The world of immigration is full of immigration judges and CBP, ICE/ERO, and USCIS officers investigating fraud and misrepresentation. Most grounds are waivable or forgivable. For example, when adjusting in the United States as the spouse of a U.S. citizen, any unauthorized work is generally not an issue. As another example, coming to the United States on a temporary or tourist visa, when your intention is to stay permanently, may be overcome with rebuttal. Even entering the United States using false documents can sometimes be excused with a waiver.
One of the most difficult inadmissible offenses to deal with is called False Claim to U.S. Citizenship. A false claim can come up in a number of ways, often times by mistake. In cases where a person knows he or she is falsely claiming to be a citizen, the government still has to prove the essential elements. It is a serious charge and must be taken seriously.
Inadmissibility and Removability
An inadmissible offense means a person cannot obtain an immigration benefit, such as a visa or green card, or cannot enter the United States either for residency, travel, leisure or employment. If you are outside the United States, you won’t be allowed in. If you are trying to adjust status or prevent your removal, you will be prevented from doing so.
False claim to U.S. citizenship is an inadmissible offense under INA 212(a)(6)(C)(ii)(I). Under this statute, “an alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this Act… or any other Federal or State law is inadmissible.” The only exception is under INA 212(a)(6)(C)(ii)(II) for the child of a U.S. citizen who permanently resided in the United States prior to turning sixteen (16) years old and reasonably believed he or she was a citizen. There is no exception for anyone else and no waiver available.
A removable (deportable) offense means triggering a court process called removal proceedings. Removal proceedings take place in federal Immigration Court. While inadmissible offenses generally apply to people trying to obtain a green card or visa, removable offenses generally apply to people who already have a green card or visa. If you commit a removable offense, the government will try to remove you from the United States unless you qualify for a waiver or other form of relief.
False claim to U.S. citizenship is a removable offense under INA 237(a)(3)(D)(i). Under this statute, “an alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this Act… or any other Federal or State law is deportable.” The only exception is under INA 237(a)(3)(D)(ii) for the child of a U.S. citizen who permanently resided in the United States prior to turning sixteen (16) years old and reasonably believed he or she was a citizen. There is no exception for anyone else and no waiver available.
As you can see, the false claim doctrine applies to people here on visas, green cards and even people who are here without status. Each and every situation is different and must be carefully analyzed.
What Does It Mean To Falsely Claim U.S. Citizenship?
False claims to U.S. citizenship comes up in numerous ways, either written, verbal or implied. Basically, it means a person who claims to be a U.S. citizen when he or she is not in fact a U.S. citizen by birth, naturalization, or derived/acquired citizenship from parents or the military. A foreign national must claim to be a false U.S. citizen; it does not apply to those claiming false foreign citizenship, or false U.S. national status.
The most common way is through doing things only U.S. citizens can do. A person who is eligible to obtain a driver’s license sometimes accidentally registers to vote at the same time. People who are trying to obtain federal public benefits for their families sometimes accidentally check boxes indicating everyone is a U.S. citizen. False claims arise in many instances, such as public and private schools, on employment and contract forms, on loan and bank documents and through the court system. In a small amount of cases, children of parents on diplomatic visas are accidentally given citizenship by mistake.
Of course, not every false claim to U.S. citizenship is mistaken or inadvertent. Obtaining a fake I.D. or birth documents of a U.S. citizen in order to work is a clear sign of falsely claiming U.S. citizenship. Misusing a real or fake U.S. passport to travel is another clear sign. Another example is a person clearly, verbally presenting himself or herself as a U.S. citizen, such as during an arrest, investigation or to a federal government employee, which includes a border agent.
How Do I Fight A False Claim Charge?
There are many ways to fight this charge. First and foremost, it only applies to claims made after September 30, 1996. Any false claims before then may be waived, if eligible.
A false claim to U.S. citizenship must be factually false and must be knowingly made. Some people are actually citizens, but they don’t have the paperwork to prove it. This does not mean their claims are false. The government must also prove the claimant knew the statement was false. If a person reasonably believes he or she is a citizen, there is an argument against knowing the statement as false. The above elements often apply to non-citizen children who grow up believing they are citizens. They also apply to people who may have limited mental or physical capabilities.
If a tree falls in the forest, does it make a sound? In other words, if a person claims to be a citizen in a private setting, is this an example of false claim to U.S. citizenship? The answer is probably no. False claims to U.S. citizenship involve claims made for any purpose or benefit under the INA or any Federal or State law. A private exchange between two people is not for any legal purpose. However, a false claim made to federal or state investigators as part of an investigation would likely count. The purpose clause would also relate to tax documents, federal and state employment forms, statements to Border agents, and even in a hospital for purposes of Medicare/Medicaid.
Can I Take Back My False Claim to U.S. Citizenship?
Immigration recognizes ‘timely retraction.’ A false claim to U.S. citizenship may be retracted if it is made in a voluntary and timely manner, before a government employee or officer, in the same proceeding or situation as when it was made. Apologizing years later likely wouldn’t count. However, correcting a form immediately after the mistake, or immediately once a foreign national realizes the mistake, would likely count.
What Should I Do If I Think I Made a False Claim to U.S. Citizenship?
The first thing to do is speak to an immigration attorney. Depending on your age, status, background and circumstance, you may or may not have falsely claimed U.S. citizenship. It is incredibly important to seek legal counsel if you are currently in removal proceedings or applying for a green card or visa. It could mean the difference between staying in the United States and being permanently barred.