By Robert L. Reeves and Nancy E. Miller
As everyone who has applied for a job in the United States knows, you have to show that you have the right to work before you can be hired. As every non-citizen should know, falsely claiming to be a United States citizen is the kiss of death to living legally in the U.S. Under the Immigration & Nationality Act, any alien who falsely represents, or has falsely represented himself or herself to be a citizen of the United States for any purpose or benefit under the Act is both inadmissible and deportable.
There is no waiver for this misrepresentation if it was made on or after September 30, 1996. There is one limited exception, however. If each natural or adoptive parent of the alien is or was a citizen of the United States (either by birth or naturalization) and the alien permanently resided in the United States prior to attaining the age of 16 and the alien reasonably believed at the time of making such representation that he or she was a citizen, he or she is neither inadmissible or deportable for that misrepresentation.
Despite the draconian ramification, many people falsely state that they are U.S. citizens in order to get a job. The motivation is understandable. The immigrant needs a job in order to support himself and his family. If you state that you are a lawful permanent resident or have a non-immigrant work visa, you have to show the green card or visa. If you say you are a United States citizen, you are generally not asked for a birth certificate or naturalization certificate. The ease with which the misrepresentation can be made may be one of the reasons the punishment is so harsh.
Nonetheless, desperate people take desperate actions. More than one person has checked off the “I attest, under penalty of perjury, that I am … [a] citizen or national of the United States” on the I-9 Employment Eligibility Verification Form in order to get a job.
What are the implications of checking off that box? Is the alien saying that he is a citizen or a national? And what is the difference? All citizens of the United States are nationals, but some nationals, such as persons born in U.S. territorial possessions (e.g. American Samoa) are not citizens. Nationals owe permanent allegiance to the United States but are not citizens. The responsibilities and benefits of a national are less than those of a citizen.
The ramifications of checking that box on the I-9 were discussed in a case from the Ninth Circuit Court of Appeals, United States of America v. Karouni. In that case, Karouni was charged with violating a section of law that makes it a crime to falsely claim to be a U.S. citizen (yes, making that claim can not only get you deported, it can get you sent to jail). The court held that the box on the form was ambiguous and that the criminal statute did not make it a crime to falsely claim to be a U.S. national.
That is not the end of the story, however.
In a 2007 case, Kechtar v. Gonzales, the Tenth Circuit upheld a decision from the Board of Immigration Appeals which had held that where the alien checked off the box on the I-9 that stated he was a “citizen or national”, he falsely claimed citizenship and that doing so for private employment is not a defense because it is done for the purpose of evading the employer sanctions statute. Therefore, the noncitizen was removable from the United States as a result of checking that box.
In a more recent case, Matter of Guadarrama, the Board of Immigration Appeals distinguished the holding in Karaouni by finding that the standard for being held to have violated a criminal statute is higher than that required for being held to have violated an immigration statute. Therefore, while an immigrant might not be sent to jail for having checked off that box on the I-9, the same action can get him deported from the United States for having made a false claim to citizenship. The Board said that the matter turned upon the alien’s intent at the time he made the claim. Did he intend to say he was a citizen or national? If he meant to say he was a citizen, he is automatically barred with no waivers possible.
That does not mean that falsely claiming to be a U.S. nation makes you home free. There are other statutes that make it a crime to make any false statement in a proceeding before a government agency. And, of course, any misrepresentation for an immigration benefit can render you inadmissible and removable and in need of a waiver. Even where waivers are available, they are by no means guaranteed. It should also be noted that denying the prior misrepresentation only compounds the problem.
Anyone who has made a false statement for any immigration purpose should consult a competent and ethical immigration lawyer prior to applying for any immigration benefit.