As immigration practitioners, we always screen our clients for false claims to U.S. citizenship because they can trigger both inadmissibility and deportability consequences. What if your client says she mistakenly claimed to be a U.S. citizen because she believed it was true when she said it? Or reports that, at age 15, she falsely claimed to be a U.S. citizen when seeking admission at the border because that is what an adult family member told her to say? Until recently, you probably would have advised both clients that they could argue that their conduct did not trigger inadmissibility. You would have relied on USCIS Policy Manual guidance stating that a false claim had to be made knowingly to trigger inadmissibility.

Based on updates to the USCIS Policy Manual issued on April 24, 2020, however, you can no longer look to USCIS guidance to support the argument that unintentional false claims do not trigger inadmissibility. Under the revised USCIS guidance, false claims to citizenship can trigger inadmissibility even if made without knowledge that the claim is false. In addition, the guidance removes any reference to an affirmative defense for false claims made by minors under age 18 who lacked the mental capacity to understand the nature and consequences of their actions.

USCIS took this action in the wake of a 2019 BIA decision addressing false claims to citizenship in the context of deportability under Immigration and Nationality Act (INA) § 237(a)(3)(D). In Matter of Zhang, 27 I&N Dec. 569 (BIA 2019), the respondent was an individual who was charged with making a false claim to citizenship after he purchased a certificate of citizenship and used it to obtain a U.S. passport. In immigration court, the respondent argued that he was not deportable as charged because he acted in good faith, believing himself to be a U.S. citizen. In the subsequent appeal from the immigration judge’s finding of deportability, the Board affirmed the immigration judge’s ruling and held that the plain language of INA § 237(a)(3)(D) does not require an intent to falsely represent citizenship status. In addition, the Board noted that when Congress wants to include a knowledge component in the statute, it will expressly do so, pointing to the statutory requirement of “willful misrepresentation” required to trigger inadmissibility under INA § 212(a)(6)(C)(i).

In announcing the revised Policy Manual text, USCIS stated that it was removing the intent component in its guidance on false claims to citizenship in order to align USCIS policy with the Matter of Zhang decision. Although the Zhang decision addressed deportability for making a false claim to citizenship, the language of false claim inadmissibility at INA § 212(a)(6)(C)(ii) is identical to the deportability ground text at INA § 237(a)(3)(D). As a result of the Policy Manual change, the revised guidance now states that the only three elements required to establish inadmissibility for false claim to citizenship are that the:

• Noncitizen made a representation of U.S. citizenship;
• Representation was false; and
• Noncitizen made the false representation for any purpose or benefit under the INA or any other federal or state law.

Prior references in this Policy Manual section to the factor of knowledge of making a false claim have been removed, including text relating to the ability of minors to overcome inadmissibility based on a showing of lack of capacity.

Note that the Foreign Affairs Manual (FAM) guidance on inadmissibility for false claims to citizenship has not been altered in response to the Zhang decision. See 9 FAM 302.9-5. Consequently, the FAM still states that only a knowing false claim can support a charge of inadmissibility under INA § 212(a)(6)(C)(ii), and that minors may raise an affirmative defense to inadmissibility on this ground due to lack of capacity. It is likely we will see the Department of State modify the FAM text on false claims to citizenship to remove reference to the affirmative defense for minors.

The new USCIS Policy Manual guidance represents a major departure from the prior policy on this issue, particularly for individuals who made a false claim to citizenship while under age 18. CLINIC affiliates are encouraged to utilize Ask the Experts for technical assistance on cases involving unintentional false claims and false claims made by minors.