2012 Dhs Memorandum Clarifies When False Claim To Citizenship Triggers
Under INA § 212(a)(6)(C)(ii), individuals who make a false claim to citizenship on or after Sept. 30, 1996, for any benefit or purpose under federal or state law are inadmissible. The impact of this ground of inadmissibility has been particularly harsh because no waiver is available. However, what if the person making the false claim mistakenly believed that he or she was a U.S. citizen? Or what if the person making the false claim was a minor under age 18?
Both questions are addressed in a 2012 memo prepared by the Department of Homeland Security for U.S. Citizenship and Immigration Services Chief Counsel, which was recently obtained through a FOIA request, and circulated to practitioners through the American Immigration Lawyers Association (AILA). The memo, described in more detail below, concludes that an individual is not inadmissible based on false claim to citizenship if: (a) the person believed he or she was a citizen at the time of making the representation; or (b) the person making the representation of citizenship was under age 18 and lacked the mental capacity to make a false claim. In both instances, the individual making the false claim has the burden to establish that she or he is not inadmissible under the circumstances.
On the issue of mistaken belief in U.S. citizenship, the memo notes that the USCIS Adjudicator Field Manual (AFM) at Chapter 40,6.2(c)(2)(B)(i) already takes a position on this issue, concluding that inadmissibility for false claim to citizenship requires knowledge that the misrepresentation is false. The memo concurs in this analysis, reasoning that Congress’ aim in enacting this section was to bar those who intentionally mispresented U.S. citizenship status. However, because a foreign national has the burden to establish admissibility, the memo confirms that it is up to the individual who made the false claim to establish that he or she believed the claim to be true.
Regarding false claims by minors, the memo reasons that inadmissibility does not extend to claims by those who “because of age or cognitive impairment lack the legal capacity to appreciate the nature and consequences of a false claim to citizenship.” In the view of DHS, this potential protection against inadmissibility for a false claim extends to age 18 and is not absolute. To defeat a finding of inadmissibility, the minor has the burden of establishing the lack of maturity and judgment to appreciate the nature and consequences of the false claim.
The DHS memo discussion on false claims made by minors under age 18 is particularly welcomed because this issue is not otherwise discussed in the AFM, the USCIS Policy Manual or the Board of Immigration Appeals precedent decisions. Letters sent to Senator Harry Reid in 2013 by the Department of State (DOS) and by DHS reference this policy, but the underlying DHS memo setting forth this analysis was not released and made available to practitioners until now.
Note that DOS has revised the Foreign Affairs Manual at 9 FAM 302.9-5(B)(1) to incorporate the DHS policies discussed in the memo.