By Attorney Lorella Thomas Hess & Nancy E. Miller
Over 20 years ago, Congress tightened the law regarding the immigration ramifications of knowingly making a false claim to U.S. citizenship for a purpose or benefit under federal or state law.
False claims always rendered a person inadmissible (not eligible for lawful entry) or removable (deportable even if you already are here lawfully). But one who made such a claim was eligible for a waiver of the misrepresentation provided they had a qualifying relative who would suffer extreme hardship if the alien were not permitted to enter or remain in the United States. That waiver still exists for false claims to citizenship made on or before September 30, 1996. However, false claims to U.S. citizenship made on or after October 1, 1996 are no longer waivable. A very limited exception to inadmissibility or removability exists for one who made a false claim if each natural or adopted parent is or was a citizen, the alien permanently resided in the U.S. prior to attaining the age of 16 and the alien reasonably believed at the time of making the claim to citizenship that he was a citizen.
A separate but related ground of removability exists for one who votes in violation of any Federal, State or local constitutional provision, statute, ordinance or regulation. The nuances of that ground of removability are beyond the scope of this article.
If the results are so draconian, why do non-citizens falsely claim to be a U.S. citizen? Like most instances where people misrepresent, they fear that telling the truth will not get them what they want or they are desperate to get that which the false claim will provide them. People come to the United States in order to make a better life for themselves and their family members. Starting in 1996, Congress required that employers confirm that their employees have some lawful status that allows them to work in the United States. Employees were and are required to complete a form called an I-9 which states under what immigration status they are permitted to work. If they claim to be here on a work visa or a green card, they need to show that document to the employer. Strangely enough, if they claim to be a U.S. citizen, they do not need to show proof of that status. As a result, many desperate people check the U.S. citizen box on the form. Under the same rationale, aliens without status will check that they are citizens when they are applying for student loans or mortgages or driver’s licenses in states that require lawful status for that benefit. And, they usually don’t realize what a dreadful position they are putting themselves in.
So, what happens if the non-citizen is remorseful and wracked with guilty feelings and wants to undue the false claim? Is that possible to walk-it-back? The answer is yes, possibly, depending on the facts, under the Doctrine of Timely Retraction. Timely retraction means taking a voluntary action, not under threat of discovery or punishment, with the intent to correct the misrepresentation. What action might be required for a timely retraction is again very dependent on the circumstances of the particular false claim.
A false claim to citizenship, even one that cannot now be cured by timely retraction, is not a complete bar to immigration relief. For example, false claims do not rule out eligibility for S-, T-, or U-visas for criminal informants, trafficking victims, or victims of other serious crimes. Someone who has made a false claim is also eligible for voluntary departure at the conclusion of immigration proceedings, allowing that person to avoid a removal order and forced deportation. Generally, false claims to U.S. citizenship may not statutorily bar an applicant from seeking cancellation of removal for lawful permanent residents or non-lawful permanent residents. However, the false claim presents two issues. To be eligible for cancellation for non-permanent residents, the applicant must show good moral character and false testimony for the purpose of obtaining a benefit under immigration law is a bar to a finding of good moral character. So, an important question is, was the claim false testimony? And, the other issue is whether the immigration judge should favorably exercise discretion on behalf of the one who made a false claim. As in all requests for benefits, the one applying for the relief bears the burden of providing oral and documentary evidence to prove that they are eligible under the law and as an exercise of discretion for the benefit sought.
Congress intentionally made it hard to overcome a false claim to citizenship. But it is possible. The first step is to consult an experienced and knowledgeable immigration lawyer.
