FALSE CLAIM TO U.S. NATIONALITY IS NOT THE SAME AS FALSE CLAIM TO U.S. CITIZENSHIP

By Attorneys 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. But every non-citizen should know, with very limited exception, 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.

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 one states that they are a lawful permanent resident or have a non-immigrant work visa, they 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.

Sometimes, desperate people trying to support their families 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. In Matter of X, a recent unpublished decision, the Board of Immigration Appeals dismissed a government appeal upon finding that X (who did check off that box) did not make a claim of U.S. citizenship but instead claimed to be a national which claim did not render her inadmissible.

Unpublished decisions are considered nonprecedent. That means they are not treated as binding law. However, they can be used as persuasion. In California and the other states within the jurisdiction of the Ninth Circuit Court of Appeals, there is even more reason to refer to the unpublished decision. It follows the reasoning and holding of the Ninth Circuit case of 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 result in deportation, it can also result in a prison sentence). The court held that the statute did not make it a crime to falsely claim to be a U.S. national. It stated that “[a] plain reading of the statute shows beyond any question that the provision covers only false claims of U.S. citizenship and not false claims of U.S. nationality”.

So, what’s 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.

That does not mean that falsely claiming to be a U.S. national 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. They require a qualifying relative who would suffer extreme hardship if the immigrant were forced to leave the U.S. What is a qualifying relative? What is extreme hardship? More on that next week.

All non-citizens appearing at interviews for immigration benefits should be aware that many examiners are taking an aggressive approach and asking the alien what he told the employer in support of his claim of eligibility to accept employment. These officers are seeking to permanently disqualify the non-citizen from ever residing in the U.S. Because of the seriousness of this issue, if you have ever filled out an I-9, you must consult a competent immigration attorney or risk being permanently barred from the U.S.