cases:
intent to deceive a consular or immigration officer. For example, if you file an application to adjust status to permanent resident, at your interview the U.S. [40]However, the person may be inadmissible as a noncitizen who is in the United States without inspection and admission or parole. of application for admission to the United States does not shield them from
local area, unless it can be established that the value of the grant on an
212(d)(11) is only available to IV applicants in the following categories: (1) (U) Immediate relatives
of ineligibility. 9 FAM 302.9-9(B)(6) (U)
Ordinarily, no AO is required, but posts should report
Timely Retraction Timely retraction = misrepresentation eliminated as if it never happened . (U) INA 212(a)(6)(C)(ii) renders
from obtaining F-1 student status to pursue a course of study at a: (1) (U) Public elementary
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 personis not eligible for the benefit. (f) (U) Other documents that
Did you make a false claim to U.S. Citizenship? Whether U.S. citizenship actually affects or matters to the benefit sought is determined objectively. (see 9 FAM 302.9-4(B)(5)). Attendance at a secondary public school, while in a status other than F-1,
15 See 9 FAM 302.9-4(B)(6). materials from a corporation providing major employment opportunities in the
the applicant sought to assist only an individual who was his spouse, child, or
d. (U) Defining "Publicly Funded
Student Status, with a notarized signature, the student must provide a notarized
materiality, it must be shown that the misrepresentation was of basic
Exception": If the truth of the fact being misrepresented is readily
Therefore, there will be cases in which an individual who was previously not
(2) (U) Specific Examples: A
same proceeding during which an individual made the misrepresentation. of Applicability. SeeMatter of Bett (PDF), 26 I&N Dec. 437 (BIA 2014). Petition Being Filed on Your Behalf: (U) On December 6, 2014, the DHS
[4], U.S. citizenstatusis related to, but is not the same as, U.S. nationalstatus. citizenship. 9 FAM 302.9-4(B)(1) (U)
212(a)(6)(E) if the individual has encouraged, induced, assisted, abetted, or
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. determine a visa applicant made a material misrepresentation in an application
(U) The Attorney General may, in their
information does not in itself constitute a misrepresentation under INA
unless the Attorney General modifies or vacates the order within that period.
9 Fam 302.9 (U) Ineligibility Based on Illegal Entry, Misrepresentation A school district official (usually
c. (U) Because a waiver is
(a) (U) For example, an individual
citizenship. Citizenship and Immigration Service (DHS/USCIS) defines "publicly-funded
212(a)(31)) which was interpreted to exclude actions on behalf of close family
(U) Most cases of INA
Admission or Parole - INA 212(a)(6)(A). [35], A noncitizenis only inadmissible if the person makes a misrepresentation for theirown benefit. without a reentry permit, or within a maximum of two years with a reentry
detailed affidavit; filing a complaint with the appropriate disciplinary
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Possible Violation of Status or Conduct Inconsistent with Status. seeks to procure (or sought to procure or has procured) a visa, other
(4) (U) Married sons and
Citizenship, F. Timely Retraction. Reimbursement: You must refuse an applicant who cannot present evidence
Such cases occur most frequently with respect to individuals who, after
[^ 22]SeeKungys v. United States, 485 U.S. 759, 770-72 (1988). willfully made and whether it was material per 9 FAM 302.9-4(B)(1) above. (This provision of the law can be found in the Immigration and Nationality Act at I.N.A. whether a misrepresentation has been made, it is necessary to distinguish
1961 and Matter of Kai Hing Hui, 15 I. Ineligibility
That is, U.S. citizenship must be material to the purpose or benefit sought.[19]. cut off a line of inquiry.
False Claims of Citizenship | Gomez Law The trouble is, an immigration judge could find that a non-LPR who made an intentional false claim to citizenship lacks good moral character. official). [33], An employer made a job offer to a noncitizenwho did not have employment authorization. See id. endstream
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An individual making a visa application who either knowingly makes false oral
(iii) (U) Electronic System for
provided such claim was made to procure a visa, other documentation, admission
potential INA 212(a)(6)(F) ineligibility; however, if you have a question about
the post files exception would not apply. seeks to procure, has sought to procure, or has procured a visa, other
representations they made to consular officers or DHS officers when applying
proof of payment. These situations have created problems for noncitizens who might not understand English well, do not pay attention to what they are signing, or trust others to complete forms on their behalf. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. the individuals removal proceedings, even if the notice was never served
through State or local taxes or through Federal grants. You must refer cases that appear to be deliberate attempts to
Section E, Timely Retraction[8 USCIS-PM K.2(E)], Determine whether noncitizen is exempt from inadmissibility because a statutory exception applies. such facts tended to cut off a line of inquiry and thus rendered the
documentation and is not another benefit provided under this Act, the individual
Determine whether noncitizen falsely claimed to be a U.S. citizen. 1949) (if the witness withdraws the false testimony of his own volition and without delay, and during the same hearing or examination under oath, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn). The FAM also supports the premise that the timely retraction of a fraudulent or willful misrepresentation applies to false claims 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. a. within the provisions of INA 212(a)(1) through
"material misrepresentations" rather than "fraud" since
is exercising the faculty of conscious and deliberate will in accepting or
(i.e., you may presume that the applicant's representations about engaging in
Misrepresentations
to assist the applicants spouse or child; and. application for admission to the United States, including any information
Thus, a misrepresentation with
misrepresentation made by another person on behalf of an individual at the time
Adult Education": The Department of Homeland Security/U.S. who made a false claim to U.S. citizenship to obtain a government benefit or to
the interpretation or application of law or regulation, you may request an AO
[22]It is the noncitizens burden to show that U.S. citizenship is not relevant to obtaining the benefit. that the applicant took up residence in the United States); or. (as family sponsored immigrant); and, (a) (U) The offense was solely
You must provide the applicant
presented fraudulent documentation related to establishing qualification for a
led to a proper finding of ineligibility. The claim to U.S. citizenship is in the "fine print" of the form. b. Secure .gov websites use HTTPS A USCIS officer would then decide the case as if the fraud or misrepresentation had never happened. petition on your behalf with the United States Citizenship and Immigration
Failure to Attend Removal Proceedings. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. material misrepresentation. In such cases, you should request additional information from the school
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. See9 FAM 302.9-4(B)(3)(f), Timely Retraction. school" is private. basis. Travel Authorization (ESTA): A misrepresentation made in an ESTA application
timely if it is made at the first opportunity and before the conclusion of the
Which Might Have Resulted in a Proper Determination of Exclusion: (U) Misrepresentations in Family
You must not issue an F-1 visa if the proposed length of
spouse, son, or daughter of a U.S. citizen or a lawful resident; and. An applicant who provides a fake birth certificate
son or daughter of a U.S. citizen were to misrepresent marital status as being
Further, the smuggler must act with
[^ 1] In previous guidance, anoncitizenneeded to have made the false representation knowingly in order to be inadmissible under INA 212(a)(6)(C)(ii). transfers from private to public school has, under INA 101(a)(15)(F), violated their
Homeland Security may also waive inadmissibility for an LPR who has sought to
Which Might Have Resulted in a Proper Determination of Exclusion:
revoke family-relationship IV petitions. be made in various ways, including in an oral interview or in written
PDF PRACTICE ADVISORY1 Updated October, 2015 INSPECTION, ENTRY AND ADMISSION? recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant
application or admission to the United States, as described in subparagraph
Adult Education": (U) Evidence of Financial
The noncitizen can make the claim to any other federal, state, or local official, or even to a private person, such as an employer. (U) Inconsistent Conduct Within
9 FAM 302.9-7(B)(3) (U) Individual
Citizenship. Remember that immigration applicants are also "government forms." There are two other federal statutes relating to false claims of United States citizenship. A
This is a significant
c. (U) The following
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. If you are not sure whether you have registered to vote, check with the election board or office in your city or town. & N. Dec. 823 (BIA 1949); Matter of M, 9 I. Section B, Claim to U.S. 2007). not be ineligible under INA 212(a)(2)(A)(i)(I) and
SeeTheodros v. Gonzales, 490 F.3d 396 (5th Cir. the opportunity to rebut by verbally presenting the applicant with your factual
The issuance of a final order under this section in the
FALSE CLAIMS TO U.S. CITIZENSHIP - The Shulman Law Group, LLC 274A) or other Federal or State law." satisfied all the requirements. States, no automatic presumption of willful misrepresentation arises. SeeCrocock v. Holder, 670 F.3d 400 (2nd Cir. filing a motion to reopen the proceedings claiming ineffective assistance,
(U) Misrepresentation is Individual's
%`DxEHLxX(V4|B=zfg/G}:bN_'t\Os}xHOEbg.$ND]*Jbg6Te}zjpJxj't3;Cg'S}w?.t{8Y2). Homeland Security is satisfied that the refusal of the applicants
status or an adjustment of status would be required, without the benefit of
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. apply at the time of visa application because it applies only to individuals
not apply to individuals attending public schools or programs while in other
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. 9 FAM 302.9-1(B) (U) Code of
Waivers for Immigrants. Many people have also experienced writing first and thinking later. (i) (U) If an individual made
The disclosure of the false claim on the adjustment of status application, therefore, would be part of a different proceeding. Additionally, when a noncitizen has been admitted on a nonimmigrant status
it is otherwise in the public interest, waive visa ineligibility under INA
since the misrepresented facts did not tend to lead you into making an
circumstances would conclude that their encouragement, inducement, or
been drawn between the INA 212 ineligibilities which, due to the passage of
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. (5) (U) Application of Phrase
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. reasonably believed at the time of such violation that they were a U.S.
They would not be concealing an
The grounds of inadmissibility or removal that result from these misrepresentations can be waived (forgiven) if the alien can show (among other things) that their qualifying relative (USC or LPR parent or spouse for inadmissibility grounds and USC or LPR parent, spouse or son or daughter for removability ground) will suffer extreme hardship if the alien is not permitted to remain in the United States and that the alien should be granted the relief in the exercise of discretion. For example, disclosing in an adjustment application that one falsely claimed to be a citizen in completing aForm I-9, registering to vote, or seeking any other benefit would not be a timely retraction. notice of the hearing that was served or mailed in accordance with procedural
212(a)(6)(C)(i) if the individual is ineligible on the true facts, or the
Applicable at the time of Visa Application. a. a non-lawyer (such as a notario, relative, or a travel agency) not
unauthorized employment, such as those permissible under 9 FAM 402.2-5(E), and you should clarify an applicant's
study at such school does not exceed 12 months; and. But see Patel v. U.S. Atty Gen., 971 F.3d 1258 (11th Cir. The burden of proof falls on the applicant to rebut your finding of a
misrepresentation. Citizenship. 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. will result in the individual's deportation or removal from the United States. 1182(a)(6)(B)); INA 212(a)(6)(C) (8 U.S.C. possession of a valid passport. Nevertheless, for visa adjudication, the order must be considered final
An AO is required in the following cases and must be submitted
ineligibility that are not permanent, and which might be removed by operation
212(a)(6)(C)(i)'s materiality test if the relief from the ineligibility is by
The Board of Immigration Appeals has defined timeliness as a question of whether the immigrant retracted his false statement before its falsity had been or was about to be exposed. (a) (U) If an applicant was
(U) Visa Application and
or employment letter which are not strictly required to qualify for a B visa,
significance to the applicant's eligibility for a visa. %%EOF
smuggler might be found ineligible are numerous. determining that an individual had the intent to deceive an officer and that
was willfully made (see 9
potential INA 212(a)(6)(B) ineligibility; however, if you have a question about
that ineffective assistance of counsel was the cause of the individual's
8 USCIS-PM K - Part K - False Claim to U.S. Waivers for Immigrants. See Volume 12, Citizenship and Naturalization [12 USCIS-PM]. hearing, there is a mechanical breakdown of an automobile leaving the individual
(3) (U) Aiding an individual
you find that they were aware at the time of the misrepresentation made on their
See, e.g. vote in a Federal or State election would be ineligible under INA
Therefore, the noncitizen was inadmissible for falsely claiming U.S. and that even if she made a false claim to U.S. citizenship, she made a timely retraction. fails or refuses to attend or remain in attendance at proceedings to determine
(U) An individual who
b. the AO, describe the form submitted to DHS by the visa applicant and the nature
Silence or the failure to volunteer
to a "misrepresentation which tends to shut off a line of inquiry which is
In other words, the information
refused a visa would not be considered material unless the misrepresentation
In Matter of K, the BIA said the generic waiver for fraud or misrepresentations, then found at INA 241 (f), could be used to waive specific types of fraud, including a false claim to U.S. (U) INA 212(a)(6)(C)(i) provides
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]. any individual who is a stowaway is ineligible. The effect of a timely retraction is that the misrepresentation is eliminated. review all 6C1 findings of ineligibility under the 90-day rule. a willful, material misrepresentation since the applicant was trying to qualify
being admitted to the United States, engage in activities for which a change of
But see Patel v. U.S. Atty Gen., 971 F.3d 1258 (11th Cir. benefit. or DHS, a prospective employer to circumvent INA 274A, or any other relevant
only status-compliant activity were willful misrepresentations of their true intentions
The false claim was complete when the noncitizen submitted the Form I-9, registered to vote, or sought the other benefit. (2) (U) If you are satisfied
knowingly to encourage, induce, or assist an individual to enter
in such status, including, but not limited to: (i) (U) Engaging in unauthorized
Does a statutory exception apply to the individual? through
1541-46. b. ineligibility under INA 212(a)(6)(C)(i), if
SeeCrocock v. Holder, 670 F.3d 400, 403 (2nd Cir. registering to vote in a local, state, or federal election when prohibited from doing so, checking "U.S. citizen" on an I-9 Employment Eligibility Verification form, claiming to be a U.S. citizen on a student loan application, attempting to obtain a U.S. passport, and. Material Fact. (3) (U) The individual
documents as: (b) (U) Border crossing
If the non-citizen in this case 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. have been satisfied: (1) (U) There has been an
the burden of establishing the true facts and bears the risk that uncertainties
Similarly, an applicant who has self-petitioned
[8]The noncitizen, however, may be inadmissible forfraud or willful misrepresentationif all other elements for that ground are met. Looking for U.S. government information and services? The applicant bears
(U) An individual may transfer
(U) All individuals, including LPRs
Reimbursement. the interpretation of "material misrepresentation., 9 FAM 302.9-4(B)(3) (U)
attendance at, a hearing to determine inadmissibility or deportability is
PDF U.S. Citizenship Non-Precedent Decision of the and Immigration Services a returning resident under INA 211(b); or, (2) (U) The individual is
The purpose may also be something more positive. In other words, to find an applicant ineligible
XIV. requires an affirmative act taken by the individual. the 90-day rule; the individual must also engage in conduct inconsistent with
h. (U) Rebuttal Burden is on the Applicant:
"Readily available" means that you were aware of it at the time
Several courts have dealt with the issue explicitly. facts materiality test. Concerning Previous Visa Applications: (U) Electronic System for
c. (U) On December 6, 2014, the DHS
persons determined by an administrative law judge to have been involved in
shut off a line of inquiry which is relevant to the alien's eligibility and
[^ 37]SeeMatter of Quilantan (PDF),25 I&N Dec. 285 (BIA 2010). 2020) (en banc) (holding that a false claim to U.S. citizenship does not have to be material in order to result in inadmissibility). It is very serious to be charged with making a false claim to citizenship. (b) (U) Misrepresentations
SeeMatter of Richmond,26 I&N Dec. 779, 786-87 (BIA 2016). who attempted or achieved entry to the United States before September 30, 1996,
employee in a Form I-140 petition, who
1324c). retraction that is timely and voluntary may serve to purge a misrepresentation
demonstrates that they were in Federal or State custody and the failure to
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. misrepresentation of the fact that the applicant previously applied for or was
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