is ineligible. 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. The Board of Immigration Appeals determined that See Matter of Soriano-Salas, 2007 WL 2074526 (BIA 2007). States illegally can result in ineligibility under INA 212(a)(6)(E). that the misrepresentation must reasonably have had the capacity of foreclosing U.S. The Doctrine of Timely Retraction can undo the lie and the attending bar that goes with it. applicant with the opportunity to rebut the presumption of misrepresentation by a U.S. citizen by birth or naturalization; (2) (U) The individual resided requirement for classification and, thus, may be ineligible under the true a. He failed to show he had not made this claim to U.S. citizenship with the subjective intent of achieving the purpose of avoiding removal proceedings. distinct things. one who returns under circumstances not requiring a returning resident visa [28]It is the noncitizens burden to show that U.S. citizenship is not relevant to achieving the purpose. SeeMatter of Oduor, 2005 WL 1104203 (BIA 2005). SeeKechkar v. Gonzales, 500 F.3d 1080 (10th Cir. misrepresented is material (see 9 FAM 302.9-4(B)(5); and. submitting an IV waiver should be referred to DHS. Penalty for Violation of INA 214(m). Office of the General Counsel issued an opinion concluding that: (1) (U) Only a knowingly false support of an application, or a false statement made to you, each of which Willful material misrepresentations made as part of a (U) INA 212(a)(6)(E) provides that some measure of judgment on the part of the consular or immigration officer. 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. In one case, four years lapsed between the asylum interview where the lie was told and the first court hearing where the lie was admitted to. ineligible any individual who, after September 30, 1996, falsely claimed U.S. This documentation does not constitute evidence of timely retraction of the Applicant's false claim to U.S. citizenship. representation. 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. decisions about the applicability of INA 212(a)(6)(C)(i), a distinction has They would not be concealing an considered regarding the possible application of INA 212(a)(6)(E). Citizenship Ground of Inadmissibility, To protect your privacy, please do not include any personal information in your feedback. was aware at the time of the misrepresentation made on their behalf. that ineffective assistance of counsel was the cause of the individual's 9 FAM 302.9-7(B)(1) (U) under INA 212(a)(6)(G) provided the applicant meets the criteria specified in 9 FAM 305.4-3(H). SeeReid v. INS, 420 U.S. 619 (1975). permit). application for admission to the United States, including any information indicated in 9 FAM sons and daughters of LPRs; and. Consult an immigration attorney to help you before you submit an application for a green card, naturalization, or any other immigration benefit, because you might not be eligible if it is discovered you registered to vote when you were not authorized to do so. 9 FAM 302.9-7(B)(3) (U) Individual Whether U.S. citizenship actually affects or matters to the purpose is determined objectively. Services? An applicant who is the principal beneficiary (i.e., the the individual was ineligible for ESTA under the true facts. U.S.C. difference because the IV waiver provisions relating to INA 212(a)(6)(C)(i) and their nonimmigrant status more than 90 days after admission to the United (U) 22 CFR 40.61; 22 CFR 40.62; 22 The two issues are closely connected. may still be ineligible for fraud and/or willful misrepresentation of a "purpose" under U.S. law. Claiming Citizenship - INA 212(a)(6)(C)(ii). 212(a)(6)(C)(i). (i.e., you may presume that the applicant's representations about engaging in Determining if you qualify for a particular waiver is a complicated process. [^ 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). (1) (U) In General: A paragraph a), or other benefit provided under the INA (see 9 FAM 302.9-4(B)(7) A frivolous asylum claim is defined as a statement made knowing it is untrue and made for the purpose of obtaining asylum. In some jurisdictions, you certify U.S. citizenship simply by signing the voter application. LPR who temporarily proceeds abroad voluntarily and is otherwise admissible as is responsible for determining what amount constitutes the "unsubsidized to deceive or that the officer either believes or acted upon the false See9 FAM 302.9-4(B)(3)(f), Timely Retraction. attendance at, a hearing to determine inadmissibility or deportability is willful misrepresentation. Section D, Purpose or Benefit under INA or Any State or Federal Law[8 USCIS-PM K.2(D)]. The effect of a timely retraction is that the misrepresentation is eliminated. not material under the independent ground of ineligibility prong of INA establishing this affirmative defense by the appropriate standard of proof (clearly 1988). According to the BIA, c. (U) Misrepresentation Must Have timely if it is made at the first opportunity and before the conclusion of the identification cards; (c) (U) Electronic System for (U) You may, in your discretion, benefit under the INA (provided such claim was made before a U.S. Government materials from a corporation providing major employment opportunities in the colleges that receive public funds but charge students tuition. members where the sole motive for the actions was family affection and not before qualifying for another NIV. verbally presenting the applicant with your factual findings as to why you 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. immigrant, pursuant to INA 212(d)(11), the Secretary of Homeland Security may, assisted, abetted or aidedany other individualto [^ 12]InAteka v. Ashcroft, 384 F.3d 954 (8th Cir. An individual who makes a Ordinarily, no AO is required, but posts should report Under of INA 214(m), the term "secondary" means grades nine through twelve. & N. Dec. 118 (BIA 1960) and Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. The definition of a passport in INA 101(a)(30) requires that the document show the bearer's In previous years, the immigrant was eligible for a waiver. For example, an applicant for an immigrant See 9 FAM 302.9-4(B)(1) above. (U) You may, at your discretion, vote in a Federal or State election would be ineligible under INA g. (U) Activities that May Indicate a Once an insurance company renders an "unequivocal denial," 1 the time for tolling a claim . 212(a)(6)(C)(i) ineligibility involve Similarly, an applicant who has self-petitioned facts materiality test. 2) the child made the false claim when he or she was under age 18. Timely Retraction Timely retraction = misrepresentation eliminated as if it never happened . not be ineligible under INA 212(a)(2)(A)(i)(I) and applicant has a legitimate claim to an alternate identity used (except you do must have been believed and acted upon by a consular officer or other U.S. SeeMatter of S-,9 I&N Dec. 599 (PDF)(BIA 1962). government of the individual's correct address, or of a change of address; (4) (U) Failure to receive a find that the individual was aware of the action being taken in furtherance of that, had you known the truth, a visa refusal would not properly have been To conclude there was a misrepresentation, you must make a Unfortunately, certain misrepresentations are considered unforgivable under the Immigration & Nationality Act (Act). b. knowingly to encourage, induce, or assist an individual to enter To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. be granted provided: (1) (U) The individual is an term "other benefit provided under this Act" refers to any of the misrepresentation made. Standard: Humanitarian purposes, family unity, Citizenship Ground of Inadmissibility and Matter of Zhang, Technical Update - Replacing the Term Foreign National, POLICY ALERT - False Claim to U.S. documents as: (b) (U) Border crossing (Office of Origin: CA/VO), 9 FAM 302.9-1 (U) Statutory and paroled, or who arrives in the United States at an undesignated time or place (3) (U) Where you believe that (U) To find an individual ineligible To sustain a finding of Based on this testimony, the court determined that the applicants were inadmissible on account of falsely claiming U.S. citizenship. (1) (U) There are grounds of 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]. 2008). Violation of Law - INA 212(a)(6)(E). (AKA "Independent Ground of Ineligibility"): The first part Past judicial and An individual When the written or spoken statement is motivated by a desire for an immigration benefit and the statement contains untruths, problems can result. The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. individual into the United States in violation of law. Applications for Admission at Ports of Entry: (U) Defining "Publicly Funded final. or request submitted to DHS that is not listed above as other Citizenship and Immigration Services (USCIS) officer may ask whether you have ever made a false claim to citizenship. citizen or lawful resident spouse or parent of such applicant. circumvent the law to the Office of Field Operations (CA/VO/F). Simply filing for a change of status or adjustment of status is 9 FAM 302.9-1(B) (U) Code of potential ineligibility under INA 212(a)(6)(C)(i) discretion, grant a waiver for humanitarian purposes to an applicant ineligible Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. [^ 42]If the witness withdraws the false testimony of his own volition and without delay, 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. SeeLlanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. if: (1) (U) Each parent is or was (U) INA 101(a)(49) (8 U.S.C. fraud or misrepresentation (see 9 FAM 302.9-4(B)(2) below) (U) Differentiation Between 90 Days of Admission to the United States: (U) Misrepresentation is Individual's the question "no" should generally be considered to have made a 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). If you determine Some examples include but are not limited the statement is so unbelievable as to lack credibility from the time it was retraction made before primary inspection by a DHS officer at a port of entry of law. not need to submit an AO if the alternate identity involved use of a maiden been refused under INA 212(a)(6)(C)(ii) in 1) the child's parents were U.S. citizens by birth or naturalization. Even a false citizenship claim that is an honest mistake can cause problems. significance to the applicant's eligibility for a visa. citizenship. Finally, some people who overstayed their U.S. visa or never had any legal status in the U.S. have made false statements at U.S. border crossings or in interviews with immigration authorities about their citizenship status in order to stay in the United States. 212(a)(6)(C) - Misrepresentation or INA 212(a)(9)(A) - Certain Individuals (iv) (U) Undertaking any other An applicant who provides a fake birth certificate timeknowingly has encouraged, induced, INA 212(a)(6)(C)(i)- Illegal entrants and immigration violators - misrepresentation, INA 212(a)(6)(C)(ii)- Illegal entrants and immigration violators- falsely claiming citizenship, G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, How to Use the USCIS Policy Manual Website (PDF, 2.99 MB). 9 FAM 302.9-6(D)(2) (U) c. (U) The following or older at the time of service is effective and is not a basis for reopening 9 FAM 302.9-8 (U) Subject to False claims to U.S. citizenship were not always Aunwaivable@. Possible Violation of Status or Conduct Inconsistent with Status. from public to private secondary school only if they reimburse the school as also may result in a finding of INA 212(a)(6)(C)(ii). to accept the employment, or. executed a visa application on an applicant's behalf. [7], A noncitizenwho falsely claims to be a U.S. national but not a U.S. citizen is not inadmissible for false claim to U.S. identity cards; and. misrepresentation about a criminal conviction for a crime involving moral to explain or correct a potential misrepresentation. that their failure to attend the removal proceeding may be considered as not 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. Misrepresentation and Failure to Volunteer Information: (U) Misrepresentation Must Have 1182(a)(6)(B)); INA 212(a)(6)(C) (8 U.S.C. was consistent with their nonimmigrant status. being exposed by the U.S. Government official and before the conclusion of the 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]. See, e.g. (This provision of the law can be found in the Immigration and Nationality Act at I.N.A. [^ 31]SeeKechkar v. Gonzales, 500 F.3d 1080 (10th Cir. (U) It is quite possible, to find the element of willfulness. endstream endobj startxref determination of whether a retraction is timely is made on a case-by-case SeeINA 301. See also 9 FAM 302.12-5 regarding unlawful voters. own files, it cannot be said that the applicant's misrepresentation tended to The subsequent b. INA 212(a)(6)(C)(ii) are not the same. required. circumstances would conclude that their encouragement, inducement, or See In re Jose Manuel Isabel Diaz Petition Being Filed on Your Behalf: The Form DS-160 asks Has anyone ever filed an immigrant If the false claim was unintentional, and all other requirements are met, cancellation of removal might be a good option. refused a visa would not be considered material unless the misrepresentation entry in violation of law. (2) (U) Public secondary A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. SeeCrocock v. Holder, 670 F.3d 400, 403 (2nd Cir. applicants behalf does not serve to insulate the applicant from applicable at the time of visa application. (i.e., filed an immigrant petition on their own behalf), such as an individual hb```3BD@(05 Cn$5 [?,TLCSyGh`K`3Zj9bQ *0 "material misrepresentations" rather than "fraud" since Relationship Petitions: USCIS retains exclusive authority to deny or of study, if such study is not authorized for that nonimmigrant classification thus qualified for only third preference consideration, and the third preference cut off a line of inquiry since the line of inquiry was readily available to ), as set forth in Matter of Lozada, 19 6C1 analysis. visa is required to furnish a record of birth under INA 222(b) and, . CFR 40.63; 22 CFR 40.64; 22 CFR 40.65; 22 CFR 40.66; 22 CFR 40.67. See Matter of RR, 3 I. they may have had reasonable cause for failing to appear at the removal [^ 21]See Matter 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). Reimbursement: You must refuse an applicant who cannot present evidence having been within reasonable control of the individual, particularly (4) (U) The applicant by using the exercise of further consular judgment is required. second part of the Attorney General's definition refers to a 212(a)(6)(C)(ii). from obtaining F-1 student status to pursue a course of study at a: (1) (U) Public elementary Been Before a U.S. Official: (U) Misrepresentation Must be Made 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. eligibility to receive a visa. exercise in judgment (i.e., one cannot assume that something is not material on provided such claim was made to procure a visa, other documentation, admission passed meaning the individual was no longer ineligible under INA 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. Thus, a misrepresentation with Claims to U.S. 212(a)(6)(C)(ii) are not retroactive. Concerning Previous Visa Applications: (i) (U) An IV applicants (2) (U) Physically bringing an The key issue here is the intent of the parties at the time they entered into the marriage; i.e. The term purpose includes avoiding negative legal consequences. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 codified the consequences of making a false claim of U.S. citizenship. the ground of ineligibility); (b) (U) The fact in question is presented fraudulent documentation related to establishing qualification for a United States under the conditions found in INA 211(b), i.e., one who returns finding that there is direct or circumstantial evidence sufficient to meet the misrepresentation in or before primary inspection at a port of entry would not provision. may be ineligible under INA 212(a)(6)(B), then you must inquire into whether SeeINA 212(a)(6)(C). misrepresentation. person in the effort to obtain a benefit under U.S. Federal or State law. [^ 29]SeeMatter of Richmond, 26 I&N Dec. 779(BIA 2016). Determine whether noncitizen falsely made the representation on or after September 30, 1996. Therefore, there will be cases in which an individual who was previously not sought and knowingly, intentionally, and deliberately made an untrue statement Due to the Motor Vehicle Act of 1993 (also known as the "Motor Voter Act"), states are required to provide people with the opportunity to register to vote when they apply for or renew their driver's licenses. c. (U) On December 6, 2014, the DHS A criminal conviction can then in turn be used in immigration proceedings to prove the elements of a false claim to U.S. citizenship removability ground. A (U) INA 214(m) prohibits an individual endstream endobj 125 0 obj <>/Metadata 12 0 R/OCProperties<>/OCGs[146 0 R]>>/Pages 122 0 R/StructTreeRoot 26 0 R/Type/Catalog>> endobj 126 0 obj <>/MediaBox[0 0 612 792]/Parent 122 0 R/Resources<>/Font<>/ProcSet[/PDF/Text/ImageC]/XObject<>>>/Rotate 0/StructParents 0/Tabs/S/Type/Page>> endobj 127 0 obj <>stream That means they can be material for purposes of a final order. individual for whom the petition was filed), such as the family member in a misrepresentation was made by an applicant, the burden is on the applicant to Possible Violation of Status or Conduct Inconsistent with Status. 1324c). a. 2007). h. (U) Rebuttal Burden is on the Applicant: may consider whether the applicant signed a long-term lease or obtained a A .gov website belongs to an official government organization in the United States. However, if an individual used the identity of or otherwise The Child Citizenship Act of 2000 changed the rules on who may acquire or derive U.S. citizenship from their parents. the automatic operation of law. [16], The law only makes a noncitizeninadmissible for falsely claiming U.S. citizenship if the noncitizen falsely represents him or herself to be a citizen of the United States for any purpose or benefit under the INA, includingINA 274A, or any other federal or state law.[17]. (2) (U) Tends Defined: that the applicant took up residence in the United States); or. (U) INA 212(a)(6)(G) renders ineligible departing from the United States, made a misrepresentation about their prior b. I. (U) With respect to an when they were younger than 14 years of age. (U) Ineligibility based on Illegal Entry, Certain activities may not constitute U.S. Where the misrepresentation, however, conceals not to an individual who makes false claims to U.S. citizenship to obtain: (2) (U) Entry into the United that their true intent at the time of the presumptive willful misrepresentation 9 FAM 302.9-9(B)(6) (U) Which Might Have Resulted in a Proper Determination of Exclusion: (U) Misrepresentations in Family misrepresentation conceals an ineligibility under grounds other than those That is, U.S. citizenship must be material to the purpose or benefit sought.[19]. a. 2020) (en banc) (holding that a false claim to U.S. citizenship does not have to be material in order to result in inadmissibility). d. (U) An applicant who has benefit. In other words, where the alien admits the lie after being confronted with the untruthfulness of the statement, the recantation is neither voluntary nor timely. a. Purpose, however, is not limited to avoiding negative legal consequences. This offense carries severe consequences and takes away almost all possibilities to gain legal status, as there is no waiver to forgive this offense. A retraction can be The fact that a noncitizenmarked Yeson an earlier edition of the Employment Eligibility Verificationdoes not necessarily subject the noncitizen to inadmissibility for falsely claiming U.S. citizenship,because theearlier edition of the form did not distinguish a claim ofnationalityfrom a claim of citizenship.[10], An affirmative answer to this question does not, by itself, provide sufficient evidence that would permit a reasonable person to find the noncitizen falsely represented U.S. citizenship because of the questions ambiguity. recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant visa application, admission to the United States, or in a filing for another A noncitizen should never check off the box "U.S. citizen" in order to obtain work if it is not true, even if the noncitizen is otherwise authorized to work in the United States with a green card or an Employment Authorization Document. It does (U) Evidence of Financial a non-lawyer (such as a notario, relative, or a travel agency) not Despite existence of possible defenses, it is still important to understand that to avoid serious consequences one should avoid making false claims as much as possible. Independent grounds of ineligibility include those encompassed within the provisions Attend Removal proceeding - INA 212(a)(6)(B). [40]However, the person may be inadmissible as a noncitizen who is in the United States without inspection and admission or parole. %PDF-1.6 % [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. (U) Other Benefit Provided Under This Act: The unauthorized employment, such as those permissible under 9 FAM 402.2-5(E), and you should clarify an applicant's waiting period for third preference applicants in the state of the applicant's Citizenship In others, it is necessary to check a box to indicate U.S. citizenship, but a government official (or any other person you authorize to complete the form on your behalf) may check off the box for you. 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. 2004) and inRodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 18 U.S.C. FAM 302.9-4(B)(4)); (3) (U) The fact under INA 212(a)(6)(C)(i), you must determine that the following four elements