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The Answer Man: False Claims to Citizenship

1 Feb

By Gary Endelman

Dear Answer Man:

Here in Burlington, Vermont, we pride ourselves on being a center of expertise when it comes to U.S. immigration law. Having the Vermont Service Center as a good neighbor, we naturally take a keen interest in the subject and talk about it early and often at church picnics, school events, neighborhood block parties and such like. Now, at one of these shindigs, the issue of aliens voting in our elections and the companion question of making a false claim to US citizenship came up. I am very sure that I know all there is to know about these arcane topics but, being a prudent man, I figure there can be no harm in getting you to confirm my encyclopedic grasp of the right answers. So, while I already can anticipate what you will tell me, let me pose the following questions to which timely answers would be much appreciated:

  • What provisions of the Immigration and Nationality Act address false claim to citizenship?
  • Are there federal laws outside the INA that punish false claims?
  • Has the law on false claim changed over the years? If so, how?
  • What regulations in 8 CFR deal with this?
  • What Notes in the Foreign Affairs Manual relate to this?
  • What does the Adjudicator’s Field Manual have to say on the matter
  • What INS/USCIS Memoranda have been issued to explain the Service’s position/interpretation?
  • Are there any precedent decisions that clarify the legal issues?
  • Have the federal courts spoken and, if so, what have they told us?
  • If you make a false claim, can you take it back?

 Now, I can readily understand that, not being from Burlington, you might come up a bit short in completing this assignment. But, reading your past columns, you seem like a smart boy, so do your best.

Watchful but waiting, I have the honor to remain,

Boastful in Burlington

Dear Boastful:

This is a daunting challenge and I will try to be worthy of it. It is certainly the case that, not living within the aura of the Vermont Service Center, my prophetic powers are sadly lacking. Let me give it the old college try and trust that you will be a compassionate judge.

  • What provisions of the Immigration and Nationality Act address false claims to citizenship?

There are several sections of the INA that speak to false claims to citizenship, the primary one being Section 212(a) (6) (C) (ii) added by the Illegal Immigration Reform and Immigrant Responsibility Act known as IIRAIRA which rendered inadmissible any alien who “falsely represents, or has represented, himself or herself to be a citizen of the United States for any purpose under this Act (including section 274A) or any other Federal or State law is inadmissible.” Interestingly, this language does not contain any intent requirement and may therefore suggest strict liability for which willfulness is an afterthought. However, in the Adjudicator’s Field Manual (AFM) we read that the alien must “knowingly” make the misrepresentation. The Answer Man has found out what preschoolers in Burlington learn at their mother’ knee, namely that a “representation” for false claim purposes does not have to be in writing or even under oath! It can be made orally in ordinary conversation. See memorandum from Lori Scialaba, Donald Neufeld & Pearl Chang, Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violation; Revisions to the Adjudicator’s Field Manual (AFM) to Include a New Chapter 40.6 (AFM Update AD 07-18 (Mar.3, 2009), available at www.USCIS.gov >Laws > Policy Memoranda > March 2009. By the way, look at the comparison with the general, pre-IIRAIRA misrepresentation ground of inadmissibility, INA § 212(a)(6)(C)(i) which is more limited than (C)(ii) since it contains a willfulness requirement and applies only when a “material fact” is at issue. Perhaps for this reason, misrepresentation under this generic ground can be relieved by a Section 212(i) waiver while the more specific false claim ground of (6)(C)(ii)(I) cannot. Notice also Boastful that the false claim does not have to be made to a federal official. Now there is some wiggle room here, thanks to Section 201(b) of the Child Citizenship Act of 2000, PL 106-395 (Oct. 30, 2000). INA § 212(a)(6)(C)(i)(II) provides an exception if both of the alien’s parents, whether by birth or adoption, are or were United States citizens; the alien has permanently resided in the United States before age 16 and the alien “reasonably believed” when making the false claim that he or she was actually a United States citizen. All of that is, of course, subject to interpretation but more on that later.

There is more in the INA. Section 212(a) (10) (D) (i) excludes any alien who has “voted in violation of any Federal, State or local constitutional provision, statute, ordinance or regulation.” Notice that voting per se is not enough. The voting must have been in violation of the law. Here again, if a permanent resident alien under 16 has two United States citizen parents and “reasonably believed” they were a citizen when voting, then no inadmissibility attaches to the act of voting.

Three other INA provisions are on point. Under the grab bag provision of INA § 101(f) listing examples of bad moral character, one finds, “In the case of an alien who makes a false statement or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election (including an initiative, recall or referendum) in violation of a lawful restriction of such registration or voting citizens ….” Once again, there is the standard exception for green card minors under 16 with United States citizen parents who reasonably believed they were doing nothing wrong.  There are two companion removal grounds in INA § 237(a)(6)(A) that deals with voting and (a)(3)(D)(i) that covers false representation, sans intent, both of which contain the customary exception for wayward though well-meaning green card youth.

  • Are there federal laws outside the INA that punish false claims?

You would be disappointed in me and probably would stop reading in disgust, if I could not answer this one. First up, we have 18 U.S.C. § 911 which gets you a fine and a maximum of 3 years in the big house if you “falsely and willfully” represent yourself to be a US citizen. Curiously, when this provision was amended in 1994, “knowingly” was dropped and “willfully” which presumably means something other and perhaps less than “knowingly” was added to take its place. One wonders if eliminating the “knowing” requirement means that this is not a crime of moral turpitude. Next comes 18 U.S.C. §.611(c) that criminalizes voting in federal elections, though no mention is made of state or local contests but one finds the normal exception based on age, parentage and reasonable belief. Last though certainly not list we have the hardy 18 U.S.C. § 1015(f) which punishes a “knowing” false claim but only one made in order to register to vote. This gets you a fine and up to 5 years as a guest of Uncle Sam.

  • Has the law on false claim changed over the years? If so, how?

The sea change came with the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) on September 30, 1996. Before IIRAIRA, a false claim to a private party would not be a distinct immigration violation, although a willful and material misrepresentation could include such a false claim as would tender trigger inadmissibility under INA § 212(a)(6)(C)(i). After IIRAIRA, lying to a private individual or employer about being a citizen when applying for a job, going to school, or getting on a plane creates a new and independent ground of inadmissibility pursuant to INA §212 (a)(6)(C)(ii). IIRAIRA added an explicit reference to employer sanctions under INA § 274A so that a false claim when completing an I-9 is covered. After IIRAIRA, any false claim anywhere to anyone for any reason has adverse immigration consequences. These changes are not retroactive and do not apply to misrepresentations made before September 30, 1996.

  •  What regulations in 8 CFR deal with this?

Boastful, you sly dog, are you trying to pull a fast one on the Answer Man? Is this a trick question? Unless they are written in invisible ink, or accessible only through the incantation of a secret oath, there are no regulations in title 8 of the Code of Federal Regulations on point. That omission speaks volumes. Why do we have statutory provisions all over the place and, as we shall see, Foreign Affairs Manual (FAM) notes in abundance, but nothing in title 8? Does this suggest that, in practice, the USCIS is not overly concerned or that the issue can be dealt with on the macro level without resort to notice and comment rulemaking, itself a commentary on the reluctance of the Service to abide by the Administrative Procedures Act?

  • What Notes in the Foreign Affairs Manual relate to this?

Now here the Answer Man is prepared! I offer the following tender FAM morsels:

9 FAM 40.63 N4.1: “Misrepresentation” Defined – While nothing in this note is specifically related to false claims it may be applied. This note confirms the observation made in the 2006 Neufeld Memorandum (discussed below) that a misrepresentation can be made orally as well as in writing, including “submitting evidence containing false information.”

9 FAM 40.63 N11: Inadmissibility under INA § 212(a) (6) (C) (ii) – This is a permanent bar for which there is no waiver. While the claim is usually advanced to obtain a benefit customarily associated with citizenship, such as a US passport or a guarantee of admission, it is more expansive than that also covering any benefit under State or Federal law. This could include, for example, making a claim of citizenship on an I-9.

9 FAM 40.63 N 12: INA § 212(a) (6)(C)(ii) Not Retroactive – The expanded reach of false claim misrepresentations applies from September 30, 1996 going forward. It does not reach back in time to the pre-IIRIRA era when such a false claim had to be made before a US government official which, curiously enough, could still be waived under INA § 212(i).

9 FAM 40.63 N 13: Scope of INA § 212(A) (6) (C)

(ii) – This note is pretty elastic, ranging far beyond any benefits granted by the INA. So, for example, making a false claim to vote or obtain welfare benefits, perhaps obtain a professional license or obtain a security clearance can also be implicated.

9 FAM 40.63 N 14: False Claims to U.S. Citizenship under INA 274A- IIRAIRA made an explicit link between employer sanctions and bogus citizenship so that, as of September 30, 1996 and beyond, lying to an employer about your alleged U.S. citizenship to get a job is an immigration violation.

9 FAM 40.63 N 15: Citizenship Claims Made to Other than U.S. Government Officials- No longer does the false claim have to be made to a USCIS examiner or a CBP inspector. Lying about citizenship to a state or local official, or even a prospective employer, even in the inner sanctum of Burlington, Vermont, though I know this never happens, renders an alien inadmissible.

9 FAM 40.104 N1: Inadmissibility for Unlawfully Voting- Note this is not a ban on voting per se but only on voting that violates some law or ordinance on any level. Interestingly, it also requires an admission. What if there is none? Also, the alien retains the opportunity later on to refute the determination of inadmissibility.

9 FAM 40.104 N 2: Applicability – This note relates to inadmissibility under INA 212(a) (10) (D) but no admission is necessary.

9 FAM 40.104 N3: Standards for Applying INA 212(a) (10) (D) – One can generally presume that any act of voting by an alien was unlawful but the presumption can be rebutted by a showing that the particular election law sanctioned such conduct.

  • What does the Adjudicator’s Field Manual have to say on the matter?

Look at Section 40.6.2(c)(2) and you will hit the mark. It is a treasure trove of relevant information. For example, we learn that, even though INA § 212(a)(6)(C)(ii) punishes a false claim to U.S. citizenship, an alien who makes a bogus claim to being a U.S. national is still excludable under INA 212(a)(6)(C)(i). The pre-September 30, 1996 ground of inadmissibility does not go away. Our earlier understanding that misrepresentation can be conveyed through false evidence or rendered orally is confirmed .We learn also that misrepresentation does not always require an intent to deceive although this will normally be the case if it was willful and material. Matter of Kai Hing Hui, 15 I. & N. Dec. 288 (BIA 1975). In fact, it is not even necessary for the official to believe or rely upon the falsity. By the way, you may wish to review what the Supreme Court said about materiality in Kungys v United States, 485 US 759 (1988). If the false statement was “predictably capable” of affecting the ultimate decision, then it was “material”. If it closed off a line of inquiry that would have rendered the alien inadmissible, it is material. Matter of S-and B-C-, 9 I. & N. Dec. 436, 447-449 (BIA 1961). Remember, that, unlike INA § 212(a)(6)(C)(i), a false claim does not have to be made before a U.S. government official; it can be made to a private employer and the bar comes down. However, while falsely representing to be a citizen when completing the I-9 triggers the bar, it is not necessary for the alien to be the subject of a civil penalty under INA § 274C to get into trouble. Knowingly making the false claim to obtain a benefit under the INA, which certainly includes working, is perfectly sufficient, thank you very much. Having said that, one must also say that the Section 274C order will establish inadmissibility under INA § 212(a)(6)(C)(ii). By the way, since the I­9 form was changed on April 3, 2009, to separate U.S. nationals from U.S. citizens, it is important for a USCIS adjudicator during the interview itself to make sure what the alien meant by the disputed claim. Yes, Boastful, the AFM is a gift that keeps on giving.

  • What INS/USCIS Memoranda have been issued to explain the Service’s position/interpretation?

Your friendly USCIS has not been shy about saying what it thinks. The creation of Section 212(a)(6)(C)(ii) by Section 344 of IIRAIRA galvanized the legacy INS and successor USCIS to issue a steady stream of memoranda. We start out with the memorandum from Joseph R. J. Greene, Acting Associate Commissioner, Office of Programs, Section 212(a) (6) (C) (ii) Relating to False Claims to US Citizenship (Apr. 6, 1998), reprinted at 3 Bender’s immigr. Bull. 425 (May 1, 1998), that reminds us that the false claim can be made to a private individual and to obtain a benefit under any federal or state law rather than to a federal official for a purpose or advantage under the INA. Of course, a false claim could trigger a finding under both provisions if, for example, it was made to facilitate admission free of immigration restrictions at a port of entry. By the way Boastful, though I know no one in Burlington would ever tarnish the sanctity of the voting booth, Paul Virtue, then Acting Executive Associate Commissioner of the legacy INS, wisely recognized that the same high level of virtue might not exist elsewhere. For that reason, in a memorandum dated May 5, 1997, he declined to formulate a national evidentiary standard for removal or prosecution against aliens registering to vote or voting but, instead, recognized the continuing relevance of regional differences and directed “ an assessment of the local voting procedures and a determination as to the likelihood of a successful prosecution and/or removal proceeding.” Memorandum from Paul Virtue, Acting Executive Associate Commissioner, Implementation of IIRAIRA Sections 215, 216 and 347, reprinted at 2 Bender’s Immigr. Bull. 507 (Jun. 15, 1997). Federalism in action!

The Department of State provided guidance on how US Consulates should interpret the new law in September 1997. See M .Albright, Department of State Cable 104-208, Update No. 27, False Claims to U.S. Citizenship and Amended 212(a)(6)(C) (Sept.17, 1997), reprinted at 2 Bender’s Immigr. Bull. 807 (Oct. 1, 1997). Previously, the State Department worried about false claims in connection with passport requests but no longer. Now, virtually any misrepresentation for any purpose to anyone could get you in hot water without the escape valve of a waiver. IIRAIRA essentially separated the issue of false claims from the interpretation and enforcement of the INA and the scope of Secretary of State Albright’s memorandum reflects this expanded reach. There is a fascinating caveat near the end of the cable. If you were lying to benefit someone else, no bar. The false claim had to be for the personal and direct benefit of the dissembler. However, the alien was not completely off the hook. See also Matter of M-R-, 6 I. & N. Dec. 259 (BIA 1959) (procurement of false documentation for alien’s children did not trigger inadmissibility under former INA 212(a) (19)).

Even though INA § 212(a)(6)(C) would not be implicated by a lie about someone else’s citizenship, the bad actor could still be excluded under INA § 212(a)(6)(E) if the false tale was told to facilitate the attempt by a companion to enter the United States in violation of the law.

We have already had the pleasure of making the acquaintance of the March 3, 2009 memorandum that revised and updated the Adjudicator’s Field Manual to include the new Section 40.6. There are two interesting observations about this guidance not made earlier. One is that a false claim made on or after September 30, 1996 to be a U.S. national as defined by INA § 101(a) (22), that is to say someone who owes permanent loyalty to the United States but is not a citizen, now limited to American Samoa, would not trigger a Section 212(a)(6)(C)(ii) finding but could still render the alien inadmissible under Section 212(a)

(6) (C) (i). Second, the alien “must have known that he or she was not a US citizen.” On April 28, 2009, the USCIS provided general guidance concerning the adjudication of I-601 waivers by its overseas adjudication officers.Pages.33-35 of this guidance reaffirmed the law on false claims as discussed above in numerous companion sources.There is nothing new here but it is a concise summation of basic definitions and a good outline of how the USCIS interprets INA § 212(a)(6)(C)(2)(ii). USCIS Guidance, Immigrant Waivers, Procedures for Adjudication of Form I-601 for Overseas Adjudication Officers, April 28, 2009, at 31, published on AILA InfoNet at Doc. No. 09061772 (posted June 17, 2009), available at www.aila.org/content/fileviewer.aspx?docid=2972&li nkid=204799 (restricted access).

 Perhaps the most insightful guidance comes from William R. Yates, Deputy Executive Commissioner, Office of Field Operations, Immigration Services Division, Policy Memorandum No.86, Procedures for Handling Naturalization Applications of Aliens Who Voted Unlawfully or Falsely Represented Themselves as US Citizens by Voting or Registering To Vote (May 7, 2002), reprinted at 10 Bender’s Immigr. Bull. 222 (Appendix G) (Feb. 15, 2005). Several key points merit individual mention. First, convictions for unlawful voting in violation of 18 U.S.C. § 611(c) only apply to convictions that became final on or after October 30, 2000. Second, the agency takes the position that, for the CCA exception to apply, the alien’s parents had to be U.S. citizens at the time of the illegal voting or false claim. Third, a charge of unlawful voting must be tied to a specific election law and the act of voting must be deemed to violate that law. Fourth, as the 1997 Virtue guidance noted above makes clear, it may not suffice to base an unlawful voting charge on 18 U.S.C. § 611 which governs federal elections since inadmissibility attaches to unlawful voting in state and./or local contests as well. Fifth, if the election law in question requires a knowing or willful violation, simply the act of voting without more may not hold up; it is then required to probe the circumstances surrounding the decision to vote including, but not limited to, the alien’s knowledge of the law; whether he was instructed to vote or advised to do so; whether the voting ballot itself asked if the voter was a US citizen and, perhaps most importantly, if the voter had to affirm his or her citizenship under penalty of perjury. Clearly, the USCIS and/or U.S. Attorney will want to examine a copy of the voter registration form with instructions and the voter registration card to try and answer these questions. As to the reasonableness of any belief in one’s U.S. citizenship, the Yates Memorandum weighs the following factors:

 … the length of time the applicant resided in the United States and the age when the applicant entered as a lawful permanent resident. For example, suppose … (1) the applicant was born overseas and adopted as an infant by a U.S. citizen couple; (2) the applicant’s parents mistakenly believed that the applicant’s adoption and entry into the United States conferred citizenship upon the applicant; and (3) the applicant’s parents always told him that him or her that he or she was a U.S. citizen. In this case, it is likely the applicant has established the “reasonable belief” necessary for an exception from the removal grounds.

Earlier, the Answer Man mused whether a conviction under 18 U.S.C. § 611 was or was not a crime involving moral turpitude (CIMT) given the absence of a “knowing” state of mind which was present in 18 U.S.C. § 1015(f). Well, Mr. Yates answers this question precisely as you would expect: violation of 18 U.S.C. § 611 is NOT a CIMT and does NOT preclude a finding of good moral character which, of course, is required for naturalization, while commission of a crime under 18 U.S.C. § 1015(f) does have this preclusive effect, thereby resulting in removability under INA §§ 212(a)(2)(A)(i) or 237(a)(2)(A)(i) and (ii). While a conviction under 18

U.S.C. § 611 is not a per se bar to establishment of good moral character, it still could provide the basis for a discretionary finding that gets the USCIS adjudicator to the same place in the end. This then evolves into a totality of the circumstances analysis very much along the lines noted above. How long ago was the unlawful registration? Did the alien sign the voter registration card without understanding that he or she was advancing a false claim to citizenship? Was the alien told by an outside third party, such as a community organization, that he or she could vote? Is there any other blot on the alien’s record or is this a law abiding person with a solid reputation? It would, for example, color the way in which the allegation of unlawful voting was examined if the alien was a tax absconder; or if the alien had numerous unpaid traffic tickets; or perhaps if he owed huge amounts of unpaid child support. In other words, when framing a composite portrait of the person, one naturally considers other factors that go beyond the realm of the INA to include their entire life.

  • Are there any precedent decisions that clarify the legal issues?

There are a few though perhaps not as many as you might think. In part, this reflects the natural caution of the agency in the designation of such decisions and, in part, the tendency of the federal courts to take the lead in the unpacking of this issue. There are some old cases that retain their value. Making a false claim in order to secure admission to the United States is valid justification for removal as having entered without inspection. Matter of Wong, 11 I. & .N Dec. 712 (BIA 1966). Matter of K-, 3 I. & N. Dec. 180, 181-82 (BIA 1949) displays admirable compassion by teaching us that a false claim to keep one’s job will not necessarily prevent a showing of good moral character.  Even where such falsity is not condoned, there is no per se ban. Matter of K-, 3  I. & N. Dec. 69, 71 (BIA 1947). In this last case, the false claim was advanced to get a job, register for the draft and to vote. These cases remind us again that determinations on good moral character are not made in vacuum but with due consideration for morality and respect for societal norms. It is the whole person that is judged in a false claim case. Despite the catch-all commentary in INA 101(f), making a false claim can certainly support a finding of bad moral character but does not compel this conclusion. Matter of Guadarrama, 24 I. & N. Dec. 625 (BIA 2008). It is worth remembering that, while there is precedential authority that imputes parental abandonment of LPR status to a child, Matter of Zamora, 17 I. & N. Dec. 395 (BIA 1980), the Board of Immigration Appeals has not extended this to knowledge of false claims. Well, they tried to on one occasion but the Sixth Circuit Court of Appeals slapped their wrists; evidently, a five year old girl was too young to know what her parents had done. Singh v. Gonzales, 451 F.3d 400 (6th Cir. 2006).

Unpublished decisions by the BIA that do not carry precedential impact are not consistent as to whether false claim is a strict liability or requires a particular mental state. Compare Alicia Dominguez-Cortes, A 74 299 143 (BIA Feb. 8, 2007) (willful misrepresentation of citizenship not required to sustain finding of inadmissibility under section 212(a)(6)(C)(ii) with Alma Delia Contreras, A 79 805 353 (BIA Apr.14, 2005)(“It has long been settled that a false claim of United States citizenship must be knowing and willful for immigration purposes…”).

  • Have the federal courts spoken and, if so, what have they told us?

Now this, Boastful, is an abundance of riches calculated to excite all of us. Unless you went out of your way to emphasize that you were really claiming to be a U.S. citizen, when dealing with the pre-April 2009 version of the I-9 form, the courts were reluctant to sustain a false claim inadmissibility charge if the alien contended the false claim only concerned U.S. nationality. Ateka v. Ashcroft, 384 F.3d 854(8th Cir. 2004, ) and Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008) fairly stand for this proposition, as does United States v. Karaouni, 379 F. 3d 1139(9th Cir. 2004) which reminds us that, though not upheld here, a false claim when completing an I-9 may implicate possible violation of 18 U.S.C. § 911. To uphold such conviction, however, not only must the false claim be “willful” but it must be made to someone who has a logical reason, though not necessarily a legal mandate, to inquire about the claimant’s citizenship. United States v. Romero-Avila, 210 F.3d 1017 (9th Cir. 2000); Smiley v. United States, 181 F.2d 505,507-08 (9th Cir. 1950). It is not, however, necessary to show that the misrepresentation was advanced to further a fraudulent aim. Chow Bing Kew v. United States, 248 F.2d 466 (9th Cir. 1957). An element of scienter is required. See,e.g., Rodriguez v. Gonzales, 451 F.3d 60, 65 (2d Cir. 2006) (“Because Rodriguez admitted that the represented himself to be a United States citizen and, by pleading guilty, that he knew his application contained false information, he is inadmissible and statutorily precluded from receiving adjustment of status.”); Ateka v. Ashcroft, 384 F,3d 954, 957 (8th Cir. 2004)(substantial evidence justified Immigration Judge conclusion of an intentional false claim); Matute v. United States Att’y Gen., 354 F.App’x 426,427 (11th Cir. 2009) (“We agree that the misrepresentation of citizenship status must have been made knowingly…”).

 Remember, lying about being a citizen to obtain employment can trigger a false claim finding. Theodros v. Gonzales, 490 F. 3d 396, 402 (5th Cir. 2007); Ferrans v. Holder File No. 0903596 (6th Cir. July 12, 2010); Hassan v. Holder, 604 F.3d 95, 928 (6th Cir. 2010). This is serious stuff since, after September 30, 1996; the false claim ground of inadmissibility is a permanent bar with no available waiver. See Pichardo v. INS, 216 F.3d 1198(9th Cir. 2000). There is some compassion here and a welcome modicum of perspective. Happily, there is authority for the view that an unaccompanied minor lacks the maturity and intellect to make such a false claim. Matter of Jane Doe, [file number not provided] (IJ Oct. 2005) (St.Paul, MN), summarized at 83 Interpreter Releases 775(Apri.24, 2006).

If the alien was not aware that they could not vote, this can be a sustainable defense. See McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005). After all Boastful, while I know full well that no child in Burlington would ever make this mistake, a foreign-born child adopted by U.S. parents and  unfortunately taken to some other community may not realize that they had to seek naturalization. Hughes v. Ashcroft, 255 F.3d 752, 758-760 (9th Cir. 2001). For the CCA exception on misguided green card youth to apply, both parents, not just one, must be U.S. citizens. Romero-Ruiz v. Mukasey, No. 06-74494 (9th Cir. Aug. 13, 2008).We owe it to our clients to remember that, if a foreign national has previously been admitted, it is the government that must justify removal by “clear, convincing and unequivocal” evidence. Woodby v. Immigration and Naturalization Serv., 385 US 276 (1966).

An excellent summary of relevant judicial commentary can be found in the Proceedings of the 2011 Annual Conference of the American Immigration Lawyers Association. Mark Barr, John Patrick Pratt and Tarik Sultan, False Claims to US Citizenship” Immigration Practice Pointers, p. 170 (2011-12 ed.)

  • If you make a false claim, can you take it back?

Traditionally, the defense of timely retraction was allowed to cure a misrepresentation. 9 FAM 40.63 N4.6. For this to work, you had to volunteer the recantation without delay. See Matter of R-R-, 3 I. & N. Dec. 823 (BIA 1949); Llanos-Serranos v United States, 177 F.2d 164 (timely means during the same proceeding or interview); Matter of M-, 9 I. & N. Dec. 118 (BIA 1960) (misrepresentation corrected before it was exposed). If you wait too long or after it becomes readily apparent that the ruse will work, the defense fails. This is not a willing or timely retraction. Matter of Namio, 14 I. & N. Dec. 412 (BIA 1973). Do not wait until repeated questioning to assert this defense. Valadez-Munoz v. Holder, 623 F.3d 1304 (9th Cir. 2010). Recent USCIS guidance suggests that a timely retraction might still be honored and given effect. See Adjudicator’s Field Manual (AFM) ch.40.62.(c)(2)(c)(viii)(2010); See also USCIS Guidance, Immigrant Waivers, Procedures for Adjudication of Form I-601 for Overseas Adjudication Officers, April 28, 2009, at 31, published on AILA InfoNet at Doc. No. 09061772 (posted Jun. 17, 2009), available at www.aila.org/content/fileviewer.aspx? docid=2972&linkid=204799 (restricted access). Finally, one is cheered by the recent ruling in Sandoval v. Holder, 641 F.3d 982 (8th Cir. 2011) that, when dealing with a fib by an un-accompanied minor, her age, maturity and mental acumen must be taken into account. After all, the CCA exception was aimed at rescuing precisely just such a claimant from the tragic and permanent consequences of her own folly. Sandoval, at 989.

 So that is where the story ends Boastful, at least for now. Admittedly, not what the average toddler in Burlington could do but be kind to the Answer Man. He was not born in Burlington but he is sure trying to get there as fast as he can.