A. Evidence

For an officer to find an alien inadmissible for falsely claiming U.S. citizenship,^[1] the evidence must demonstrate:

1. The alien made the misrepresentation in person, in writing, or through other means to a person or entity; and
2. The alien made the misrepresentation for any purpose or benefit under the Immigration and Nationality Act (INA), other federal law, or state law.^[2]

There must be sufficient evidence that would lead a reasonable person to find that the alien falsely represented him or herself to be a U.S. citizen.^[3] Examples of evidence include oral testimony, written testimony, or any other documentation containing information about the applicant’s false claim to U.S. citizenship.^[4]

In general, USCIS is required to issue a Notice of Intent to Deny (NOID) when derogatory information is uncovered during the course of the adjudication that is not known to the benefit requestor and USCIS intends to deny the benefit request on the basis of that derogatory information. The alien may be either unaware of the derogatory information or unaware of its impact on eligibility, and USCIS must provide the requestor an opportunity to rebut that information.^[5]

B. Burden of Proof

The burden of proof to establish admissibility during the process of seeking an immigration benefit is on the applicant.^[6] The burden never shifts to the government at any time during the adjudication process.^[7]

1. No Evidence of False Misrepresentation

If there is no evidence that the applicant made a false representation of U.S. citizenship for any purpose or benefit under the INA or any other federal or state law, the officer should find that the applicant has met the burden of proof and is not inadmissible under this ground.

2. Evidence of False Misrepresentation

If there is evidence that would permit a reasonable person to conclude that the applicant is inadmissible under this ground, the officer should find that the applicant has not successfully met the burden of proof.^[8] An applicant who fails to meet the burden of proof is inadmissible for falsely claiming U.S. citizenship unless the applicant is able to successfully rebut the officer’s inadmissibility finding.

3. Applicant’s Rebuttal Must be Clear and Beyond Doubt

If the officer determines that the applicant is inadmissible based on a false claim to U.S. citizenship, the applicant has the burden of establishing at least one of the following facts clearly and beyond doubt^[9] to rebut the finding:​

1. The representation was not false;
2. The false representation was not a representation of U.S. citizenship;
3. The false representation was made prior to September 30, 1996; or
4. The false representation was not made for a purpose or benefit under the INA or any other federal or state law.^[10]

4. Rebutting Inadmissibility Finding​

If the officer determines that the applicant has established at least one of the above facts, then the applicant has successfully rebutted the inadmissibility finding and has met the burden of proving that he or she is not inadmissible.

If the officer determines that the applicant has established none of these facts, then the applicant has not successfully rebutted the inadmissibility finding and is inadmissible.^[11]

If the officer finds that the evidence for and against a finding of false claim to U.S. citizenship is of equal weight, then the applicant is inadmissible. As long as there is a reasonable evidentiary basis to conclude that an applicant is inadmissible for falsely claiming U.S. citizenship, and the applicant has not overcome that reasonable basis with evidence, then the officer should find the applicant inadmissible.

C. Civil Penalty or Criminal Conviction

Falsely claiming to be a U.S. citizen could result in a civil penalty^[12] or in a criminal conviction for falsely and willfully representing to be a U.S. citizen.^[13]

Inadmissibility for falsely claiming to be a U.S. citizen can be sustained simply by proving that the applicant knowingly made the false claim for any purpose or any benefit under the INA or any other federal or state law. For purposes of determining whether the applicant is inadmissible for falsely claiming U.S. citizenship, it is not necessary to establish that the applicant is the subject of a civil penalty or that the applicant has a criminal conviction for falsely and willfully representing to be a U.S. citizen.

If the officer finds that the alien has a conviction for falsely and willfully representing to be a U.S. citizen,^[14] the conviction record is sufficient to establish that the applicant is inadmissible for falsely claiming U.S. citizenship.

Similarly, an order of civil penalty based on a false representation of U.S. citizenship is sufficient to establish that the applicant is inadmissible for falsely claiming to be a U.S. citizen. Fraudulent conduct other than a false claim to U.S. citizenship, however, may be the basis for a civil penalty. If the applicant was liable for a civil penalty for document fraud that does not relate to a false claim to U.S. citizenship,^[15] then the civil penalty order is not an indication that the applicant is inadmissible for falsely claiming U.S. citizenship.

The civil penalty must be specifically based on a finding that the alien made a false claim to U.S. citizenship for the civil penalty order to be sufficient to establish inadmissibility for falsely claiming U.S. citizenship.

Footnotes

[^ 1] See INA 212(a)(6)(C)(ii).

[^ 2] See Matter of Y-G- (PDF), 20 I&N Dec. 794 (BIA 1994). See Matter of D-L- & A-M- (PDF), 20 I&N Dec. 409 (BIA 1991). See Matter of L-L- (PDF), 9 I&N Dec. 324 (BIA 1961). See Chapter 2, Determining Inadmissibility Based on False Claim to U.S. Citizenship, Section D, Any Purpose or Benefit Under the INA or Any Federal or State Law [8 USCIS-PM K.2(D)].

[^ 3] The “reasonable person” standard is drawn fromINS v. Elias-Zacarias, 502 U.S. 478 (1992) (agency fact-finding must be accepted unless a reasonable fact-finder would necessarily conclude otherwise).

[^ 4] The Board of Immigration Appeals (BIA) recently held that Form I-9, Employment Eligibility Verification, is admissible in removal proceedings as support of a charge of inadmissibility. See Matter of Bett (PDF), 26 I&N Dec. 437, 441-442 (BIA 2014).

[^ 5] See 8 CFR 103.2(b)(16)(i). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny, Subsection 4, Notices of Intent to Deny [1 USCIS-PM E.6(F)(4)].

[^ 6] See INA 291. See Matter of Bett (PDF), 26 I&N Dec. 437 (BIA 2014).

[^ 7] See INA 291. See Matter of Arthur (PDF), 16 I&N Dec. 558 (BIA 1978).

[^ 8] See INS v. Elias-Zacarias, 502 U.S. 478 (1992).

[^ 9] See Matter of Bett (PDF), 26 I&N Dec. 437, 440 (BIA 2014). See Kirong v. Mukasey, 529 F.3d 800, 804 (8th Cir. 2008). See Rodriguez v. Mukasey, 519 F.3d 773, 776 (8th Cir. 2008). See Blanco v. Mukasey, 518 F.3d 714, 720 (9th Cir. 2008).

[^ 10] For example, an alien falsely claiming to be a U.S. citizen during a police arrest would not meet the “purpose or benefit” requirement. See Castro v. Attorney General,671 F.3d 356 (3rd Cir. 2012).

[^ 11] See Matter of Rivero-Diaz (PDF), 12 I&N Dec. 475 (BIA 1967). See Matter of M-, 3 I&N Dec. 777 (BIA 1949).

[^ 12] See INA 274C. Whenever “civil penalty” is used in this section, it refers to a civil penalty under INA 274C.

[^ 13] See 18 U.S.C. 911. Whenever such “criminal conviction” is used in this section, it refers to a conviction under 18 U.S.C. 911.

[^ 14] See Pichardo v. INS, 216 F. 3d 1198 (9th Cir. 2000).

[^ 15] For example, the applicant is held liable for a civil penalty based on the use of a fraudulent visa.