8 USCIS-PM K.2
An alien is inadmissible based on a false claim to U.S. citizenship if:
The statute does not require an alien to make a false claim to U.S. citizenship intentionally, knowingly, or willfully to be found inadmissible under INA 212(a)(6)(C)(ii).[2] Therefore, even if an alien believed that he or she was a U.S. citizen when he or she made the false claim for any purpose or benefit under the INA or any other federal or state law, the alien is inadmissible unless the narrow statutory exception applies.[3]
Statutory Exemptions, Exceptions, and Waivers
Congress determined that special immigrant juveniles (SIJs) seeking adjustment of status[4] and applicants for registry[5] are exempt from the false claim ground of inadmissibility and therefore, the ground does not apply.
Additionally, there is a narrow statutory exception for false claims made on or after September 30, 1996 that applies to certain aliens who reasonably believed they were a U.S. citizen.[6] Congress made the exception apply retroactively.[7] However, there are no exceptions in the statute based solely on age or on mental capacity at the time of the false claim to U.S. citizenship.[8]
There is no waiver of inadmissibility for the false claim ground in INA 212. However, Congress authorized waivers of inadmissibility for this ground for applicants seeking adjustment of status under certain immigrant categories.[9]
The officer should examine all facts and circumstances when evaluating inadmissibility based on a false claim to U.S. citizenship. The officer should follow the steps in the table below to determine inadmissibility.
| Step | For More Information | |
|---|---|---|
| Step 1 | Determine whether the alien made a false claim of U.S. citizenship. | Section B, False Claim to U.S. Citizenship [8 USCIS-PM K.2(B)] |
| Step 2 | Determine whether the alien made a false claim to U.S. citizenship on or after September 30, 1996. | Section C, Claim Made On or After September 30, 1996 [8 USCIS-PM K.2 (C)] |
| Step 3 | Determine whether the alien’s false claim to U.S. citizenship was for any purpose or benefit under the INA or under any other federal or state law. | Section D, Any Purpose or Benefit Under the INA or Any Federal or State Law [8 USCIS-PM K.2(D)] |
| Step 4 | Determine whether the alien timely retracted the false claim to U.S. citizenship. | Section E, Timely Retraction [8 USCIS-PM K.2(E)] |
| Step 5 | Determine whether the alien is not inadmissible because a statutory exception or waiver applies.[10] | Chapter 4, Exemptions, Exceptions and Waivers, Section A, Applicability [8 USCIS-PM K.4(A)] and Section C, Exception [8 USCIS-PM K.4(C)] |
An officer should first determine whether an alien falsely claimed to be a U.S. citizen.
An alien may have falsely claimed to be a U.S. citizen in oral interviews, written applications, or submitted evidence. The claim must be false, meaning it is not in accordance with the true facts. The false claim does not need to be made under oath.
Unlike inadmissibility for fraud or willful misrepresentation of a material fact,[11] an alien does not need to have made the false claim of U.S. citizenship to a U.S. government official. The alien can have made the false claim to any federal, state, or local official, or even to a private person or entity, such as an employer.[12]
Status as a U.S. citizen is related to, but is not the same as, U.S. national status. A U.S. citizen is any person born in the United States or who otherwise acquires U.S. citizenship at or after birth.[13] A U.S. national is any person owing permanent allegiance to the United States and may include a U.S. citizen or a non-U.S. citizen U.S. national.[14] A non-U.S. citizen U.S. national owes permanent allegiance to the United States and is entitled to live in the United States but is not a U.S. citizen.[15]
An alien who falsely claims to be a U.S. national but not a U.S. citizen is not inadmissible based on a false claim to U.S. citizenship.[16] The alien, however, may be inadmissible for fraud or willful misrepresentation of a material fact if all other elements for that ground are met.[17]
Employment Eligibility Verification (Form I-9) Version Before April 3, 2009
The Form I-9 used prior to April 3, 2009 asked the person completing the form whether the person is a “citizen or national” of the United States and required checking a box corresponding to the answer. The fact that an alien marked “Yes” on an earlier edition of the Employment Eligibility Verification does not necessarily subject an alien to inadmissibility for falsely claiming U.S. citizenship because the earlier edition of Form I-9 did not distinguish a claim of nationality from a claim of citizenship.[18]
An affirmative answer to this question does not, by itself, provide sufficient evidence that would permit a reasonable person to find an alien falsely represented U.S. citizenship because of the question’s ambiguity.[19]
In these cases, the alien must demonstrate to an officer that he or she understands the distinction between a U.S. citizen and non-U.S. citizen U.S. national.[20] The alien has the burden of showing that he or she claimed to be a non-U.S. citizen U.S. national as opposed to a U.S. citizen. The alien’s inadmissibility for a false claim to U.S. citizenship depends on whether the alien meets the burden of showing that he or she intended to claim to be a non-U.S. citizen U.S. national when completing the Form I-9.
This inquiry is not necessary if the alien used the April 3, 2009 edition or any later edition of the Form I-9, as these editions clearly differentiate between a citizen of the United States and a non-U.S. citizen U.S. national of the United States.
An officer should determine whether the false claim to U.S. citizenship[21] occurred on or after September 30, 1996.[22] If an alien falsely claimed U.S. citizenship before September 30, 1996, an alien may be inadmissible for fraud or willful misrepresentation of a material fact[23] but not for falsely claiming U.S. citizenship.[24]
An alien is inadmissible for falsely claiming U.S. citizenship if an alien falsely represents him or herself to be a citizen of the United States for any purpose or benefit under the INA, including INA 274A or any other federal or state law.[25]
To determine that an alien is inadmissible based on a false claim to U.S. citizenship, an officer must find direct or circumstantial evidence:
The false claim to U.S. citizenship must be material, meaning whether someone is a U.S. citizen must affect or make a difference in whether the alien can obtain the purpose or benefit sought.[28] Determining inadmissibility under this ground is fact specific.[29] Therefore, not every false claim results in inadmissibility.[30]
There may be cases where the facts show that an alien intended to achieve both a purpose and obtain a benefit. However, an alien can also be inadmissible based on a false claim made with the subjective intent to achieve a purpose, even if it did not involve an application for any specific benefit, such as misrepresentation of U.S. citizenship status to avoid negative legal consequences, including removal proceedings.[31]
An officer can only find an alien inadmissible based on a false claim to U.S. citizenship if the alien made the false claim with the subjective intent to obtain a purpose or benefit under the INA or any other federal or state law.[32] An alien has a subjective intent to obtain a purpose or benefit under the INA or any other federal or state law if he or she believes that U.S. citizenship is relevant to the purpose or benefit sought.[33]
Whether an alien made the false claim with the subjective intent of obtaining any purpose or benefit under the INA or any other federal or state law is a question of fact and dependent on the circumstances of each case.[34] Officers must find direct or circumstantial evidence demonstrating that an alien made the false claim with the subjective intent of achieving a purpose or benefit under the INA or any other federal or state law.[35]
The INA does not exempt an alien from this ground of inadmissibility based solely on his or her age or on his or her mental incapacity,[36] and there is no defense to this ground of inadmissibility based solely on an alien’s age or mental capacity. However, an officer may consider an alien’s age or mental capacity when determining whether he or she made the false claim to U.S. citizenship with the subjective intent to achieve a purpose or benefit. The officer should consider all relevant factors when evaluating whether an alien had the subjective intent to achieve a purpose or benefit, including an alien’s:
Officers must determine the presence of a purpose or benefit objectively. This means that they must determine that U.S. citizenship affected or mattered to the purpose or benefit sought by an alien.[39]
| If U.S. citizenship… | Then the claim to U.S. citizenship… |
|---|---|
| Influences the official decision to grant or deny the benefit sought | Affects the purpose of the benefit sought.[40] |
| Is required as part of the benefit eligibility | Matters to the benefit sought.[41] |
It is the alien’s burden to show that U.S. citizenship did not affect or matter to the purpose or benefit sought.[42]
A benefit must be identifiable and specified in the INA or any other federal or state law.[43] A benefit includes, but is not limited to:
The term purpose is broad and includes avoiding negative legal consequences.[47] Negative legal consequences that an alien may seek to avoid by falsely claiming U.S. citizenship include, but are not limited to:
Purpose, however, is not limited to avoiding negative legal consequences. A purpose also includes obtaining a more favorable outcome. For example, an alien would be falsely claiming U.S. citizenship to achieve a purpose under federal or state law if what the alien seeks has eligibility or evidentiary requirements that do not apply to U.S. citizens and the false claim allows the alien to avoid these requirements. This is true even if what is sought is available to both U.S. citizens and aliens.
An alien is only inadmissible if he or she makes a false claim to U.S. citizenship for his or her own purpose or benefit. If an alien falsely claims U.S. citizenship on behalf of another person, the alien that made the misrepresentation is not inadmissible for falsely claiming U.S. citizenship.[51]
If someone else, such as an alien’s attorney, agent, or legal representative makes the false claim to U.S. citizenship on the alien’s behalf, the alien is held responsible if the officer finds the alien was aware.[52] This includes oral misrepresentations made at the border by a person assisting an alien to enter illegally. Furthermore, an alien cannot deny responsibility for any false claim made by the alien based on the advice of another person.[53]
An alien is not inadmissible if he or she made a timely retraction of the fraud or misrepresentation.[54] If an alien timely retracts the statement, an officer can then adjudicate the case as if the fraud or misrepresentation had never happened.
Similarly, an alien may also timely retract a false claim to U.S. citizenship. If the alien does so, he or she would not be inadmissible under INA 212(a)(6)(C)(ii). The retraction must be voluntary and timely to be effective.[55] The alien must correct the false claim before an officer or U.S. government official challenges the alien’s truthfulness and before the conclusion of the proceeding during which the alien made the false claim. A retraction can only be timely if the alien makes it in the same proceeding in which the alien gives the false testimony or misrepresentation.[56]
Admitting to the false claim after an official has challenged the accuracy of the claim is not a timely retraction.[57]
[^ 1] See INA 212(a)(6)(C)(ii).
[^ 2] See Matter of Zhang, 27 I&N Dec. 569 (BIA 2019). In Matter of Zhang, the BIA held that under the plain language of INA 237(a)(3)(D)(i), which is virtually identical to INA 212(a)(6)(C)(ii), the alien does not need “an intent to falsely represent citizenship status.” See Matter of Zhang, 27 I&N Dec. 569, 571 (BIA 2019). The BIA reasoned that the absence of a knowing or willful requirement for false claims to citizenship in INA 212(a)(6)(C)(ii)(I) and INA 237(a)(3)(D)(i) indicates that there was no congressional intent to include one. See Matter of Zhang, 27 I&N Dec. 569, 571 n.3 (BIA 2019). All prior DHS guidance, memos, and opinions that provided a defense to inadmissibility based on knowledge, age, or mental capacity are superseded by Matter of Zhang, including the DHS Office of General Counsel Memo “False Citizenship Claims by Children: Knowledge and Legal Capacity Elements” issued on December 6, 2012. USCIS applies the precedent decision, Matter of Zhang, to all pending adjustment of status applications, including those in which the false claim predates the decision.
[^ 3] See INA 212(a)(6)(C)(ii).
[^ 4] See INA 245(h)(2). See 8 CFR 245.1(e)(3)(iii) and 8 CFR 245.1(e)(3)(iv). See Volume 7, Adjustment of Status, Part F, Special Immigrant-Based Adjustment, Chapter 7, Special Immigrant Juveniles [7 USCIS-PM F.7].
[^ 5] See INA 249. See Volume 7, Adjustment of Status, Part O, Registration, Chapter 4, Aliens Who Entered the United States Prior to January 1, 1972 [7 USCIS-PM O.4].
[^ 6] See INA 212(a)(6)(C)(ii)(II). See Chapter 4, Exemptions, Exceptions and Waivers, Section C, Exception [8 USCIS-PM K.4(C)].
[^ 7] See Section 201(b) of the Child Citizenship Act of 2000 (CCA), Pub. L. 106-395 (PDF), 114 Stat. 1631, 1633 (October 30, 2000).
[^ 8] See INA 212(a)(6)(C)(ii). See Matter of Zhang, 27 I&N Dec. 569 (BIA 2019). Although the BIA did not address legal capacity in their decision, the BIA determined that it is not necessary to show intent to establish a false claim of U.S. citizenship. Therefore, all prior DHS guidance, memos, and opinions that provided a defense to inadmissibility based on knowledge, age, or mental capacity are superseded by Matter of Zhang, including the December 6, 2012, DHS Office of General Counsel memo “False Citizenship Claims by Children: Knowledge and Legal Capacity Elements.” USCIS applies the precedent decision, Matter of Zhang, to all pending adjustment of status applications, including those in which the false claim predates the decision.
[^ 9] For information about waivers for inadmissibility under INA 212(a)(6)(C)(ii), see Chapter 4, Exemptions, Exceptions, and Waivers, Section D, Waivers [8 USCIS-PM K.4(D)].
[^ 10] See INA 212(a)(6)(C)(ii)(II).
[^ 11] See INA 212(a)(6)(C)(i).
[^ 12] For example, the alien could have made a false claim to U.S. citizenship to comply with the employment verification requirements under INA 274A.
[^ 13] See U.S. Constitution, amend. XIV. See INA 301 and INA 309. See Volume 12, Citizenship and Naturalization [12 USCIS-PM].
[^ 14] See INA 101(a)(22).
[^ 15] See INA 308. As of 2014, American Samoa (including Swains Island) is the only outlying possession of the United States, as defined under INA 101(a)(29). See Volume 12, Citizenship and Naturalization [12 USCIS-PM].
[^ 16] See INA 212(a)(6)(C)(ii)(I).
[^ 17] For example, if the false claim to U.S. nationality was made to a U.S. government official in seeking an immigration benefit. See INA 212(a)(6)(C). See Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].
[^ 18] In Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004) and in Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008), the aliens specifically testified that they claimed to be citizens when checking the particular box on the prior version of the Form I-9. Based on this testimony, the court determined that these aliens were inadmissible on account of falsely claiming U.S. citizenship.
[^ 19] See U.S. v. Karaouni, 379 F.3d 139 (9th Cir. 2004).
[^ 20] In Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004), for example, the evidence showed that the alien had no idea what it meant to be a noncitizen national, and that the alien intended to claim that the alien was a citizen.
[^ 21] INA 212(a)(6)(C)(ii)(I) makes an alien inadmissible and INA 237(a)(3)(D)(i) applies to an alien who has been admitted but has become removable on account of the false representation. If an alien falsely claims citizenship by voting, that person would also be inadmissible under INA 212(a)(10)(D), which declares an alien inadmissible who votes in violation of any federal, state, or local law.
[^ 22] The date this inadmissibility ground became effective. See Section 344(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 104-208 (PDF) (September 30, 1996).
[^ 23] See INA 212(a)(6)(C)(i). For more information on inadmissibility based on fraud and willful misrepresentation, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].
[^ 24] See Chapter 1, Purpose and Background, Section B, Background [8 USCIS-PM K.1(B)].
[^ 25] See INA 212(a)(6)(C)(ii).
[^ 26] See Matter of Richmond, 26 I&N Dec. 779, 786 (BIA 2016). For examples of benefits, see Subsection 3, Benefit [8 USCIS-PM K.2(D)(3)].
[^ 27] See Matter of Richmond, 26 I&N Dec. 779, 786 (BIA 2016). For examples of benefits, see Subsection 3, Benefit [8 USCIS-PM K.2(D)(3)].
[^ 28] See Matter of Richmond, 26 I&N Dec. 779, 786-87 (BIA 2016). However, in Patel v. U.S. Att’y Gen., 971 F.3d 1258 (11th Cir. 2020) the Eleventh Circuit held that a false claim to U.S. citizenship does not have to be material to result in inadmissibility. Officers should confer with local counsel if adjudicating a case in the Eleventh Circuit that involves inadmissibility based on false claim to U.S. citizenship. 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)].
[^ 29] See Matter of Richmond, 26 I&N Dec. 779, 787 (BIA 2016).
[^ 30] See Matter of Richmond, 26 I&N Dec. 779, 787 (BIA 2016).
[^ 31] See Matter of Richmond, 26 I&N Dec. 779, 789 (BIA 2016).
[^ 32] See Matter of Richmond, 26 I&N Dec. 779, 784 (BIA 2016).
[^ 33] See Matter of Richmond, 26 I&N Dec. 779, 786 (BIA 2016).
[^ 34] See Matter of Richmond, 26 I&N Dec. 779, 784 (BIA 2016).
[^ 35] See Matter of Richmond, 26 I&N Dec. 779, 786-87 (BIA 2016). See Crocock v. Holder, 670 F.3d 400 (2nd Cir. 2012).
[^ 36] See INA 212(a)(6)(C)(ii). See Matter of Zhang, 27 I&N Dec. 569 (BIA 2019). Although the BIA did not address legal capacity in their decision, the BIA determined that it is not necessary to show intent to establish a false claim of U.S. citizenship. Therefore, all prior DHS guidance, memos, and opinions that provided a defense to inadmissibility based on knowledge, age, or mental capacity are superseded by Matter of Zhang, including the DHS Office of General Counsel memo “False Citizenship Claims by Children: Knowledge and Legal Capacity Elements” issued December 6, 2012. USCIS applies the precedent decision, Matter of Zhang, to all pending adjustment of status applications, including those in which the false claim predates the decision.
[^ 37] A minor who is under the age of 18 at the time of a false claim is not exempted from inadmissibility under INA 212(a)(6)(c)(i).
[^ 38] For more information on factors the officer should consider when determining whether a person is capable of exercising judgment, see Part J, Fraud and Willful Misrepresentation, Chapter 3, Adjudicating Inadmissibility, Section D, Willfulness, Subsection 5, Misrepresentations by Minors (Under 18) or those who are Mentally Incompetent [8 USCIS-PM J.3(D)(5)].
[^ 39] 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”).
[^ 40] See Matter of Richmond, 26 I&N Dec. 779, 787 (BIA 2016).
[^ 41] See Matter of Richmond, 26 I&N Dec. 779, 787 (BIA 2016).
[^ 42] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 43] See Matter of Richmond, 26 I&N Dec. 779, 787 (BIA 2016).
[^ 44] See Matter of Barcenas-Barrera (PDF), 25 I&N Dec. 40 (BIA 2009). See Matter of Villanueva (PDF), 19 I&N Dec. 101, 103 (BIA 1984).
[^ 45] See Matter of Barcenas-Barrera (PDF), 25 I&N Dec. 40 (BIA 2009). See Jamieson v. Gonzales, 424 F.3d 765 (8th Cir. 2005). See Reid v. INS,420 U.S. 619 (1975).
[^ 46] See Dakura v. Holder, 772 F.3d 994 (4th Cir. 2014). See Crocock v. Holder,670 F.3d 400, 403 (2nd Cir. 2012). See Castro v. Att'y Gen. of U.S., 671 F.3d 356, 368 (3rd Cir. 2012). See Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008). See Kechkar v. Gonzales, 500 F.3d 1080 (10th Cir. 2007). See Theodros v. Gonzales, 490 F.3d 396 (5th Cir. 2007). See Matter of Bett (PDF),26 I&N Dec. 437 (BIA 2014).
[^ 47] See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).
[^ 48] See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).
[^ 49] SeeMatter of Pinzon (PDF), 26 I&N Dec. 189 (BIA 2013). SeeMatter of F- (PDF), 9 I&N Dec. 54 (BIA 1960).
[^ 50] See Kechkar v. Gonzales, 500 F.3d 1080 (10th Cir. 2007).
[^ 51] See Department of State Cable (no. 97-State-174342) (September 17, 1997). However, falsely claiming citizenship on behalf of another alien may make the alien inadmissible for alien smuggling. See Matter of M-R,6 I&N Dec. 259, 260 (BIA 1954).
[^ 52] For more information on interpretation of the term willfully, see 9 FAM 302.9-4. For more information on factors the officer should consider when determining whether a person is capable of exercising judgment and committing intentional acts, see Part J, Fraud and Willful Misrepresentation, Chapter 3, Adjudicating Inadmissibility, Section D, Willfulness, Subsection 5, Misrepresentations by Minors (Under 18) or those who are Mentally Incompetent [8 USCIS-PM J.3(D)(5)].
[^ 53] For information on ineligibility based on illegal entry, misrepresentation and other immigration violations, see 9 FAM 302.9.
[^ 54] See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of M- (PDF), 9 I&N Dec. 118 (BIA 1960) (also cited by Matter of R-S-J- (PDF), 22 I&N Dec. 863 (BIA 1999)). For more information on timely retraction, see 9 FAM 302.9.
[^ 55] See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949) (“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.”). See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of Namio (PDF), 14 I&N Dec. 412 (BIA 1973), referring to Matter of M- (PDF),9 I&N Dec. 118 (BIA 1960) and Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. 1949).
[^ 56] See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949).
[^ 57] See Matter of Namio (PDF), 14 I&N Dec. 412 (BIA 1973).