(C) Unlawful Presence Over Six Months or a Year (3/10 Year Bars).  A person who has accrued more than 180 days, but less than one year of unlawful presence (i.e., time in the United States without lawful status) is barred from lawfully re-entering the United States for three years after they voluntarily depart the United States.[135]  Note: if the person departs after immigration proceeding commence, this bar does not apply.[136]

A person who has accrued one year or more unlawful presence is barred for 10 years from re-immigrating lawfully, regardless of whether they depart voluntarily or after immigration proceedings commence.[137]  Those who attempt to re-enter the United State illegally after accruing one year or more of unlawful presence are also inadmissible.[138] 

 

There are various rules for calculating unlawful presence that are beyond the scope of this discussion.  For example, any unlawful presence prior to April 1, 1997 is not counted, and certain noncitizens admitted on student visas may not accrue unlawful status even after they violate the conditions of the visa by working or quitting school.[139]

[135] INA § 212(a)(9)(B)(i)(I), 8 U.S.C. § 1182(a)(9)(B)(i)(I).

[136] Cable, DOS, No. 98-State-060539 (Apr. 4, 1998), posted on AILA InfoNet at Doc. No. 98040490.

[137] INA § 212(a)(9)(B)(i)(II), 8 U.S.C. § 1182(a)(9)(B)(i)(II).

[138] INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(II).

[139] Memo, Pearson, Exec. Assoc. Comm. Field Operations (HQADN 70/21.2.24-P, AD 00-07) (Mar. 3, 2000), posted on AILA InfoNet at Doc. No. 00030774.

USE OF SOCIAL SECURITY NUMBER
Flores-Figueroa v. United States, ___ U.S. ___, 129 S.Ct. 1886 (May 4, 2009) (use of fake SSN, in violation of 18 U.S.C. 1028A(a)(1), is not identity theft since the offense does not require, as an element, knowledge that the means of identification at issue belonged to another person).

INADMISSIBILITY - HIV/AIDS
The Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (Jul. 30, 2008) removes the statutory bar, formerly at INA 212(a)(1)(A)(i), 8 U.S.C. 1182(a)(1)(A)(i), to immigration and travel to the United States for individuals living with HIV/AIDS. However, HIV/AIDS remains on the Dept. of Health & Human Services lists of communicable diseases that must be waived to enter the United States.

BIA

RELIEF - IMPUTING KNOWLEDGE OF PARENTS ONTO CHILD
Mushtaq v. Holder, __ F.3d __ (9th Cir. Sept. 23, 2009) (BIA correctly imputed parents knowledge of inadmissibility to petitioner in denying application for waiver under INA 212(k)).

GOOD MORAL CHARACTER - FALSE CLAIM TO US CITIZENSHIP - I-9 FORM
Matter of Guadarrama, 24 I&N Dec. 625 (BIA 2008) (a noncitizen who made a false claim of citizenship by checking the "citizen or national" box on an I-9 is not necessarily a person lacking in good moral character).

INADMISSIBILITY - UNLAWFUL PRESENCE BAR
Matter of Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007) (noncitizen who is unlawfully present in the United States for one year, leaves the United States, and then seeks admission within 10 years of departure, is inadmissible under INA 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(2)(B)(i)(II), even if the departure was not made pursuant to an order of removal and was not a voluntary departure in lieu of being subject to removal proceedings or at the conclusion of removal proceedings).

INADMISSIBLITY - UNLAWFUL PRESENCE BAR
Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007) (to be inadmissible under INA 212(a)(9)(C)(i)(I), 8 U.S.C. 1182(a)(9)(C)(i)(I) (2000), a noncitizen must leave the United States after accruing an aggregate period of "unlawful presence" of more than one year and thereafter reenter, or attempt to reenter, the United States without being admitted).

INADMISSIBILITY - VISA FRAUD - TIMELY RETRACTION
Counsel can argue that a timely retraction at first opportunity of false claim to U.S. Citizenship and other fraudulent claims may cure visa fraud. 9 FAM 40.63 N. 4.6; Matter of M, 9 I. & N. Dec. 118 (BIA 1960); Matter of RR, 3 I. & N. 823 (BIA 1949). Thanks to Andres C. Benach.

INADMISSIBILITY - VISA FRAUD - MATERIALITY
Matter of S&BC, 9 I. & N. Dec. 436, 447 (BIA 1960; A.G. 1961) ("The test of materiality which in my judgment will best effectuate the objectives of the Act is the following: A misrepresentation made in connection with an application for visa or other documents, or with entry into the United States, is material if either (1) the alien is excludable on the true facts, or (2) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he be excluded.").

FALSE CLAIM TO US CITIZENSHIP - INTENT TO GAIN OTHER BENEFITS THAN THOSE UNDER THE INA OR STATE LAW
In a prosecution charging a violation of 18 U.S.C. 1015(e), for making a false claim to U.S. Citizenship on an application to obtain a private security guard license from the county of residence, counsel can argue that an application for a private security guard license was not a benefit under either the INA or state law. See the following link for various State "benefits": http://www.govbenef its.gov/govbenef its_en.portal?_nfpb=true&_pageLabel=gbcc_ page_locate_ state. In some cases, the employer, not the employee, completes the I-9. Thanks to Raymond Bolourtchi.

FALSE STATEMENTS - FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
A person who falsely answered "no" to the question on the naturalization and other applications which asks whether the applicant has ever knowingly committed a crime for which s/he has not been indicted, can argue that the question violates the constitutional privilege against self-incrimination, since an answer could provide a link in the chain of evidence necessary for a criminal prosecution for perjury or false statements. E.g., 18 U.S.C. 1001(a)(3), 1015(a). This principle might bar criminal prosecution under that theory, and might also be considered as a defense to a visa fraud allegation based upon that answer.

First Circuit

IMMIGRATION OFFENSES - VISA FRAUD - ELEMENTS
United States v. Boskic, 545 F.3d 69 (1st Cir. Oct. 22, 2008) ("The elements of a 1546(a) violation are: (1) the defendant made a false statement, (2) the statement was made knowingly and (3) under oath, (4) the statement concerns a "material fact," (5) and the statement was made in an application required by the United States immigration laws and regulations. See 18 U.S.C. 1546(a); United States v. Chu, 5 F.3d 1244, 1247 (9th Cir.1993). Boskic explicitly challenges only the sufficiency of the evidence on the first element-whether he made false statements on his immigration forms. However, resolving that issue requires us to consider his knowledge as well because, as we shall explain, whether his answers were false depends on his understanding of the questions asked of him. See, e.g., United States v. DeZarn, 157 F.3d 1042, 1044 (6th Cir.1998) ("[T]he crime of perjury depends not only upon the clarity of the questioning itself, but also upon the knowledge and reasonable understanding of the testifier as to what is meant by the questioning....").

Second Circuit

INADMISSIBILITY"FALSE CLAIM TO UNITED STATES CITIZENSHIP
Crocock v. Holder, 670 F.3d 400 (2d Cir. Feb. 23, 2012) (checking the citizen or national box on an I"9 Employment Eligibility Verification Form, is a false claim of citizenship; rejecting the argument that the I-9 form is ambiguous, because it is the petitioners burden under 8 U.S.C. 1255(a), to demonstrate that he is not inadmissible).

INADMISSIBILITY - TERRORISM - MATERIAL SUPPORT -- RETROACTIVITY
Am. Academy of Religion v. Napolitano, 573 F.3d 115 (2d Cir. Jul.17, 2009) (ground of inadmissibility under INA 212(a)(3)(B)(i)(I), 8 U.S.C. 1182(a)(3)(B)(i)(I); REAL ID Act 2005, 103(d), 119 Stat. 302, 308-09, for those who contributed funds to a terrorist organization was validly applied retroactively to contributions made before the provision was enacted).

INADMISSIBILITY - TERRORISM - MATERIAL SUPPORT - KNOWLEDGE REQUIREMENT
Am. Academy of Religion v. Napolitano, 573 F.3d 115 (2d Cir. Jul.17, 2009) (ground of inadmissibility under INA 212(a)(3)(B)(i)(I), 8 U.S.C. 1182(a)(3)(B)(i)(I); REAL ID Act 2005, 103(d), 119 Stat. 302, 308-09, for those who contributed funds to a terrorist organization has a knowledge requirement that required the consular officer to find that the applicant knew his contributions provided material support; the record does not prove the consular officer confronted the applicant with the allegation that he knowingly rendered material support to a terrorist organization, and thereby denied the applicant the opportunity to satisfy the provision that exempts him from inadmissibility if he can demonstrate that he did not know, and should not reasonably have known, that the organization was a terrorist organization).

RELIEF - INADMISSIBILITY - 10-YEAR BAR - ADJUSTMENT OF STATUS
Mora v. Mukasey, 550 F.3d 231 (2d Cir. Dec. 16, 2008) (noncitizens inadmissible under INA 212(a)(9)(C)(i)(I) because they entered the United States after accruing more than one year unlawful presence are unable to adjust status under INA 245(i); deferring to Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007)).

Third Circuit

INADMISSIBILITY " ALIEN SMUGGLING BAR
Parra-Rojas v. Attorney General U.S., ___ F.3d ___, ___, 2014 WL 1230001 (3d Cir. Mar. 26, 2014) (federal conviction of Bringing In or Harboring Aliens for Financial Gain, in violation of INA 274(a)(2)(B)(ii), 8 U.S.C. 1324(a)(2)(B)(ii), did not trigger inadmissibility under INA 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i) (the smuggling bar), which renders an alien inadmissible if he has knowingly ... encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law, because the actual conduct, rather than a conviction, determines this ground of inadmissibility; here, Petitioner had no involvement with the aliens prior to their entry to the United States, did not provide any assistance, financial or otherwise, in their entry, and did not commit any other affirmative act that encouraged, induced, assisted, abetted, or aided the aliens' entry, as required by 1182(a)(6)(E)(i).)

INADMISSIBILITY " ALIEN SMUGGLING BAR
Parra-Rojas v. Attorney General U.S., ___ F.3d ___, ___, 2014 WL 1230001 (3d Cir. Mar. 26, 2014) (federal conviction of Bringing In or Harboring Aliens for Financial Gain, in violation of INA 274(a)(2)(B)(ii), 8 U.S.C. 1324(a)(2)(B)(ii), did not trigger inadmissibility under INA 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i) (the smuggling bar), which renders an alien inadmissible if he has knowingly ... encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law, because the actual conduct, rather than a conviction, determines this ground of inadmissibility; here, Petitioner had no involvement with the aliens prior to their entry to the United States, did not provide any assistance, financial or otherwise, in their entry, and did not commit any other affirmative act that encouraged, induced, assisted, abetted, or aided the aliens' entry, as required by 1182(a)(6)(E)(i).)

INADMISSIBILITY " ALIEN SMUGGLING BAR " DEFINITION OF ENTRY
Parra-Rojas v. Attorney General U.S., ___ F.3d ___, ___, 2014 WL 1230001 (3d Cir. Mar. 26, 2014) (In the context of immigration law, to enter is a term of art referring to an alien crossing the United States border free from official restraint. United States v. Gonzalez"Torres, 309 F.3d 594, 598 (9th Cir.2002); see also United States v. Rivera"Relle, 333 F.3d 914, 919 (9th Cir.2003). Accordingly, to be held inadmissible for having encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States, 1182(a)(6)(E)(i), an individual must have performed one of these actions with respect to the actual entry of an alien into the United States. See also Tapucu v. Gonzales, 399 F.3d 736, 740 (6th Cir.2005) ([T]he provision ... requires an affirmative and illicit act of assistance in shepherding someone across the border.).).

INADMISSIBILITY"FALSE CLAIM TO UNITED STATES CITIZENSHIP"PURPOSE OR BENEFIT UNDER FEDERAL OR STATE LAW
Castro v. Attorney General, 671 F.3d 356 (3d Cir. Feb. 14, 2012) (noncitizen falsely representing himself as a citizen in the course of a police arrest was not for a "purpose or benefit" under federal or state law, for purposes of INA 212(a)(6)(C)(ii), 8 U.S.C. 1182(a)(6)(C)(ii); citizenship status was irrelevant to the police officer to whom the statement was made and there was no evidence that the police would have reported respondent to the DHS); compare Matter of Barcenas"Barrera, 25 I. & N. Dec. 40, 44 (BIA 2009), aff'd sub nom. Barcenas"Barrera v. Holder, 394 F. App'x 100 (5th Cir. 2010), cert. denied, """ U.S. """", 131 S.Ct. 1052, 178 L.Ed.2d 866 (2011) (false claim on a U.S. passport application was for a benefit, the passport, under federal law); Muratoski v. Holder, 622 F.3d 824, 827"29 (7th Cir. 2010); Rodriguez v. Gonzales, 451 F.3d 60, 65 (2d Cir. 2006); Valadez"Munoz v. Holder, 623 F.3d 1304, 1306"07, 1309 (9th Cir. 2010), cert. denied, """ U.S. """", 132 S.Ct. 106, 181 L.Ed.2d 32 (2011); (false claims of U.S. citizenship made orally or in writing to immigration officials for the purpose of gaining entry or admission into the United States); Valenzuela"Solari v. Mukasey, 551 F.3d 53, 54 (1st Cir. 2008); Jamieson v. Gonzales, 424 F.3d 765, 768 (8th Cir. 2005); Kechkar v. Gonzales, 500 F.3d 1080, 1088"84 (10th Cir. 2007) (verifying a job applicant's eligibility to work in the United States); Naser v. Gonzales, 123 F. App'x 624, 624"25 (5th Cir. 2005) (per curiam); Dwumaah v. Attorney General, 609 F.3d 586, 589 (3d Cir. 2010) (per curiam) (upholding BIA determination that an individual was removable for falsely claiming to be a U.S. citizen on an application for a federal student loan, where U.S. citizens are eligible for federal student loans, whereas undocumented immigrants are not, under 20 U.S.C. 1091(a)(5)); but see Hassan v. Holder, 604 F.3d 915, 928"29 (6th Cir. 2010) (government had not established that a false claim to U.S. citizenship made on a Small Business Administration loan application was made for a purpose or benefit under a federal law, since the applicant's immigration status was irrelevant to the loan application, and no evidence suggested that the applicant believed that claiming to be a U.S. citizen would raise the probability that his application would be approved).

GROUNDS OF INADMISSIBILITY " PERMANENT BAR UNDER INA 212(a)(9)(C) " JURISDICTION TO CONSIDER READMISSION
Sarango v. Att'y Gen. U.S., __ F.3d __ (3d Cir. Jun. 30, 2011) (immigration judge lacks jurisdiction to adjudicate request to reapply for admission under INA 212(a)(9)(C)(ii)).

IMMIGRATION OFFENSES " FALSE CLAIM TO US CITIZENSHIP
Dwumaah v. Attorney General of U.S., 609 F.3d 586 (3d Cir. Apr. 12, 2010) (DHS met its burden of proving that the petitioner falsely claimed citizenship on at least two occasions in connection with federal student loan applications).

ADJUSTMENT OF STATUS - MISREPRESENTANTIONS
Garcia v. Atty Gen. of U.S., 545 F.3d 252 (3d Cir. Oct. 28, 2008) (five-year statute of limitations period for Attorney General to rescind a noncitizens adjustment of status on ground that noncitizen was ineligible for such adjustment, under 8 U.S.C. 1256(a), also bars DHS from charging deportability because she was inadmissible at time of entry or adjustment of status under INA 212(a)(7)(A)(i)(I), after a five year period).

Fourth Circuit

INADMISSIBILITY " FALSE CLAIM TO US CITIZENSHIP " I-9 FORM
Dakura v. Holder, ___ F.3d ___ (4th Cir. Nov. 24, 2014) (an alien who falsely claims citizenship on a Form I-9 is thereby rendered inadmissible pursuant to the bar relating to false claims to U.S. citizenship). http://www.ca4.uscourts.gov/Opinions/Published/132246.P.pdf

INADMISSIBILITY " VISA FRAUD " SUFFICIENCY OF THE EVIDENCE
Yang v. Holder, 770 F.3d 294 (4th Cir. Oct. 29, 2014) (BIA erred in finding that petitioner was inadmissible under 8 U.S.C. 1182(a)(6)(C)(i), since the record lacked substantial evidence to support a determination that noncitizen made deliberate and voluntary misrepresentations to procure an immigration benefit, even though Immigration Judge found noncitizens testimony regarding asylum claim was not credible).

FALSE STATEMENTS - MATERIALITY - STATEMENTS ON I-9 FORM
United States v. Garcia-Ochoa, 607 F.3d 371 (4th Cir. Jun. 11, 2010) (statement on I-9 form that defendant was "citizen or national" of the United States was material for purposes of sustaining convictions under 18 U.S.C. 1001 and 1546(a), even though the defendant was eligible to work through TPS, since the I-9 form may be used for other purposes, including later investigation by ICE).

Fifth Circuit

RELIEF " ADJUSTMENT OF STATUS INADMISSIBILITY " UNLAWFUL PRESENCE BAR
Bokhari v. Holder, 622 F.3d 357 (5th Cir. Sept. 29, 2010) (employment authorization under 8 C.F.R. 274a.12(b)(20) is not lawful status as defined in 8 C.F.R. 1245.1(d)(1)(ii)).

DEPORTATION - INADMISSIBILITY - FALSE CLAIM TO U.S. CITIZENSHIP
Theodros v. Gonzales, 490 F.3d 396 (5th Cir. Jun. 25, 2007) (false claim of U.S. citizenship for purposes of obtaining private-sector employment triggers removability under 8 U.S.C. 1227(a)(3)(D) and 1182(a)(6)(C)(ii)(I)), distinguishing United States v. Karaouni, 379 F.3d 1139, 1145 (9th Cir. 2004).

Sixth Circuit

INADMISSABILITY " CRIME-RELATED GROUNDS OF INADMISSIBILITY " FALSE CLAIM TO U.S. CITIZENSHIP " EMPLOYMENT
Ferrans v. Holder, 612 F.3d 528 (6th Cir. Jul. 12, 2010) (false claim to citizenship for purposes of employment qualifies as a false claim of citizenship for an immigration benefit under INA 212(a)(6)(C)(ii)(I), thus disqualifying the noncitizen from adjustment of status).

FALSE CLAIM TO CITIZENSHIP - APPLICATION FOR BUSINESS LOAN DID NOT CONSTITUTE AN IMMIGRATION PURPOSE
Hassan v. Holder, __ F.3d __ (6th Cir. May 11, 2010) (to establish false claim to citizenship, DHS must assert both that the claim was made, and that it was made for an immigration "purpose or benefit"; government failed to establish that applying for a loan was an immigration purpose or benefit to sustain the ground of removal, since it failed to establish how immigration status would affect application for a business loan).

INADMISSIBILITY - VISA FRAUD - INTENT TO DECEIVE
Parlak v. Holder, 578 F.3d 457 (6th Cir. Aug. 24, 2009) (intent to deceive not required to find noncitizen inadmissible under INA 212(a)(6)(C)(i), as having made a willful misrepresentation of a material fact), following Mwongera v. INS, 187 F.3d 323, 330 (3rd Cir. 1999); Witter v. INS, 113 F.3d 549, 554 (5th Cir. 1997); Matter of Kai Hing Hui, 15 I. & N. Dec. 288, 289-90 (BIA 1975).

Eighth Circuit

INADMISSIBILITY " FALSE CLAIM TO US CITIZENSHIP " EVIDENCE
Mayemba v. Holder,776 F.3d 542 (8th Cir. Jan. 13, 2015) (Form I-9 is acceptable evidence before immigration court of proof of making a false claim of U.S. citizenship for immigration purposes; even if the I-9 form is expressed in the disjunctive[citizen or national], additional evidence may be examined to establish noncitizens intent upon checking the box, including testimony and other applications).

INADMISSIBILITY " FALSE CLAIM TO UNITED STATES CITIZENSHIP
Sandoval v. Holder, 641 F.3d 982 (8th Cir. 2011) (granting petition for review and remanding to the BIA to address (1) whether unaccompanied alien children can be subject to permanent inadmissibility for making a false claim of U.S. citizenship, and (2) whether, if unaccompanied children can be subject to inadmissibility for false claims of U.S. citizenship, the BIA must apply a more liberal rule for timely recantation of such statements that takes into account their relative immaturity).

INADMISSIBILITY - FALSE CLAIM TO US CITIZENSHIP BY SIGNING I-9 FORM
Hashimi v. Mukasey, ___ F.3d ___ (8th Cir. Jul. 16, 2008) (substantial evidence supported IJ's determination not to credit petitioner's testimony that he intended merely to represent on an I-9 form that he was a non-citizen national, since evidence showed petitioner had presented himself as being born in Washington state and thus able to work in the United States).

FALSE CLAIM TO CITIZENSHIP - EMPLOYMENT IS A "BENEFIT" UNDER THE INA
Kirong v. Mukasey, 529 F.3d 800 (8th Cir. Jun. 20, 2008) (noncitizen who checks on I-9 form that he is a US Citizen or National is seeking a "benefit" under the Act), following Rodriguez v. Mukasey, 519 F.3d 773, 776 (8th Cir.2008).

FALSE CLAIM TO CITIZENSHIP - CITIZEN V. NATIONAL
Kirong v. Mukasey, 529 F.3d 800 (8th Cir. Jun. 20, 2008) (where the record is ambiguous as to whether noncitizen intended to indicate he was a United States citizen or a National by checking "citizen or nation" box on I-9 form, noncitizen has failed to meet his burden to show clearly and beyond doubt that he is not inadmissible to the United States as a noncitizen who has made a false claim to U.S. citizenship).

INADMISSIBILITY - VISA FRAUD - CHECKING CITIZEN OR NATIONAL BOX ON FORM I-9 TO GET EMPLOYMENT CONSTITUTES VISA FRAUD
Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. Mar. 19, 2008) (noncitizen who checks "citizen or national of the United States" box on a Form I-9 to falsely represent himself as a U.S., citizen to secure employment with a private employer has falsely represented himself for a purpose or benefit under the INA).

POSSESSION OF UNSIGNED COUNTERFEIT SOCIAL SECURITY CARD
United States v. Pool-Chan, 453 F.3d 1092 (8th Cir. Jul. 18, 2006) (federal conviction of possession of counterfeit social security card violates 18 U.S.C. 1546(a), even if the card is not signed).

Ninth Circuit

INADMISSIBILITY " UNLAWFUL PRESENCE " PERMANENT BAR " RETROACTIVITY
Carrillo de Palacios v. Holder, ___ F.3d ___, 2011 WL 2450985 (9th Cir. Jun. 21, 2011) (noncitizen is inadmissible under INA 212(a)(9)(C)(i)(I), 8 U.S.C. 1182(a)(9)(C)(i)(I) where the noncitizen was unlawfully present in the United States for more than one year before April 1, 1997, and subsequently re-entered the United States without admission after April 1, 1997; noncitizen was therefore barred from adjusting status under INA 245(i)). NOTE: This is distinct from a noncitizen who both departed and re-entered the United States prior to April 1, 1997.

INADMISSIBILITY " UNLAWFUL PRESENCE " PERMANENT BAR " WAIVER
Carrillo de Palacios v. Holder, ___ F.3d ___, 2011 WL 2450985 (9th Cir. Jun. 21, 2011) (waiver of inadmissibility under INA 212(a)(9)(C)(ii), 8 U.S.C. 1182(a)(9)(C)(ii) requires that the noncitizen remain outside the United States for at least 10 years following the most recent departure).

INADMISSIBILITY " FALSE CLAIM TO U.S. CITIZENSHIP " TIMELY RECANTATION DOCTRINE
Valadez-Munoz v. Holder, 623 F.3d 1304 (9th Cir. Oct. 28, 2010) (BIA did not improperly determine that petitioner had "falsely represented himself . . . to be a citizen of the United States" under INA 212(a)(6)(C)(ii)(I), 8 U.S.C. 1182(a)(6)(C)(ii)(I); recantation was not timely he failed to correct his misrepresentation prior to its exposure as a falsity ).

RELIEF - FRAUD WAIVER
Federiso v. Holder, 605 F.3d 695 (9th Cir. May 19, 2010) (noncitizen whose mother is a USC continues to be "the son . . . of a citizen of the United States, for purposes of INA 237(a)(1)(H)(i)(I), even after his mothers death), interpreting Matter of Federiso, 24 I. & N. Dec. 661 (BIA 2008).

RELIEF - FRAUD WAIVER
Corona-Mendez v. Holder, 593 F.3d 1143 (9th Cir. Feb. 3, 2010) (waiver of misrepresentations at time of admission, under INA 237(a)(1)(H) is only available where the applicant is not also inadmissible on other grounds (i.e., illegal re-entry) not arising out of the same temporal incident; this waiver may not be combined with other waivers to avoid this bar).

IMMIGRATION OFFENSES - FALSE STATEMENT
United States v. Youssef, 547 F.3d 1090 (9th Cir. Nov. 5, 2008) (federal conviction for violation of 18 U.S.C. 1015(a), making a false statement in an immigration document, does not require the false statement to be material; even though prior conviction qualified for the petty offense exception to inadmissibility, and was therefore immaterial to admission, the noncitizen was required to disclose the fact of conviction).

Tenth Circuit

IMMIGRATION OFFENSES - VISA FRAUD - ELEMENTS
United States v. Phillips, 543 F.3d 1197 (10th Cir. Oct. 1, 2008) (federal convictions for willingly making a false statement to a federal agency and immigration fraud, in violation of 18 U.S.C. 1546(a), affirmed in part and reversed in part where defendants' conduct did not fall within the plain language of the 1546(a), but claim of insufficient evidence was rejected).

Other

PRACTICE TIP " FALSE CLAIM TO US CITIZENSHIP " CLAIM OF BIRTH IN US IS INSUFFICIENT TO SUPPORT FALSE CLAIM TO US CITIZENSHIP SINCE SOME PERSONS BORN IN THE US ARE NOT US CITIZENS
There is a small, but legally significant, subset of persons born in the U.S. who are not U.S. citizens. Therefore, a claim of birth in the U.S. is insufficient to establish an allegation of making a false claim to U.S. citizenship, unless DHS can allege and prove that in the particular case, the same benefits could not have been obtained by someone born in the U.S. but who was nevertheless not a U.S. citizen. Thanks to David Link.

INADMISSIBILITY " HEALTH RELATED " ALCOHOL ABUSE
The October, 2014 issue of VOICE includes an article concerning alcohol abuse and waivers of inadmissibility. http://www.aila.org/content/default.aspx?docid=50326

BIBLIOGRAPHY " CRIMINAL DEFENSE " COLLATERAL CONSEQUENCES
Margy Love, Jenny Roberts, and Cecilia Klingele, Collateral consequences of Criminal Convictions: Law, Policy, and Practice (NACDL Press and Thomson Reuters 2013). This book covers general types of collateral consequences, attorney's duties regarding consequences, constitutional challenges to consequences, access to and the use of criminal records, regulation of employment and occupational licensing, and restoration of rights after a conviction. It also provides insights and practice guidance. http://legalsolutions.thomsonreuters.com/law-products/Treatises/Collateral-Consequences-of-Criminal-Convictions-Law-Policy-and-Practice-2012-2013-ed/p/100088207 INADMISSIBILITY " PERMANENT BAR " 212(A)(9)(C) " AILA AMICUS BRIEF " DOES UNLAWFUL PRESENCE AS MINOR TRIGGER THIS BAR http://www.aila.org/content/default.aspx?docid=36593

INADMISSIBILITY " PERMANENT BAR " 212(A)(9)(C) " AILA AMICUS BRIEF " DOES UNLAWFUL PRESENCE AS MINOR TRIGGER THIS BAR
http://www.aila.org/content/default.aspx?docid=36593

INADMISSIBILITY - CONTROLLED SUBSTANCES - ADDICT OR ABUSER
Effective June, 1, 2010, the department of state updated 9 FAM 40.11 to reflect new Technical Instructions for Physical or Mental Disorders and Associated Harmful Behavior and Substance Related Disorders. All prior guidance is superseded.

OVERVIEW - UNLAWFUL PRESENCE
Consolidation of Guidance Concerning Unlawful Presence May 6, 2009 AFM revision, USCIS. http://www.nafsa.org/_/Document/_/uscis_consolidated_guidance.pdf

IMMIGRATION OFFENSES " SOCIAL SECURITY CARD IS NOT AN IDENTIFICATION CARD
United States v. Murillo, ___ F.Supp.2d ___, 2008 WL 697160 (N.D. Iowa Mar. 13, 2008) (a "social security card" does not constitute a "means of identification" within the meaning of 18 U.S.C. 1546(b) and 8 U.S.C. 1324a(b)); United States v. Tyson Foods, Inc., 258 F. Supp. 2d 809 (E.D. Tenn. 2003) (a "social security card" is not a "means of identification" within the meaning of 18 U.S.C. 1546(b), even if this creates a "loophole" or appears inconsistent with 18 U.S.C. 1546(a)).

JUVENILE - CAN MINORS MAKE FALSE CLAIMS TO US CITIZENSHIP?
"Children Lack Capacity to Make False Claims or Misrepresentations, IJ Holds," 83 Interpreter Releases 775-776 (April 24, 2006).

FALSE CLAIM TO U.S. CITIZENSHIP
If false claim was made on or after September 30, 1996, counsel can try to argue timely and voluntary recantation at the time the false claim was made (i.e. during primary or secondary inspection). See Matter of M-, 9 I&N Dec. 118 (BIA 1960); Matter of R-R-, 3 I&N Dec. 823 (BIA 1949). Counsel should carefully go over the encounter with the client, and review FOIA. Dont assume that all there is in the file for DHS to rely on is the I-213 and sworn statement. There is a little-known internal memo that may have more details of the secondary inspection encounter, and it will not be included in the FOIA request.

INADMISSIBILITY - ATTEMPT TO REENTER AFTER REMOVAL - EFFECTIVE DATE - ATTEMPT TO REENTER MUST OCCUR ON OR AFTER APRIL 1, 1997 TO TRIGGER INADMISSIBILITY UNDER THIS GROUND
A noncitizen who is removed and reenters, or attempts to reenter, the United States is inadmissible. INA 212(a)(9)(C)(i)(II). Paul Virtue authored a memorandum, dated June 17, 1997, that states: "Section 212(a)(9)(C)(i)(II) of the Act applies to those aliens ordered removed before or after April 1, 1997, and who enter or attempt to reenter the United States unlawfully any time on or after April 1, 1997." A State Department cable, dated April 4, 1998, paragraph 38, states: "Thus, an alien deported prior to 4/1/97 who attempted to enter without inspection on or after 4/1/97 would/would (sic) be ineligible under this provision, whereas an alien in the same circumstances who had attempted reentry without inspection prior/prior (sic) to 4/1/97 would not/not (sic) be subject to this provision." Cable reprinted in 75 Interpreter Releases 543 (April 20, 1998). See also Examples Following the Cable, Example E under 212(a)(9)(C) heading on page 554 (page 12 of 13 in web printout) for application of this policy. (See also 9 FAM 40.93 N1, regarding "Ineligibility under INA 212(a)(9)(C)" which states "the provision would only apply if the illegal reentry and/or attempted re-entry occurred on or after April 1, 1997, the date this visa ineligibility went into effect.") Thanks to Mary OLeary.

FALSE CLAIM TO US CITIZENSHIP - INTENT REQUIREMENT
INA 212(a)(6)(C)(ii) does not have the same "willful" requirement as does INA 212(a)(6)(C)(i). Therefore, the government can argue that judicial decisions concerning willful fraud or misrepresentation do not apply to false claims to citizenship.

FALSE CLAIM TO US CITIZENSHIP BY CHILD
8 CFR 1240.48(b) provides that: "The immigration judge shall not accept an admission of deportability from an unrepresented respondent who is incompetent or under age 16 and is not accompanied by a guardian, relative, or friend; nor from an officer of an institution in which a respondent is an inmate or patient. When, pursuant to this paragraph, the immigration judge may not accept an admission of deportability, he or she shall direct a hearing on the issues."

"In the case of an unaccompanied and unrepresented minor under the age of 16 years, however, [former regulation] 8 C.F.R. 242.16(b) requires that an Immigration Judge may not accept such a minor's admission to an charge of deportability because the minor is presumed to be incapable of determining whether a charge applies to him. However, 8 C.F.R. 242.16(b) does not preclude an Immigration Judge from accepting such a minor's admissions to factual allegations. Minors under the age of 16, even when unaccompanied and unrepresented, are not presumed incapable of understanding the content of those allegations and of determining whether they are true." Matter of Amaya-Castro, 21 I. & N. Dec. 583 (BIA 1996) (emphasis supplied).

By analogy, perhaps a minors statement that she is a U.S. citizen is more akin to a legal conclusion which in immigration court she would not competent to make by herself than a "factual allegation." Thanks to Jonathan Moore.

INADMISSIBILITY - VISA FRAUD - TIMELY RETRACTION DEFENSE
Under the doctrine of timely retraction or recantation, an applicant can use as a defense to inadmissibility under INA 212(a)(6)(C)(i) that s/he timely retracted or recanted the statement. The effect of a timely retraction is that the misrepresentation is eliminated. See Matter of RR, 3 I. & N. Dec. 823 (BIA 1949); Matter of M, 9 I. & N. Dec. 118 (BIA 1960); Matter of RSJ, 22 I. & N. Dec. 863 (BIA 1999)). For the retraction to be effective, it has to be voluntary and without delay (timely). See Matter of RR, 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) (if the witness withdraws the false testimony of his own volition and without delay, and during the same hearing or examination under oath, 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). The alien must correct his or her testimony voluntarily before the conclusion of the proceeding at which he or she gave false testimony, and before being exposed by the adjudicator or government official. See id. Admitting to the false claim of U.S. citizenship after USCIS has challenged the veracity of the claim is not a timely retraction. The BIA also held that an alien's recantation of the false testimony about one year later, and only after it became apparent that the disclosure of the falsity of the statements was imminent, was neither voluntary nor timely. See Matter of Namio, 14 I. & N. Dec. 412 (BIA 1973). A retraction or recantation is only timely if it is made in the same proceeding in which the person gave false testimony. Llanos-Senarillos, 177 F2d at 165 (9th Cir. 1949). Thanks to Raymond Reza Bolourtchi.

IMMIGRATION OFFENSES - NEW AFM CHAPTER
AFM revision: Section 212 (a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators Section 212 (a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators, Revisions to Adjudicator's Field Manual (AFM) to Include a New Chapter 40.6 (AFM Update AD07- 18); USCIS, Mar. 3, 2009: "This memorandum provides guidance, through the creation of a new chapter 40.6 of the Adjudicator's Field Manual (AFM), regarding the interpretation of the grounds of inadmissibility contained in section 212(a) (6) of the Immigration and Nationality Act (the Act), addressing illegal entrants and immigration violators." http://www.uscis.gov/files/nativedocuments/section212_a_6_immi_natl_act_illegal_violators.pdf

FALSE STATEMENTS - FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
A person who falsely answered "no" to the question on the naturalization and other applications which asks whether the applicant has ever knowingly committed a crime for which s/he has not been indicted, can argue that the question violates the constitutional privilege against self-incrimination, since an answer could provide a link in the chain of evidence necessary for a criminal prosecution for perjury or false statements. E.g., 18 U.S.C. 1001(a)(3), 1015(a). This principle might bar criminal prosecution under that theory, and might also be considered as a defense to a visa fraud allegation based upon that answer.