DOS on False Citizenship Claims
FM SECSTATE WASHDC
TO ALL DIPLOMATICE AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY BUJUMBURA
AMEMBASSY SARAJEVO
AMCONSUL GUANGZHOU
INFO USINS WASHDC
Unclas State 174342
Visas, Inform Consuls
E.O. 12958: N/A
Tags: CVIS
Subject: 104-208 Update No. 27 - - False Claims to U.S. Citizenship and Amended 212(a)(6)(C)
Ref: 96 State 239978
1. Summary. An alien who made a false claim to U.S. citizenship prior to Sep. 30, 1996 in order to obtain a U.S. passport, entry into the U.S., or other benefit under the INA is ineligible for a visa under INA 212(a)(6)(C)(I) ("6C1"), provided the false claim was made to a U.S. government official. A 212(d)(3)(A) waiver is available for NIV applicants ineligible under 6C1, and a 212(1) waiver is a available in IV cases if the alien has the requisite family relationship and can establish extreme hardship to the relative. An alien who made or makes a false claim to U.S. citizenship on or after Sep. 30, 1996 in order to obtain a U.S. passport or entry into the U.S., or for any other purpose or benefit under the INA (including employment authorization), or for any purpose or benefit under any other Federal or State law, is inadmissible under (new) INA 212(a)(6)(C)(11) ("6C2"), regardless of whether the false claim was made to a U.S. government official. A 212(d)(3)(A) waiver is available for NIV applicants found ineligible under 6C2, but no/no waiver is available in IV cases. End summary.
2. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) amended INA 212(a)(6)(C) to add a separate ineligibility 212(a)(6)(C) (TI) for aliens who make a false claim to U.S. citizenship to obtain a benefit under the INA (including INA 2-4A relating to employment authorization) or any other Federal or State law. As explained in REFTEL, ALDAC, this provision applies only to false claims to U.S. citizenship made on or after Sep. 30, 1996, the date of IIRAIRA enactment. False claims to U.S. citizenship made prior to Sep. 30, 1996, should be examined under INA 212(a)(6)(C)(I).
False Claims to U.S. Citizenship Falling Under 6C1
3. New INA 212(a)(6)(C)(I) ("6C1") is essentially identical to the pre- IIRAIRA provision, and the FAM provisions (9 FAM 40.63) and rules and procedures which governed 6C cases prior to the enactment of IIRAIRA remain in effect for 6C1 cases under the new law. For 6C1 to apply in the case of a false claim to U.S. citizenship, the alien must have made a false claim or have misrepresented a material fact prior to Sep. 30, 1996, and the alien must have done so in connection with an attempt to obtain entry into the U.S., a U.S. passport, other (entry) documentation, or some other benefit under the INA. A false claim to U.S. citizenship made for some other purpose (e.g., to qualify for Federal welfare or entitlements) would not be a ground of refusal under 6C1. In addition, per 9 FAM 40.63 N4.3 and relevant case law, a false claim to U.S. citizenship would not fall within 6C1 unless it was made to an authorized U.S. official - generally speaking, a State Department or INS officer or other USG employee involved in implementing the INA.
False Claims to U.S. Citizenship Falling Under 6C2
4. False claims to U.S. citizenship made on or after Sep. 30, 1996 should be examined under new INA 212(a)(6)(C)(IL) ("6C2"). This provision significantly expands the scope of the ineligibility related to false claims to U.S. citizenship. 6C2 applies not only to false USCIT to U.S. claims made to obtain U.S. passports, entry into the U.S., or other documentation or benefit under the INA; it also applies to false claims to U.S. citizenship made for any purpose or benefit under any other federal or state law. Thus, a false claim to U.S. citizenship, for example, to obtain welfare benefits would fall within 6C2 (provided the claim was made on or after 9/30/96). A false representation of U.S. citizenship made for the purpose of voting in a federal or state election could also be a basis for a 6C2 finding. (This would be in addition to any ineligibility finding which might apply under the new unlawful voting provision of INA 212(a)(10)(D)). In addition, 212(a)(6)(C)(IL) expressly covers false USCIT claims made for any purpose under INA section 274A, which makes it unlawful to hire an alien who is not authorized to work in the U.S. Thus, an alien’s false claim to U.S. citizenship in order to secure employment in violation of INA 2-4A would justify a 6C2 finding.
5. As noted above, 6C1 only applies to misrepresentations made to Consular Officers, INS officers, or similar USG personnel. Conversely, there is nothing in the language of 6C2 which would require that the false claim be made to a U.S. official involved in implementing some aspect of the INA. On the contrary, since the statute covers false claims to U.S. citizenship made for purposes or benefits unrelated to the INA, the language of the statute would appear to presuppose that in at least some cases the false claim will be made to a federal official outside the Department or INS, or to a State official, or even to a private individual (e.g., in cases where the false claim to citizenship is made to a prospective employer to circumvent INA 274A).
6. In sum, any fact pattern involving a false claim to U.S. citizenship which would have resulted in a 6C finding under the old law will result in a 6C finding under the new law (either under 6C1, for pre-9/30/96 false claims, or under 6C2, for post-9/30/96 false claims). In addition, some cases which would not have resulted in a 6C finding under the old law, because the purpose for the false claim was unrelated to the INA or because the claim was not made to a USG official, may justify a 6C2 finding under the new law, provided the false claim to U.S. citizenship occurred on or after Sep. 30, 1996.
Waivers
7. In NIV cases, A 212(d)(3)(A) waiver is available for both 6C1 and 6C2 ineligibilities. In IV vases, a 212(1) waiver is available in 6C1 cases if the applicant is the spouse, son or daughter of an AMCIT or LPR and refusal of admission to the U.S. would result in extreme hardship to that AMCIT or LPR. (Note that INA 212(1), as amended by IIRAIRA, no longer permits a waiver for parents or AMCITS or LPRs or for cases involving misrepresentation which occurred at least 10 years ago.) There is no/no IV waiver for aliens found ineligible under 6C2. Given the different waiver rules, it is critical to ensure that a false claim to U.S. citizenship has been properly categorized as either a 6C1 or 6C2. If posts have any question about the applicability of 6C1 or 6C2 in a particular case, posts are welcome to seek further guidance from the Department (CA/VO/L/A).
6C Not To Be Confused With 6E
8. In general, subsections 6C1 and 6C2 apply only to applicants who make false claims to U.S. citizenship on their own behalf. (the language of 6C2 expressly refers to an alien "who falsely represents himself or herself to be a citizen of the United States.") 212(a)(6)(C) generally would not apply to an applicant who has falsely claimed that some other alien is a U.S. citizen (unless that fact were somehow material to the applicant’s own eligibility for a visa). However, an applicant in such a case might be ineligible under 6E, if the false claim was an attempt to assist the other alien to enter the U.S. illegally. For example, a visa applicant who had previously submitted a false U.S. birth certificate to the consulate in an attempt to obtain a U.S. passport for the applicant’s child would be ineligible under 6E. Similarly, an alien who falsely vouched for the U.S. citizenship of a companion at a port of entry, knowing in fact that the companion was not an American, would also be 6E. On the other hand, an alien who falsely claim that another alien (e.g., his/her child) is an American citizen in order to obtain welfare or other non-INA benefits would not be ineligible under 6E because the alien did not attempt to assist another alien to enter the U.S. illegally, and would not be ineligible under either subsection of 6C, because the false claim was not made with respect to the alien’s own citizenship, nor was it made in connection with the alien’s own application for a passport, visa, entry into the U.S., or other benefit under the INA.
9. Minimize considered.
Madeleine Albright