Criminal Defense of Immigrants

A person, including a juvenile, is inadmissible if the DHS or immigration court finds s/he made a false claim of United States citizenship in order to obtain any benefit under the immigration laws.[208]  To trigger deportation, the act must have occurred on or after September 30, 1996, the effective date of IIRAIRA, which added this ground to the law.[209] 

                Counsel have successfully argued that if someone other than the minor stated the minor was a U.S. citizen by presenting invalid documents at the border, it was not the child who made a false claim to U.S. citizenship or engaged in visa fraud. The child merely made an entry without inspection.  In an unpublished decision, an immigration judge held that a 16-year-old minor unaccompanied by her parents who presented her U.S. citizen sister’s birth certificate to inspectors at the border, but then later revealed her actual identity and status, lacked the capacity to make false claims or misrepresentations.[210]  See § 17.28, infra.

                Various defenses may be available to a noncitizen who was under 18 with respect to a false claim of United States citizenship:

                (1)  Counsel can argue that a minor does not have the legal capacity to make a false claim to United States citizenship.

                (2)  Counsel can argue that a noncitizen’s admission, made at a CIS interview, is insufficient to constitute a false claim to U.S. citizenship.  The Eighth Circuit, however, rejected this argument, but did not reach the “purpose and benefit” argument since it was not raised in the court below.  The court found an admission of a claim of citizenship at a CIS interview to be sufficient to constitute a false claim of citizenship.[211]

                (3)  A false claim to United States citizenship is not a bar to 10-year cancellation of removal.  See § 24.5, infra.

                (4)  A waiver under INA § 209(c) waives the false claim to U.S. citizenship, since it waives all grounds of inadmissibility under INA § 212.  See § 24.20, infra.

[208] INA § 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii).

[209] IIRAIRA § 344(a).

[210] For the arguments raised, see Children Lack Capacity to Make False Claims or Misrepresentations, IJ Holds, 83 Interpreter Releases 775 (Apr. 24, 2006).

[211] Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004)