Criminal Defense of Immigrants

(C)  Federal Offense.  “Whoever falsely and willfully represents him- or herself to be a citizen of the United States shall be fined under this title or imprisoned not more than three years or both.”[192]

                This offense has three elements:

(1)       Willful,

(2)       False claim to United States citizenship,[193]

(3)       Conveyed to someone with good reason to inquire into his citizenship status.[194]

The third element was adopted as a limiting construction in response to First Amendment overbreadth challenges.[195]

Because the false claim ground of deportation is conduct based, a conviction under this statute is not required to trigger deportation.  However, the case law interpreting this criminal statute may be useful in determining the scope of the ground of deportation.  Note, however, that the “conveyed to someone with good reason to inquire” language of the federal offense is not necessarily the same as the deportation ground requirement that the offense be committed “any purpose or benefit.”[196]

[192] 18 U.S.C. § 911.  This statute has been in effect since 1948.

[193] See United States v. Karaouni, 379 F.3d 1139 (9th Cir. Aug. 24, 2004) (federal conviction of violating 18 U.S.C. § 911 reversed, since, by checking box on an INS I-9 Employment Eligibility Verification Form next to the following printed statement: “I attest, under penalty of perjury, that I am ... [a] citizen or national of the United States” noncitizen did not thereby represent himself to be a United States citizen, as required to support his conviction of falsely and willfully representing himself to be a citizen of the United States, because no rational juror could find beyond a reasonable doubt that, by checking the box on the I-9 Form, he made a claim to be a U.S. citizen as opposed to a U.S. national and a claim to be a U.S. national, even if false, does not constitute a violation of this statute).

[194] United States v. Romero-Avila, 210 F.3d 1017, 1020-21 (9th Cir. 2000); Chow Bing Kew v. United States, 248 F.2d 466, 469 (9th Cir. 1957).

[195] United States v. Esparza-Ponce, 193 F.3d 1133, 1137-38 (9th Cir. 1999); Smiley v. United States, 181 F.2d 505, 507-08 (9th Cir. 1950).

[196] INA § 237(a)(3)(D)(i), 8 U.S.C. § 1227(a)(3)(D)(i).