For a foreign national to be inadmissible based on false claim to U.S. citizenship, an officer must find all of the following elements:

The foreign national made a representation of U.S. citizenship;

The representation was false;

The foreign national made the false representation knowingly; and

The foreign national made the false representation for any purpose or benefit under the Immigration and Nationality Act (INA) or any other federal or state law.

A. Overview of Admissibility Determination

The officer should examine all facts and circumstances when evaluating inadmissibility for falsely claiming U.S. citizenship. The officer should follow the steps in the table below to determine inadmissibility.

Overview of Admissibility Determination

Step

For More Information

Step 1

Determine whether foreign national claimed to be a U.S. citizen.

Section B, Claim to U.S. Citizenship [8 USCIS-PM K.2(B)]

Step 2

Determine whether foreign national made the representation 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 representation was false.

Section D, Knowledge that Claim Was False [8 USCIS-PM K.2(D)]

Step 4

Determine whether foreign national knew the claim to U.S. citizenship was false. [1] Falsely represented includes whether the applicant misrepresented the fact that the applicant is a citizen of the United States with the knowledge that the representation is not true.

Section D, Knowledge that Claim Was False [8 USCIS-PM K.2(D)]

Step 5

Determine whether foreign national’s false claim to U.S. citizenship was for the purpose of obtaining a benefit under the INA or under any other federal or state law.

Section E, Purpose or Benefit under INA or Any State or Federal Law [8 USCIS-PM K.2(E)]

Step 6

Determine whether foreign national timely retracted the false claim to U.S. citizenship.

Section F, Timely Retraction [8 USCIS-PM K.2(F)]

Step 7

Determine whether foreign national is exempt from inadmissibility because a statutory exception applies. [2] See INA 212(a)(6)(C)(ii)(II).

Chapter 4, Exceptions and Waivers, Section A, Applicability [8 USCIS-PM K.4(A)] and Section B, Exception [8 USCIS-PM K.4(B)]

Step 8

Determine whether a waiver of inadmissibility is available.

Chapter 4, Exceptions and Waivers, Section C, Waiver [8 USCIS-PM K.4(C)]

B. Claim to U.S. Citizenship

An officer should first determine whether a foreign national claimed to be a U.S. citizen.

1. Form of Claim

A foreign national may claim to be a U.S. citizen in oral interviews, written applications, or by submitting evidence. It is irrelevant whether or not the foreign national made the claim under oath.

2. Representation Before Government Official Not Necessary

Unlike inadmissibility for fraud and misrepresentation, [3] See INA 212(a)(6)(C)(i). a foreign national does not have to make the claim of U.S. citizenship to a U.S. government official exercising authority under the immigration and nationality laws. The foreign national can make the claim to any other federal, state, or local official, or even to a private person, such as an employer. [4] For example, the foreign national could make a false claim to U.S. citizenship to comply with the employment verification requirements under INA 274A.

3. Distinction between a U.S. Citizen and a U.S. National

U.S. citizen status is related to, but is not the same as, U.S. national status. A U.S. national is any person owing permanent allegiance to the United States and may include a U.S. citizen or a non-citizen U.S. national. [5] See INA 101(a)(22). A non-citizen U.S. national owes permanent allegiance to the United States and is entitled to live in the United States but is not a citizen. [6] 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]. A U.S. citizen is any person born in the United States or who otherwise acquires U.S. citizenship at or after birth. [7] See U.S. Constitution, amend. XIV. See INA 301. See INA 309. See Volume 12, Citizenship and Naturalization [12 USCIS-PM].

4. Claiming to be a U.S. National

A foreign national who falsely claims to be a U.S. national but not a U.S. citizen is not inadmissible for false claim to U.S. citizenship. [8] See INA 212(a)(6)(C)(ii)(I). The foreign national, however, may be inadmissible for fraud or willful misrepresentation if all other elements for that ground are met. [9] 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].

The Employment Eligibility Verification form (Form I-9) used prior to April 3, 2009, asked the person completing it whether the person is a “citizen or national” of the United States and required checking a box corresponding to the answer. The fact that a foreign national marked “Yes” on an earlier edition of the Employment Eligibility Verification does not necessarily subject the foreign national to inadmissibility for falsely claiming U.S. citizenship, because the earlier edition of the form did not distinguish a claim of “nationalityfrom a claim of “citizenship.” [10] In Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004) and in Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008), the applicants specifically testified that they claimed to be citizens when checking the particular box on Form I-9. Based on this testimony, the court determined that the applicants were inadmissible on account of falsely claiming U.S. citizenship. The Board of Immigration Appeals (BIA) non-precedent decisions seem to draw on this distinction. See Matter of Oduor, 2005 WL 1104203 (BIA 2005). See Matter of Soriano-Salas, 2007 WL 2074526 (BIA 2007).

An affirmative answer to this question does not, by itself, provide sufficient evidence that would permit a reasonable person to find the foreign national falsely represented U.S. citizenship because of the question’s ambiguity. [11] See U.S. v. Karaouni, 379 F.3d 139 (9th Cir. 2004).


In these cases, the applicant must demonstrate to an officer that he or she understands the distinction between a U.S. citizen and non-U.S. citizen national. [12] In Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004), Matter of Oduor, 2005 WL 1104203 (BIA 2005), and Matter of Soriano-Salas, 2007 WL 2074526 (BIA, June 5, 2007), for example, the evidence showed that the applicant had no idea what it meant to be a non-citizen national and that the applicant intended to claim that the applicant was a citizen. The applicant has the burden of showing that he or she was claiming to be a non-U.S. citizen national as opposed to a U.S. citizen. The applicant’s inadmissibility for a false claim to U.S. citizenship depends on whether the applicant meets the burden of showing that he or she intended to claim to be a U.S. national when completing the Form I-9.

This inquiry is not necessary if the applicant used the April 3, 2009, edition or any later edition of the Form I-9, because these editions clearly differentiate between “Citizen of the United States” and “Non-citizen National of the United States.”

C. Claim Made On or After September 30, 1996 [13] INA 212(a)(6)(C)(ii)(I) makes a foreign national subject to removal as inadmissible. INA 237(a)(3)(D)(i) is identical but applies to a foreign national who has been admitted but has become removable on account of the false representation. Also, if a foreign national falsely claims citizenship by voting, that foreign national would also be inadmissible under INA 212(a)(10)(D), which declares a foreign national inadmissible who votes in violation of any federal, state, or local law.

An officer should determine whether the claim to U.S. citizenship occurred on or after September 30, 1996. [14] 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 (September 30, 1996). If an applicant claimed U.S. citizenship before September 30, 1996, the applicant may be inadmissible for fraud or willful misrepresentation [15] 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]. but not for falsely claiming U.S. citizenship. [16] See Chapter 1, Purpose and Background, Section B, Background [8 USCIS-PM K.1(B)].

D. Knowledge that Claim Was False

If an applicant claimed to be a U.S. citizen on or after September 30, 1996, then an officer should determine whether the claim was false and whether the applicant knew the claim was false.

1. False Representation

A false representation or misrepresentation is an assertion or manifestation that is not in accordance with the true facts.

2. Knowledge of False Claim

For USCIS to consider the claim to U.S. citizenship to be false, the applicant must knowingly misrepresent the fact that the applicant is a citizen of the United States. The applicant must have known that he or she was not a U.S. citizen at the time he or she made the claim. [17] See 9 FAM 302.9-5, Falsely Claiming Citizenship - INA 212(a)(6)(C)(ii).

Knowledge that the claim was false, however, is not an element that the government must prove. As long as there is some evidence in the record that reasonably calls the foreign national’s admissibility into question, the foreign national has the burden to prove the foreign national is not inadmissible.

The foreign national’s assertion that he or she did not know the claim to citizenship was false is therefore a defense. The foreign national must establish clearly and beyond a doubt that he or she did not know the claim was false. The foreign national’s lack of knowledge about the claim being false is an individualized inquiry and depends on the unique circumstances of each particular case.

3. Refusal to Respond to Questions [18] For more information, see Part J, Fraud and Willful Misrepresentation, Chapter 3, Adjudicating Inadmissibility, Section D, Willfulness [8 USCIS-PM J.3(D)].

A foreign national’s refusal to answer a question does not necessarily mean that the foreign national knowingly made a false representation. A foreign national’s refusal to answer an officer’s question during an admissibility determination, however, could result in the officer finding that the applicant failed to establish admissibility. [19] It is the applicant’s burden to establish that he or she is not inadmissible. See​ ​INA 291​.​ ​See​ Matter of Arthur ​, 16 I&N Dec. 558 (BIA 1978).​

4. Lack of Capacity

Factors to Consider

Inherent in the knowledge requirement is that the foreign national has the capacity for such knowledge. An officer cannot make a finding of inadmissibility for false claim to U.S. citizenship if the foreign national lacks the capacity to knowingly make a false claim to U.S. citizenship.

An officer should not find that a foreign national lacks capacity simply because the foreign national does not know that a false claim to U.S. citizenship makes him or her inadmissible. An officer should find a lack of capacity only if the evidence shows that the foreign national was incapable of understanding the nature and consequences of the false claim at the time of the alleged false claim.

The officer should consider all relevant factors when evaluating whether the foreign national has the capacity to make a knowingly false claim to U.S. citizenship, including the foreign national’s:

Age;

Level of education;

Background;

Mental capacity;

Level of understanding;

Ability to appreciate the difference between true and false; and

Other relevant circumstances.

False Claim Made while Under Age 18

A lack of capacity claim may arise most often in the case of a foreign national who made a false claim to U.S. citizenship while under the age of 18. The fact that the foreign national was not yet 18 years of age is insufficient by itself to establish a lack of capacity.

A capacity assessment, in this instance, relies on determining whether the foreign national who made the false claim while under age 18 had the maturity and the judgment to understand and appreciate the nature and consequences of his or her actions at the time the false claim was made.

Sufficient capacity for knowledge at the time of the claim is not an element that the government must prove. As long as there is some evidence in the record that reasonably calls the foreign national’s admissibility into question, the foreign national has the burden to prove that he or she is not inadmissible.

​The foreign national
may establish that he or she did not have the capacity to judge the nature and consequences of a false citizenship claim due to age or cognitive impairment. The foreign national must establish the lack of capacity clearly and beyond doubt. The foreign national’s capacity for knowledge is an individualized inquiry, and it depends on the unique circumstances of each particular case.

E. Purpose or Benefit under INA or Any State or Federal Law

1. Any Purpose or Benefit

The law only makes a foreign national inadmissible for falsely claiming U.S. citizenship if the foreign national 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. [20] See INA 212(a)(6)(C)(ii).

The provision for inadmissibility based on false claim to U.S. citizenship [21] See INA 212(a)(6)(C)(ii). uses “or” rather than “and” as the conjunction between “purpose” and “benefit.” There may be cases in which the facts show that the foreign national intended to achieve both a purpose and obtain a benefit. However, a foreign national can also be inadmissible based on a false claim made with the specific intent to achieve an improper purpose, even if it did not involve an application for any specific benefit.

Furthermore, U.S. citizenship must affect or matter to the purpose or benefit sought. That is, U.S. citizenship must be material to the purpose or benefit sought. [22] 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)].

In sum, even though a foreign national may have falsely claimed U.S. citizenship, he or she is only inadmissible if:

The foreign national made the false claim with the subjective intent of obtaining a benefit or achieving a purpose under the INA or any other federal or state law, as shown by direct or circumstantial evidence; and

U.S. citizenship affects or matters to the purpose or benefit sought, that is, it must be material to obtaining the benefit or achieving the purpose.

2. Intent to Obtain a Benefit [23] See Matter of Richmond, 26 I&N Dec. 779, 787-88 (BIA 2016).

Whether a foreign national made the false claim with the specific intent of obtaining a benefit is a question of fact and dependent on the circumstances of each case. The foreign national has the burden to show, either with direct or circumstantial evidence, that he or she did not have the subjective intent of obtaining the benefit. [24] See Matter of Richmond, 26 I&N Dec. 779, 786-787 (BIA 2016). See Crocock v. Holder, 670 F.3d 400 (2nd Cir. 2012).

Whether U.S. citizenship actually affects or matters to the benefit sought is determined objectively. If the benefit requires U.S. citizenship as part of eligibility, then the foreign national’s false claim is material. [25] See Kungys​ v. United States​, 485 U.S. 759, 770 (1988). If the claim to citizenship has a natural tendency to influence the official decision to grant or deny the benefit sought, the claim is material. [26] See Kungys​ v. United States​, 485 U.S. 759, 770 (1988). A false claim has a natural tendency to influence the official decision to grant or deny the benefit if the person would not obtain the benefit on the true facts, or if the false claim tends to cut off a line of inquiry, which is relevant to the eligibility and which might have resulted in a proper determination that the foreign national is not eligible for the benefit. It is the foreign national’s burden to show that U.S. citizenship is not relevant to obtaining the benefit.

If U.S. citizenship is irrelevant to the benefit at issue, the foreign national’s false claim to U.S. citizenship does not make him or her inadmissible unless the evidence provides a basis for finding that the foreign national made the false claim to achieve a purpose under federal or state law.

For purposes of a false claim to U.S. citizenship, [27] See INA 212(a)(6)(C)(ii). a benefit must be identifiable and enumerated in the INA or any other federal or state law.

A benefit includes but is not limited to:

A U.S. passport; [28] See Matter of Barcenas-Barrera, 25 I&N Dec. 40 (BIA 2009). See Matter of Villanueva, 19 I&N Dec. 101, 103 (BIA 1984).

Entry into the United States; [29] See Matter of Barcenas-Barrera, 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). and

Obtaining employment, loans, or any other benefit under federal or state law, if citizenship is a requirement for eligibility. [30] 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, 26 I&N Dec. 437 (BIA 2014).

3. Intent to Achieve a Purpose

Whether a foreign national made the false claim with the specific intent of achieving a purpose is a question of fact and dependent on the circumstances of each case. The foreign national has the burden to show, either with direct or circumstantial evidence, that he or she did not have the subjective intent of achieving the purpose. [31] See Matter of Richmond, 26 I&N Dec. 779, 786-787 (BIA 2016). See Crocock v. Holder, 670 F.3d 400 (2nd Cir. 2012).

Whether U.S. citizenship actually affects or matters to the purpose is determined objectively. U.S. citizenship affects or matters to the purpose, and is material, if it has a natural tendency to influence the applicant’s ability to achieve the purpose. [32] See Kungys​ v. United States​, 485 U.S. 759, 770 (1988). A false claim has a natural tendency to influence the official decision to grant or deny the benefit if the person would not obtain the benefit on the true facts, or if the false claim tends to cut off a line of inquiry, which is relevant to the eligibility and which might have resulted in a proper determination that the foreign national is not eligible for the benefit. It is the foreign national’s burden to show that U.S. citizenship is not relevant to achieving the purpose.

If U.S. citizenship is irrelevant to achieving the purpose at issue, the foreign national’s false claim to U.S. citizenship does not make him or her inadmissible unless the evidence provides a basis for finding that the foreign national made the false claim to obtain a benefit under federal or state law.

The term “purpose” includes avoiding negative legal consequences. Negative legal consequences that a foreign national might seek to avoid by falsely claiming U.S. citizenship include but are not limited to:

Removal proceedings; [33] See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

Inspection by immigration officials; [34] See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013). See Matter of F-, 9 I&N Dec. 54 (BIA 1960). and

Prohibition on unauthorized employment. [35] See Kechkar v. Gonzales, 500 F.3d 1080 (10th Cir. 2007).

Purpose, however, is not limited to avoiding negative legal consequences. The purpose may also be something more positive. For example, a false claim would be for an improper purpose if a benefit under federal or state law is not restricted to U.S. citizens, but a foreign national falsely claims to be a U.S. citizen when seeking the benefit to avoid an eligibility or evidentiary requirement that does not apply to citizens seeking the benefit.

Example

In the course of an arrest for disorderly conduct, a foreign national falsely claimed that he was born in Puerto Rico. However, the facts of the case did not support that he had falsely claimed U.S. citizenship with the subjective intent of achieving the purpose of avoiding DHS immigration proceedings. Furthermore, the police could not have conferred such a result, and the foreign national’s status as a U.S. citizen was immaterial to the arrest proceedings because the police treated U.S. citizens and foreign nationals the same. [36] See Castro v. Attorney Gen. of U.S., 671 F.3d 356, 368 (3rd Cir. 2012). According to the court, the Immigration Judge’s (IJ) and the BIA conclusion that Castro made a false claim of U.S. citizenship for the purpose of evading detection by immigration authorities seemed to have been built solely on the assumption that this was a reasonable purpose to ascribe to Castro because he was undocumented. Therefore, the court decided that the BIA and the IJ erred in coming to this conclusion. The purpose imputed by the BIA to Castro would have applied to virtually any false claim to citizenship made by a foreign national unlawfully present in the country because the absence of legal status always provides a reason to wish to avoid the attention of DHS. Therefore, the construction threatened to read the limiting language—the requirement that the “purpose or benefit” be “under” the INA or any other federal or state law—out of INA 212(a)(6)(C)(ii) entirely.

Example

A foreign national stated twice during DHS interrogation that he was a U.S. citizen. He failed to show he had not made this claim to U.S. citizenship with the subjective intent of achieving the purpose of avoiding removal proceedings. He also failed to show that citizenship did not affect removal proceedings. Therefore, the foreign national was inadmissible for falsely claiming U.S. citizenship. [37] See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

Example

An employer made a job offer to a foreign national who did not have employment authorization. In completing the USCIS Form I-9, the foreign national marked the box claiming U.S. citizenship with the intent to avoid the need to obtain and present a valid and unexpired employment authorization document. The foreign national is inadmissible since the foreign national made the false claim for the purpose of avoiding additional requirements under the immigration laws. [38] See Matter of Bett, 26 I&N Dec. 437 (BIA 2014).

Example

A foreign national applied for a license under state law. The eligibility is not restricted to U.S. citizens but a foreign national must submit additional evidence that a U.S. citizen is not required to submit. Specifically, a foreign national must present evidence of lawful status or at least authorization to accept employment. The foreign national falsely claimed citizenship in order to avoid the additional evidentiary requirements. The foreign national is inadmissible since the foreign national made the false claim for the purpose of avoiding additional requirements under state law. [39] This conclusion is consistent with the rationale of Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

4. Representation Must Be for Own Benefit

A foreign national is only inadmissible if the foreign national makes a misrepresentation for the foreign national’s own benefit. If a foreign national misrepresents another foreign national’s citizenship, the foreign national that made the misrepresentation is not inadmissible for falsely claiming U.S. citizenship. [40] See Department of State Cable (no. 97-State-174342) (September 17, 1997). However, falsely claiming citizenship on behalf of another foreign national may make the foreign national inadmissible for alien smuggling. See Matter of M-R, 6 I&N Dec. 259, 260 (BIA 1954).

5. For Purpose of Coming into the United States

A foreign national who makes a successful false claim to U.S. citizenship or nationality at the port-of-entry and who is allowed into the United States has not been admitted. In order for a foreign national to be admitted, CBP must have authorized the foreign national to enter the United States after the foreign national came to the port-of-entry and sought admission as a foreign national. [41] See Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010). See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section A, “Inspected and Admitted” or “Inspected and Paroled” [7 USCIS-PM B.2(A)(2)].

However, the law and precedents relating to what qualifies as the admission of a foreign national do not apply to U.S. citizens and nationals. U.S. citizens and nationals are not subject to the same inspection process as foreign nationals. If CBP believes the person is a U.S. citizen or national, CBP cannot prevent the person’s return to the United States. It is well-settled that someone who is allowed to come into the United States as a U.S. citizen or national has not been admitted. [42] See Reid v. INS, 420 U.S. 619 (1975). See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013). See Mattter of S-, 9 I&N Dec. 599 (BIA 1962).

Therefore, a foreign national who comes into the United States under a false claim to U.S. citizenship is not only inadmissible for falsely claiming U.S. citizenship, but may also be inadmissible as a foreign national who is in the United States without inspection and admission or parole. [43] Similarly, a lawful permanent resident (LPR) returning from a temporary trip abroad is not considered to be seeking admission or readmission to the United States unless of one of the factors in INA 101(a)(13)(C) is present. See Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1998). Because the returning LPR is not an arriving alien who is an applicant for admission unless one of the factors in INA 101(a)(13)(C) is present, the foreign national is not inspected as an arriving alien. If the foreign national makes a false claim to LPR status at a port-of-entry and if the foreign national is permitted to enter, then the foreign national has not been admitted for purposes of INA 101(a)(13)(A).

A foreign national who comes into the United States based on a false claim to U.S. nationality is not inadmissible under the provision relating to false claims to citizenship. [44] See INA 212(a)(6)(C)(ii)(I). However, the person may be inadmissible as a foreign national who is in the United States without inspection and admission or parole.

6. False Claim Made by an Agent or Representative

If an applicant’s attorney or agent makes the false representation, the applicant is held responsible if it is established that the applicant was aware of the action taken by the representative in furtherance of the applicant’s benefit application. This includes oral misrepresentations made at the border by a person assisting a foreign national to enter illegally. Furthermore, a foreign national cannot deny responsibility for any misrepresentation made on the advice of another person unless the foreign national establishes that he or she lacked the capacity to exercise judgment. [45] For more information, see Section D, Knowledge that Claim Was False, Subsection 4, Lack of Capacity [8 USCIS-PM K.2(D)(4)].

F. Timely Retraction


​Case law relating to the inadmissibility ground for fraud or willful misrepresentation has long recognized that a foreign national is not inadmissible if he or she made a timely retraction of the fraud or misrepresentation.
[46] See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of M-, 9 I&N Dec. 118 (BIA 1960) (also cited by Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999)). See 9 FAM 302.9-4(B)(3)(f), Timely Retraction. If a foreign national timely retracts the statement, it acts as a defense to the inadmissibility ground. A USCIS officer would then decide the case as if the fraud or misrepresentation had never happened.

In principle, a foreign national might also timely retract a false claim to U.S. citizenship. If the foreign national does so, he or she would not be inadmissible for this inadmissibility ground. The retraction has to be voluntary and timely in order to be effective. [47] “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 Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949). See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of Namio, 14 I&N Dec. 412 (BIA 1973), referring to Matter of M-, 9 I&N Dec. 118 (BIA 1960) and Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. 1949). The applicant must correct the representation before an officer or U.S. government official challenges the applicant’s truthfulness and before the conclusion of the proceeding during which the applicant gave false testimony. A retraction can be voluntary and timely if made in response to an officer’s question during which the officer gives the applicant a chance to explain or correct a potential misrepresentation.

Admitting to the false representation after USCIS has challenged the veracity of the claim is not a timely retraction. [48] See Matter of Namio, 14 I&N Dec. 412 (BIA 1973). For example, an applicant’s recantation of the false testimony is neither voluntary nor timely if made a year later and only after it becomes apparent that the disclosure of the falsity of the statements is imminent. [49] See Matter of Namio, 14 I&N Dec. 412 (BIA 1973). A retraction or recantation can only be timely if the foreign national makes it in the same proceeding in which the foreign national gives the false testimony or misrepresentation. [50] See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949).

​Further, a retraction or recantation of a false claim to U.S. citizenship is only timely if the foreign national makes it in the same proceeding in which he or she made the false claim. For example, disclosing in an adjustment application that one falsely claimed to be a citizen in completing a
Form I-9, registering to vote, or seeking any other benefit would not be a timely retraction. The false claim was complete when the foreign national submitted the Form I-9, registered to vote, or sought the other benefit. The disclosure of the false claim on the adjustment of status application, therefore, would be part of a different proceeding.

Footnotes


1. [^]

Falsely represented includes whether the applicant misrepresented the fact that the applicant is a citizen of the United States with the knowledge that the representation is not true.

4. [^]

For example, the foreign national could make a false claim to U.S. citizenship to comply with the employment verification requirements under INA 274A.

6. [^]

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].

7. [^]

See U.S. Constitution, amend. XIV. See INA 301. See INA 309. See Volume 12, Citizenship and Naturalization [12 USCIS-PM].

9. [^]

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].

10. [^]

In Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004) and in Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008), the applicants specifically testified that they claimed to be citizens when checking the particular box on Form I-9. Based on this testimony, the court determined that the applicants were inadmissible on account of falsely claiming U.S. citizenship. The Board of Immigration Appeals (BIA) non-precedent decisions seem to draw on this distinction. See Matter of Oduor, 2005 WL 1104203 (BIA 2005). See Matter of Soriano-Salas, 2007 WL 2074526 (BIA 2007).

11. [^]

See U.S. v. Karaouni, 379 F.3d 139 (9th Cir. 2004).

12. [^]

In Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004), Matter of Oduor, 2005 WL 1104203 (BIA 2005), and Matter of Soriano-Salas, 2007 WL 2074526 (BIA, June 5, 2007), for example, the evidence showed that the applicant had no idea what it meant to be a non-citizen national and that the applicant intended to claim that the applicant was a citizen.

13. [^]

INA 212(a)(6)(C)(ii)(I) makes a foreign national subject to removal as inadmissible. INA 237(a)(3)(D)(i) is identical but applies to a foreign national who has been admitted but has become removable on account of the false representation. Also, if a foreign national falsely claims citizenship by voting, that foreign national would also be inadmissible under INA 212(a)(10)(D), which declares a foreign national inadmissible who votes in violation of any federal, state, or local law.

14. [^]

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 (September 30, 1996).

15. [^]

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].

16. [^]

See Chapter 1, Purpose and Background, Section B, Background [8 USCIS-PM K.1(B)].

17. [^]

See 9 FAM 302.9-5, Falsely Claiming Citizenship - INA 212(a)(6)(C)(ii).

18. [^]

For more information, see Part J, Fraud and Willful Misrepresentation, Chapter 3, Adjudicating Inadmissibility, Section D, Willfulness [8 USCIS-PM J.3(D)].

19. [^]

It is the applicant’s burden to establish that he or she is not inadmissible. See​ ​INA 291.​ ​See Matter of Arthur ​, 16 I&N Dec. 558 (BIA 1978).​

22. [^]

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)].

23. [^]

See Matter of Richmond, 26 I&N Dec. 779, 787-88 (BIA 2016).

24. [^]

See Matter of Richmond, 26 I&N Dec. 779, 786-787 (BIA 2016). See Crocock v. Holder, 670 F.3d 400 (2nd Cir. 2012).

25. [^]

See Kungys​ v. United States​, 485 U.S. 759, 770 (1988).

26. [^]

See Kungys​ v. United States​, 485 U.S. 759, 770 (1988). A false claim has a natural tendency to influence the official decision to grant or deny the benefit if the person would not obtain the benefit on the true facts, or if the false claim tends to cut off a line of inquiry, which is relevant to the eligibility and which might have resulted in a proper determination that the foreign national is not eligible for the benefit.

28. [^]

See Matter of Barcenas-Barrera, 25 I&N Dec. 40 (BIA 2009). See Matter of Villanueva, 19 I&N Dec. 101, 103 (BIA 1984).

29. [^]

See Matter of Barcenas-Barrera, 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).

30. [^]

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, 26 I&N Dec. 437 (BIA 2014).

31. [^]

See Matter of Richmond, 26 I&N Dec. 779, 786-787 (BIA 2016). See Crocock v. Holder, 670 F.3d 400 (2nd Cir. 2012).

32. [^]

See Kungys​ v. United States​, 485 U.S. 759, 770 (1988). A false claim has a natural tendency to influence the official decision to grant or deny the benefit if the person would not obtain the benefit on the true facts, or if the false claim tends to cut off a line of inquiry, which is relevant to the eligibility and which might have resulted in a proper determination that the foreign national is not eligible for the benefit.

33. [^]

See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

34. [^]

See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013). See Matter of F-, 9 I&N Dec. 54 (BIA 1960).

35. [^]

See Kechkar v. Gonzales, 500 F.3d 1080 (10th Cir. 2007).

36. [^]

See Castro v. Attorney Gen. of U.S., 671 F.3d 356, 368 (3rd Cir. 2012). According to the court, the Immigration Judge’s (IJ) and the BIA conclusion that Castro made a false claim of U.S. citizenship for the purpose of evading detection by immigration authorities seemed to have been built solely on the assumption that this was a reasonable purpose to ascribe to Castro because he was undocumented. Therefore, the court decided that the BIA and the IJ erred in coming to this conclusion. The purpose imputed by the BIA to Castro would have applied to virtually any false claim to citizenship made by a foreign national unlawfully present in the country because the absence of legal status always provides a reason to wish to avoid the attention of DHS. Therefore, the construction threatened to read the limiting language—the requirement that the “purpose or benefit” be “under” the INA or any other federal or state law—out of INA 212(a)(6)(C)(ii) entirely.

37. [^]

See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

38. [^]

See Matter of Bett, 26 I&N Dec. 437 (BIA 2014).

39. [^]

This conclusion is consistent with the rationale of Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

40. [^]

See Department of State Cable (no. 97-State-174342) (September 17, 1997). However, falsely claiming citizenship on behalf of another foreign national may make the foreign national inadmissible for alien smuggling. See Matter of M-R, 6 I&N Dec. 259, 260 (BIA 1954).

41. [^]

See Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010). See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section A, “Inspected and Admitted” or “Inspected and Paroled” [7 USCIS-PM B.2(A)(2)].

42. [^]

See Reid v. INS, 420 U.S. 619 (1975). See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013). See Mattter of S-, 9 I&N Dec. 599 (BIA 1962).

43. [^]

Similarly, a lawful permanent resident (LPR) returning from a temporary trip abroad is not considered to be seeking admission or readmission to the United States unless of one of the factors in INA 101(a)(13)(C) is present. See Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1998). Because the returning LPR is not an arriving alien who is an applicant for admission unless one of the factors in INA 101(a)(13)(C) is present, the foreign national is not inspected as an arriving alien. If the foreign national makes a false claim to LPR status at a port-of-entry and if the foreign national is permitted to enter, then the foreign national has not been admitted for purposes of INA 101(a)(13)(A).

45. [^]

For more information, see Section D, Knowledge that Claim Was False, Subsection 4, Lack of Capacity [8 USCIS-PM K.2(D)(4)].

46. [^]

See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of M-, 9 I&N Dec. 118 (BIA 1960) (also cited by Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999)). See 9 FAM 302.9-4(B)(3)(f), Timely Retraction.

47. [^]

“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 Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949). See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). See Matter of Namio, 14 I&N Dec. 412 (BIA 1973), referring to Matter of M-, 9 I&N Dec. 118 (BIA 1960) and Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. 1949).

48. [^]

See Matter of Namio, 14 I&N Dec. 412 (BIA 1973).

49. [^]

See Matter of Namio, 14 I&N Dec. 412 (BIA 1973).

50. [^]

See Llanos-Senarrilos v. United States, 177 F.2d 164, 165 (9th Cir. 1949).