Falsely claiming to be a United States citizen carries perhaps the most serious immigration consequence: potential lifetime banishment. Since 1996 It is treated more seriously than some of the most serious crimes under the immigration laws. The question we’re asking is whether a waiver might be available.

It is a question the statute does not explicitly answer.  And the BIA has not clearly answered this question.

But an old BIA decision issued back in 1962, Matter of K, 9 I. & N. Dec. 585, 588 (BIA 1962), provides a reason to believe a waiver might be available.

The Problem

Immigration court is hard. Once the government proves they weren’t born in the United States, it’s usually the immigrant’s burden to prove they should be allowed to stay.

One basis the government sometimes alleges for deportation is that the immigrant has previously made a false claim to US citizenship for a purpose or benefit under the law.  And immigrants who falsely claim to be citizens for any purpose or benefit under the law are inadmissible under INA 212(a)(6)(C)(ii). “Inadmissible” means they’re not allowed to enter the United States. And being inadmissible also means they cannot adjust their status to permanent residence.

The problem with the statute: The law provides the chance to ask for a waiver if an immigrant has made false statements in the past under INA 212(a)(6)(C)(iii). Of course, an immigrant has to apply for this forgiveness and the government could say no. But at least they have the chance to apply, right?  As attorneys fighting for immigrants, that’s all we’re asking for.

The problem is that while there is a generic waiver for false statements, it doesn’t explicitly say the generic waiver would cover specific types of false statements, like falsely claiming to be a citizen. And the government tends to argue that because there is no specific waiver for false claims to citizenship, the generic waiver for all false statements doesn’t cover these citizenship claims.

No legislative history or guidance: Another problem is that nobody really knows what Congress intended when it added the false claim language to the statute. In 1996 President Clinton signed a sweeping immigration reform bill that for the first time made false claims to citizenship their own ground for deportation.  But there is no legislative history or any other documentation explaining what Congress meant and, most importantly, whether Congress intended there to be no waiver.

The consequence is extreme. Someone who enters the US by telling a very serious lie, e.g. claiming they have no criminal history or lying about their identity, for example, can get a waiver. But a person who applies for a job by telling their employer they are a US citizen is banished for life from the United States with no chance to even ask for a waiver.

One Possible Solution: Matter of K

If all we had was the statute’s ambiguity, it would be hard to argue that a waiver must exist. But the BIA has already blazed the path for a waiver, and it never explicitly changed its mind.

In Matter of K, the BIA said the generic waiver for fraud or misrepresentations, then found at INA 241(f), could be used to waive specific types of fraud, including a false claim to U.S. Citizenship as was the case there. The Board noted that the immigrant there had been charged with a different ground of removability, but it said when the generic fraud waiver covers all fraud, the specific type of fraud shouldn’t matter.

As the Board explained:

Applied to the problem outlined above this rule has profound implications, because if Matter of K- remains good law, then false claims to citizenship should be waivable.

The Board’s analysis in Matter of K is fairly persuasive. It said the purpose of a waiver for fraud is to keep families together, and that a generic waiver should be “interpreted as far as possible to permit adjustment of status without requiring family separations.” Id. p. 588.

In fact the immigrant in Matter of K was found removable because he had claimed to be a US citizen, but the Board concluded that because a generic waiver was available for misrepresentations, it was available because his claim false claim to citizenship “was by fraud in that he misrepresented his true nationality.” Id.

If the specific ground of removability alleged is “immaterial,” then a generic fraud waiver should be able to waive specific kinds of fraud, like false claims to citizenship, even if they’re charged under a different or more-specific section.

This scenario often arises in cases where the immigrant is ready to adjust status based on a marriage to a U.S. citizen but, often at their very last hearing, the government reveals that an old job application or school enrollment form contained a false claim to citizenship.  In many of these cases the immigrant has lived in the United States for 10 or more years, has U.S. citizen children, works hard for a living, and has otherwise stayed out of trouble. But this little revelation in most cases means a definite loss, and lifetime banishment for the immigrant.

The BIA’s ability to interpret the law has not changed since Matter of K. So, presumably the Board still has the broad powers identified in Matter of K- to interpret the more-generic waiver provision for “fraud” to forgive a false claim to citizenship “to permit adjustment of status without requiring family separations.”

Since its decision in Matter of K-, the Board has at other times recognized the availability of a generic fraud waiver for false claims to citizenship. For example, in Matter of Lee, 13 I. & N. Dec. 214 (BIA 1967), the Board affirmed its earlier finding in Matter of K and concluded that a person who was excludable for making a false claim to citizenship could have obtained a waiver under the generic fraud provision of INA 241(f).

After the Attorney General reversed this finding, the Ninth Circuit reversed the Attorney General on appeal, concluding that the generic waiver was available for false claims to citizenship. Lee Fook Chuey v. Immigration and Naturalization Service, 439 F.2d 244 (9th Cir. 1970), citing I.N.S. v. Errico, 385 U.S. 214, 87 S.Ct. 473 (1966)(finding waiver available for false claim to citizenship and adopting rule of lenity in favor of resolving statutory ambiguity “in favor of the alien,” because “deportation is a drastic measure.”).

While the BIA has never repudiated Matter of K, it does not seem to remember it well. When we have briefed this issue to the BIA lately, they’ve generally held no waiver is available but don’t address Matter of K. 

Nor have the courts ruled on this issue.  The Eighth Circuit just issued a decision saying no waiver was available, but it, too, was silent on the Matter of K- issue (and you can be sure we briefed that issue to the court). Only a few years before the Eighth Circuit had wondered aloud if there were exceptions to the false claims statute and asked the BIA to answer that question. Those two Eighth Circuit decisions now stand in contrast with each other.

It doesn’t seem other circuits have chimed in on this yet. But there can be no doubt that a false claim to citizenship is also a misrepresentation of a material fact. And the very essence of Matter of K is that the availability of a generic waiver should not be withheld just because the government charges a person with being inadmissible for a more-particular type of misrepresentation.

What Can We Do Going Forward?

Attorneys practicing in this area must continue to seek waivers, even if the agency says none are available. If our clients are not allowed to apply for a waiver then we should appeal those issues and continue to press the BIA to explain why it had the power to invoke the generic fraud waiver in Matter of K and what has changed since Matter of K to limit its power now.