The USCIS is updating its policy manual to reflect that a false claim to US citizenship need not be knowingly made. Foreigners who falsely claim to be US citizens in order to receive the benefits of citizenship can be deported. The Matter of Zhang, a case in which an LPR unknowingly bought unlawful documents that claimed he was a U.S. citizen, defined this change.

Matter of Zhang, 27 I&N Dec. 569 (BIA 2019)

The Matter of Zhang clarified that an immigration court doesn’t need to find intent when determining whether a foreigner has made a false claim to citizenship. Previously, the court would need to find that a foreigner intentionally deceived the government for a benefit under the INA. In this instance, Zhang acquired documents that allowed him to obtain a passport and travel outside the U.S. He claimed to be unaware the documents were false, and the travel was prohibited. 

The court in immigration removal proceedings found that the statute pertaining to a false claim of U.S. citizenship did not require that the foreigner knew the claim was false. Although, there are some exceptions noted below.  As such, the USCIS revised its policy manual to reflect the BIA’s determination: knowing that you’re falsely claiming to be a U.S. citizen is not a requisite for being deported from or inadmissible to the U.S.

Effects and Contrasts

Section 237(a)(3)(D)(i) and of the Act provides that an alien is deportable if he “falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit.” The Matter of Zhang also altered section 212(a)(6)(C)(ii)(I), which relates to whether a person is inadmissible to the U.S. when making such a false claim.

These sections contrast with section 212(a)(6)(C)(i), which makes an alien inadmissible if he or she “by fraud or willfully misrepresenting a material fact, seeks to procure a benefit provided under this the INA. However, The Matter of Zhang removed the precedent that someone must knowingly be attempting to acquire a benefit under the INA. This is because the language in each statute reads slightly differently. Therefore, INA 212(a)(6)(C)(ii)(I) does not require that a foreigner know he is falsely claiming U.S. citizenship.

Depending on the legal status of aliens, they can be deported or found inadmissible to the U.S. if they make a false claim to U.S. citizenship, regardless of intent.

Exemptions

Children of US Citizens

Congress exempted foreigners who came to the U.S. before the age of 16. This applies if both their parents are or were U.S. citizens. People who fall into this category must have permanently resided in the U.S. before the age of 16. Additionally, they must have believed they were U.S. citizens.

Asylees

If you are applying for refugee status, or for adjustment of status based on refugee or asylee status, you may apply for a waiver on this ground. Additionally, legalization applicants may be eligible to apply for a waiver of this ground of inadmissibility.  In other words, a false claim to U.S. citizenship does not prevent a successful application for asylum.

Special Immigrant Juveniles

This ground of inadmissibility does not apply to special immigrant juveniles seeking adjustment of status, or to registry applicants.

Timely Retraction

This remains an open question. Old case law allowed for a timely retraction of a false claim to U.S. citizenship. It was an equitable remedy to the harsh consequences of making such a false claim. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 codified the consequences of making a false claim of U.S. citizenship. However, whether or not the concept of a timely retraction carries over to the present day is unclear to this author.