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DHS Softens the Blow of the False Claims to Citizenship Bar

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Immigration Reform

With the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress introduced a permanent bar to visas, lawful permanent resident status, and naturalization for all noncitizens who make false claims to U.S. citizenship for the purposes of receiving immigration benefits. In the years since its enactment, the academic and legal communities have argued vehemently over the application and consequences of this new immigration bar. One of the more troubling consequences of this new ground of inadmissibility is the effect that it has on noncitizen children who have been led to believe that they are genuine U.S. citizens.  Indeed, the immigration community has recently witnessed a drastic proliferation of naturalization and visa denials stemming from the fact that 17 and 18 year old LPR’s were often registered and allowed to vote in the previous Presidential election.

Until recently, the only exception to the bar for false claims to citizenship was reserved for noncitizen children of U.S. citizens who permanently resided in the United States prior to reaching the age of 16.  Additionally, in order to be eligible for the exception, the noncitizen had to reasonably believe that they were in fact a U.S. citizen when they made the false claim to citizenship.  Unfortunately for noncitizens and practitioners alike, this exception was quite narrow, and it failed to cover noncitizen children whose parents were not citizens. Noncitizen children with only one U.S. citizen parent were also precluded from claiming the exception.  Moreover, U.S. consular and DHS officers frequently misinterpreted the “reasonably believed” standard.  Instead, many officers denied immigration benefits on the grounds that the individual “should have known” that the claim made on their behalf was false, often ignoring the age factor entirely.  In effect, the law has been applied to deny lawful permanent residence and other immigration benefits to noncitizen children whose parents asserted a fraudulent claim to U.S. citizenship on their behalf.

Fortunately, the previously mentioned inequities, and indeed injustice, of the earlier interpretations have now been partially alleviated by new DHS agency guidelines. Under the recently clarified DHS agency guidance, only a “knowingly” false claim can support a finding of inadmissibility.  This new exception allows all noncitizens a chance to rebut the evidence against them.  Additionally, the guidance also provides for a separate, affirmative defense to the false claim to citizenship bar.  This new exception pertains to minor noncitizens and creates a more relaxed standard for overcoming a claim to false citizenship.  It states that at the time the false claim is made, if the noncitizen child can show that they “lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship,” then they are still eligible to apply for and receive immigration benefits.  However, the noncitizen still bears the burden of proof and must show “clearly and beyond doubt” that he or she did not know the claim was false at the time that it was made.

While this interpretation is now considered official government policy, DHS has yet to amend its Field Adjudicator’s Manual.  Additionally, the Department of State has failed to include this new rule of interpretation in its Foreign Affairs Manual.  The slow rate of change is extremely significant given that these two manuals are used extensively by agency officials to interpret specific statutory provisions. However, both agencies have reassured the Senate that they plan to do so and have, in the interim, provided various guidance memorandums to field officers. As a welcomed additional step, both agencies have begun coordinating their efforts to harmonize the new rule and to apply the rule retroactively.

Hopefully, both agencies will continue to coordinate their efforts quickly and consistently so that noncitizens who have been barred from seeking immigration benefits in the past may now seek redress under this more logical and consistent standard.  While this new policy shift is certainly welcome, it is important to note that the new “clearly and beyond doubt” standard may still leave considerable room for overly narrow and arbitrary interpretations by individual officers. For this reason, a thorough and careful review of noncitizen’s complete immigration history remains the best strategy for adjudicating false claims to citizenship cases.

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