When False Citizenship Claim May Be Excused

By Reuben S. Seguritan

August 13, 2014

Non-citizens must not make any false U.S. citizenship claims for any purpose or benefit, whether to obtain a visa, enter the United States, find employment, apply for public benefits, or to register for or vote in an election. A false U.S. citizenship claim carries with it serious consequences which include deportation and a lifetime bar to permanent residency in the U.S.

Before the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) was enacted in September 30, 1996, a false claim to citizenship was a ground for inadmissibility if it was willful and material.

The false claim must have been made to a U.S. consular officer or immigration officer and for the purpose of obtaining an immigration benefit. Misrepresentations made to a private individual, such as an employer, were not covered. A discretionary waiver was available to the foreign national who was found to have misrepresented himself as a U.S. citizen.

Since September 30, 1996, however, a waiver is no longer available to foreign nationals who are found inadmissible for making false U.S. citizenship claims. Once a non-citizen found inadmissible on this ground, he is forever barred from applying for permanent residence.

Also, the false claim is no longer limited to obtaining immigration benefits. An individual found to be misrepresenting himself to be a U.S. citizen “for any purpose or benefit” triggers the permanent bar.

Until recently, there were only two exceptions to the permanent bar. First is when the false citizenship claim was made before September 30, 1996. Under this exception, an undocumented immigrant who upon application for adjustment of status is found to have represented to his employer that he is a U.S. citizen in 1988, for example, may still apply for a discretionary waiver.

The second exception applied to those who made a false claim under a “reasonable belief” that they were in fact U.S. citizens. However, this exception is limited to individuals who became lawful permanent residents before age 16 and whose parents were both U.S. citizens. This exception is also available in cases of illegal voting, which can be considered another mode of falsely claiming to be a U.S. citizen.

The Department of State (DOS) and Department of Homeland Security (DHS) clarified as to when an adjudicating officer should find a foreign national inadmissible for making false U.S. citizenship claims. They explained that a foreign national may be found inadmissible on this ground only if the false claim was made “knowingly.”

Furthermore, the agencies stated that the foreign national may put up an affirmative defense that: one, he was under the age of 18 when he made the false claim and, two, at that time he lacked the capacity to understand the nature and consequences of the false claim. A foreign national who made the false claim may avoid the permanent bar if he can establish these elements clearly and beyond doubt.

The new guidance is directed primarily to individuals under 18 who may have made false claim to U.S. citizenship before they were old enough to discern the consequences of their actions. However, the new policy does not specifically limit its applicability to minors and could even include adult non-citizens who can prove that the false claim to U.S. citizenship was not made “knowingly.”