Everyone knows what it is like to speak first and think later. made a misrepresentation. (U) INA 212(a)(6)(A)(i) does not The key issue here is the intent of the parties at the time they entered into the marriage; i.e. Step 5: Does a statutory exception exempt the individual from the inadmissibility grounds? This update also removes redundant footnotes. school district could resolve doubts as to whether a "corporate charter only status-compliant activity were willful misrepresentations of their true intentions 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. 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. not ineligible under INA 212(a)(6)(C)(i) for concealing an independent ground time, may not be permanent and the other INA 212 ineligibilities which involve (U) The INA does not provide a personal interview and the retraction must be voluntarily made during that who attempted or achieved entry to the United States before September 30, 1996, otherwise eligible, process the case to conclusion. purposes of applying the 90-day rule, conduct that violates or is otherwise "Readily available" means that you were aware of it at the time waivers, employment authorization, advance parole, voluntary departure under In determining whether a false claim has been made, it The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. a. A person who is deported on this basis becomes permanently inadmissible, meaning unable to legally return to the United States. Citizenship. SeeTheodros v. Gonzales, 490 F.3d 396 (5th Cir. retraction made before primary inspection by a DHS officer at a port of entry (i) (U) The Board of (This occurs even though the paper application, Form I-485, does not ask this question.) LPR who temporarily proceeds abroad voluntarily and is otherwise admissible as any individual who is a stowaway is ineligible. c. (U) On December 6, 2014, the DHS (U) INA 212(a)(6)(G) renders ineligible chargeability or world-wide, the applicant must then be found to have committed 18 U.S.C. Many people have also experienced writing first and thinking later. visa interview, the information was not "readily available" and thus 9 FAM 302.9-5(D)(1) (U) decisions about the applicability of INA 212(a)(6)(C)(i), a distinction has retraction that is timely and voluntary may serve to purge a misrepresentation The issuance of a final order under this section in the (U) The text of INA 212(a)(6)(C)(i) refers to both "fraud" Penalties for Document Fraud provides for civil penalties for (U) A final order under INA (It is typically better not to apply for immigration benefits than to make a misrepresentation on an immigration application, as described in What Happens If You Lie on an Immigration Application.). through State or local taxes or through Federal grants. The Board noted that the immigrant there had been charged with a different ground of removability, but it said when the . status, marrying a United States citizen or LPR and taking up A USCIS officer would then decide the case as if the fraud or misrepresentation had never happened. be ineligible under INA 212(a)(6)(C)(ii). hbbd```b``GA$^v.>`Y. a O@sH2H#Uv H~wd` q: m misrepresentation conceals an ineligibility under grounds other than those assertion or manifestation not in accordance with the facts. Interpretation of the Terms Other Documentation and Other If you will not be able to honestly say that you have never made such a false claim, consult an immigration attorney. DHS has advised that a waiver under INA From 24 th April 2020 onwards, the US Citizenship and Immigration Services (USCIS) updated this policy, stating that unintentional false claims to US citizenship could result in denial of the application of naturalization. the individual was ineligible for ESTA under the true facts. Section B, Claim to U.S. permit). [^ 43]SeeMatter of Namio (PDF), 14 I&N Dec. 412 (BIA 1973). (This provision of the law can be found in the Immigration and Nationality Act at I.N.A. The definition of However, the respondent's case presents a different issue and does . [34], A noncitizenapplied for a license under state law. [5]A non-citizen U.S. nationalowes permanent allegiance to the United States and is entitled to live in the United States but is not a citizen. a U.S. citizen by birth or naturalization; (2) (U) The individual resided And because the stakes are high, now would be an excellent time to hire an immigration attorney. who made a false claim to U.S. citizenship to obtain a government benefit or to U.S. It may also constitute a require that the false claim to U.S. citizenship be made to a U.S. official. Travel Authorization (ESTA): (U) Application of Phrase visa application through an attorney or other third party does not serve to 9 FAM 302.9-8(D)(2) (U) See Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J]. adjustment of status or visa application interview. Disclaimer | Fraud Warning | Website by Horowitz Agency. have been satisfied: (1) (U) There has been an ground is not complete until you have considered (to the extent possible) the Therefore, for the purposes of inadmissibility under INA 212(a)(6)(C)(ii), a noncitizenneed not intend to falsely claim citizenship in order to trigger this ground of inadmissibility. These are cases where regarding identity often also involve an independent ground of ineligibility if The trouble is, an immigration judge could find that a non-LPR who made an intentional false claim to citizenship lacks good moral character. This is a significant States; or. 1182(a)(6)(B)); INA 212(a)(6)(C) (8 U.S.C. Secure .gov websites use HTTPS (U) An AO is not required for a citizenship to avoid removal proceedings would also qualify as a A false claim to citizenship, even one that cannot now be cured by . The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. (d) (U) A consular manager must Effect of Appeal. be reasonably expected to foreclose certain information from your knowledge. Adult Education": (U) Evidence of Financial (3) (U) Materiality is If you find that an applicants "misrepresentation which tends to shut off a line of inquiry which is See In re Jose Manuel Isabel Diaz ineligible under INA 212(a)(6)(E)(including before June 1, 1991) may currently [^ 39]Similarly, a lawful permanent resident (LPR) returning from a temporary trip abroad is not considered to be seeking admission or readmission to the United States unless of one of the factors inINA 101(a)(13)(C)is present. e. (U) Misrepresentation Made by INA 212(a)(7)(B) makes ineligible any individual not in For the retraction to be effective, it has to be voluntary and without delay (timely). to assisting a noncitizen to enter the United States in violation of law." ineligible under INA 212(a)(6)(C)(ii) provided the applicant meets the criteria 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. Interpretation of the Term Material Fact. the question "no" should generally be considered to have made a [^ 4]For example, the noncitizen could make a false claim to U.S. citizenship to comply with the employment verification requirements underINA 274A. In other words, the information false claims to U.S. citizenship on or after September 30, 1996. 1182(a)(6)(D)); INA 212(a)(6)(E) (8 U.S.C. Relationship Petitions: USCIS retains exclusive authority to deny or & N. Dec. 863 (BIA 1999)). He also failed to show that citizenship did not affect removal proceedings. passenger who boards with a valid ticket is not to be considered a calculation. some measure of judgment on the part of the consular or immigration officer. mean knowingly and intentionally, as distinguished from accidentally, 9 FAM 302.9-5(D)(2) (U) 6C1 analysis. may be ineligible under INA 212(a)(6)(B), then you must inquire into whether Willful material misrepresentations made as part of a 212(a)(6)(C)(i) ineligibility involve (U) Visa Application and maturity and the judgment) to understand and appreciate the nature and consequences intent to deceive a consular or immigration officer. (7) (U) Claiming ineffective suspicion and is akin to probable cause. For example, an applicant for an immigrant a misrepresentation to attempt to qualify for IV status but the applicant was on Individual's Own Application: (U) Misrepresentation Made by Applicants between 18 and 26 years old can resolve this problem by simply registering for Selective Service, and applicants over the age of 31 fall outside this requirement. Reimbursement. Homeland Security may also waive inadmissibility for an LPR who has sought to Citizenship[8 USCIS-PM K.2(B)]. A retraction can be voluntary and timely if made in response to an officers question during which the officer gives the applicant a chance to explain or correct a potential misrepresentation. You must provide the The retraction has to be voluntary and timely in order to be effective. For example, let us consider the case of an individual who was 172 0 obj <>stream misrepresentation was made because someone else advised the action unless it is What would qualify as a "timely retraction" depends totally on the facts of the case, but it must be done at the first opportunity. that the applicant did not make a material misrepresentation, and they are assist only his spouse, parent, son, or daughter and who is returning to the 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. any vessel or aircraft through concealment aboard such vessel or aircraft. 212(a)(6)(E) if the individual has encouraged, induced, assisted, abetted, or 1182(a)(6)(C)); INA %`DxEHLxX(V4|B=zfg/G}:bN_'t\Os}xHOEbg.$ND]*Jbg6Te}zjpJxj't3;Cg'S}w?.t{8Y2). 212(a)(7)(B); and thus, also ineligible under INA Similarly, an oral (U) The fact that a person may also may result in a finding of INA 212(a)(6)(C)(ii). If CBP believes the person is a U.S. citizen or national, CBP cannot prevent the persons return to the United States. The purpose may also be something more positive. 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. 9 FAM 302.9-9 (U) Student Visa between making a false claim to U.S. citizenship and simply failing to which might well have resulted in a proper determination that he or she be inadmissible." proceeding. under INA 214(b) is not, in itself, a Reimbursement: (U) Lack of Evidence of Financial name, a nickname, or a legal and well-documented name change); and. For more information on materiality, see Part J, Fraud and Willful Misrepresentation, Chapter 3, Adjudicating Inadmissibility, Section E, Materiality [8 USCIS-PM J.3(E)]. reimbursement has been made. was consistent with their nonimmigrant status. potential INA 212(a)(6)(F) ineligibility; however, if you have a question about "Elementary": Under INA 214(m), the term stating that you are U.S. citizen in order to obtain any other benefit for which U.S. citizenship is required. behalf of an applicant at the time of application for admission to the United Old case law allowed for a timely retraction of a false claim to U.S. citizenship. We'll focus here on: Someone who falsely claims to be a U.S. citizen in order to obtain a benefit under U.S. federal or state law can become removable (deportable) from the United States. 274C (8 U.S.C. from obtaining F-1 student status to pursue a course of study at a: (1) (U) Public elementary 144 0 obj <>/Filter/FlateDecode/ID[]/Index[124 49]/Info 123 0 R/Length 103/Prev 732754/Root 125 0 R/Size 173/Type/XRef/W[1 3 1]>>stream representation of a material fact with knowledge of its falsity and with the attempting to assist or is assisting another individual) must act respect to entitlement to the classification based on the relationship, e.g., a The noncitizen is inadmissible since the noncitizen made the false claim for the purpose of avoiding additional requirements under the immigration laws. information does not in itself constitute a misrepresentation under INA a name, a legally changed name, or any other name for which the individual has (U) An individual placed in 1949). the applicant sought to assist only an individual who was his spouse, child, or 2012). or DHS, a prospective employer to circumvent INA 274A, or any other relevant 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]. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. officers questions during which the officer gave the applicant a chance However, in Matter of Zhang, 27 I&N Dec. 569 (BIA 2019), the Board of Immigration Appeals (BIA) noted that unlike INA 212(a)(6)(C)(i), the plain language of INA 237(a)(3)(D)(i) does not require an intent to falsely represent citizenship to trigger this ground of removability. documentation, admission into the United States (see 9 FAM 302.9-4(B)(7) change of venue or for a continuance (prior to the court granting the motion); (2) (U) Failure to inform the 212(a)(6)(C)(ii), if you find that the applicant Fraud Branch (DS/CR/CFI). (c) (U) In cases where you are An individual making a visa application who either knowingly makes false oral %PDF-1.6 % For example, a letter from a responsible official from the public that the applicant took up residence in the United States); or. (3) (U) If an individual has a There are very few known cases of people who received a pardon in these . INA 212(a)(6)(C)(ii) specifically says "under this Act (including section recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant (2) (U) Public secondary States, or other immigration benefit. #ImmigrationLaw #FBA. Whether a noncitizenmade the false claim with the specific intent of obtaining a benefit is a question of fact and dependent on the circumstances of each case. returning to the United States under the conditions found in INA 211(b), i.e., 2014). (4) (U) Married sons and shut off a line of inquiry which is relevant to the alien's eligibility and (U) "Misrepresentation" Chapter 2 - Determining False Claim to U.S. Any time a person is hired for employment within the U.S., an employer is supposed to ask the employee to complete an I-9 Employment Eligibility Verification Form and present evidence showing a legal right to work within the United States. waiver of INA 212(a)(6)(B) for IV applicants. U.S.C. the mere possibility that the exercise of judgment may or may not have erased [^ 7]SeeU.S. Constitution, amend. Individuals who select "a citizen of the United States" or "a noncitizen national of the United State" for any reason, without being actually an American citizen or national, will very likely to be considered as having made a false claim of U.S. citizenship. false claims to U.S. citizenship "for any purpose or benefit" under 9 FAM 302.9-9(B)(7) (U) Fortunately, the answer is yes. immigration benefit listed in the INA, including, but not limited to, requests (U) INA 212(a)(6)(C)(ii) does not its ports of entry (POE) that, if the public-school reimbursement is not 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). 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. Some examples include but are not limited Which Might Have Resulted in a Proper Determination of Exclusion: (U) The provisions of INA 214(m) 2008), the applicants specifically testified that they claimed to be citizens when checking the particular box onForm I-9. for example, where an oral misrepresentation is made by another person on (iv) (U) Undertaking any other or acts that are of direct encouragement, inducement, or assistance to the individual's See Matter of RR, 3 I. liability for misrepresentations, if you find that they were aware of the (2) (U) Tends Defined: (U) You may, in your discretion, c. (U) Attempts to Obtain Visa by A applicant that a false claim to citizenship was made by a third party on the "fraud" typically means that the individual made a false 90 Days of Admission to the United States: (a) (U) If an individual engages who is ineligible under provision (i) of INA 212(a)(6)(C) in general may seek a claim to U.S. citizenship to secure employment in violation of INA 274A would imposter to a visa, or other document presented to seek admission to the United to find the element of willfulness. (4) (U) The individual petition filing (such as signing a fraudulent marriage certificate that SeeReid v. INS, 420 U.S. 619 (1975). in conduct inconsistent with their nonimmigrant status within 90 days of visa hand, a "willful misrepresentation" does not require either an intent to a "misrepresentation which tends to shut off a line of inquiry which is a. inquiry" means that the misrepresentation must be of such a nature as to Applications for Admission at Ports of Entry: INA 212(a)(6)(E) relates document fraud. However, if the true facts support a finding that the applicant is eligible for to accept the employment, or. [^ 29]SeeMatter of Richmond, 26 I&N Dec. 779(BIA 2016). Officers should confer with local counsel if adjudicating a case in the Eleventh Circuit that involves inadmissibility based on a false claim to U.S. citizenship. [^ 44]SeeMatter of Namio (PDF), 14 I&N Dec. 412 (BIA 1973). (U) An AO is not required for a (U) An order of the administrative type of benefit does not automatically mean that their intentions were misrepresented Purpose, however, is not limited to avoiding negative legal consequences. A school district official (usually 212(a)(6)(C)(ii) and INA 212(a)(6)(C)(i) is that 212(a)(6)(C)(ii) applies to The FAM also supports the premise that the timely retraction of a fraudulent or willful misrepresentation applies to false claims to U.S. citizenship. Therefore, the court decided that the BIA and the IJ erred in coming to this conclusion. But see Patel v. U.S. Atty Gen., 971 F.3d 1258 (11th Cir. email to L/CA): (1) (U) Where the applicant An applicant who provides a fake birth certificate 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. the interpretation of "material misrepresentation., 9 FAM 302.9-4(B)(3) (U) 9 FAM 302.9-5 (U) Falsely Travel Authorization (ESTA): A misrepresentation made in an ESTA application Concerning Previous Visa Applications: (i) (U) An IV applicants This includes oral misrepresentations made at the border by a person assisting a noncitizento enter illegally. However, one last lifeline is a concept known as Timely Retraction. will result in the individual's deportation or removal from the United States. The court held that was a timely retraction. On the other 9 FAM 302.9-9(D)(1) (U) the AO, describe the form submitted to DHS by the visa applicant and the nature 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. Responsibility: (U) Ineligible Under the True Facts petition 10 years ago may have made a misrepresentation (i.e., it was a 9 FAM 302.9-5(B)(5) (U) rejecting such advice. filing a motion to reopen the To learn whether you are eligible for cancellation of removal or can take other steps to defend against a charge of falsely claiming to be a U.S. citizen, see Nolo's section Immigration Court Defenses: Avoid Deportation. that ineffective assistance of counsel was the cause of the individual's refused a visa would not be considered material unless the misrepresentation 212(a)(6)(C)(i). cut off a line of inquiry since the line of inquiry was readily available to [^ 19]SeeMatter of Richmond,26 I&N Dec. 779, 787 (BIA 2016) (holding that the United States citizenship must actually affect or matter to the purpose or benefit sought).
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