In two separate letters to Senator Harry Reid of Nevada, the Departments of State (DOS) and Homeland Security (DHS) indicated that both federal agencies are adopting a new policy regarding minors who make false claims to citizenship. The letters, dated August 29, 2013 and September 12, 2013, state that the agencies have conducted a review of the false claim to citizenship ground of inadmissibility and have concluded that there are circumstances in which this ground of inadmissibility should not be applied to individuals who are under the age of 18.
The false claim to citizenship ground of inadmissibility, INA § 212(a)(6)(C)(ii), applies to any foreign national who, on or after September 30, 1996, falsely represents himself or herself to be a citizen of the United States for any purpose or benefit under the INA or any other federal or state law. The issue of how this ground should be applied to minors has long been a contentious one. The State Department issued guidance on this issue in April 2013 indicating that this ground of inadmissibility would not be applied in certain circumstances to claims made when the non-citizen was under the age of 18. However, this guidance was quickly retracted.
In this latest guidance, DHS and DOS clarify that in order for a false claim to trigger this ground of inadmissibility, it must be made knowingly. In addition, the agencies set an affirmative defense to this ground where: 1) the individual was under the age of 18 when the false claim was made, and 2) at that time he or she lacked the capacity to understand the nature and consequences of the false claim. The burden is on the non-citizen to establish these elements clearly and beyond doubt.
Both agencies indicate in their letters that this guidance has been provided to the field and that the Adjudicator's Field Manual (AFM) and the Foreign Affairs Manual (FAM) will be updated to reflect these changes. The letters further state that the agencies are discussing procedures for individuals who were previously found inadmissible due to a false claim to citizenship made as a minor. We will update you as developments continue.