Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Citizens, Nationals, or Not?

Recent decisions by the 8th Circuit Court of Appeals have heightened the risk that aspiring immigrants charged with falsely claiming U.S. citizenship may be found inadmissible and precluded from adjusting their immigration status. Even those who innocently (but falsely) claimed U. S. citizenship or nationality are at risk and no waiver is available to those found inadmissible under the statute.

Of all the grounds for denial of admission under the Immigration and Nationality Act (“INA”), the “false claim to United States citizenship” (“false USC claim”) provision is among the most devastating to aspiring immigrants.1 Not only is there no waiver of inadmissibility available to persons found inadmissible under the statute, but it potentially applies to the tens of thousands of persons who, simply marking Box 1 (U.S. citizen or national) on an I-9 Employment Eligibility Verification Form, have misrepresented their immigration/citizenship status to gain employment. Practitioners in Minnesota and elsewhere within the jurisdiction of the 8th Circuit Court of Appeals need to be particularly aware of this issue, given the court’s recent decisions restricting potential defenses that had previously been successful in defending against false USC allegations.2

Misrepresentation, Willful or Not

Until enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) on September 30, 1996, only material and willful misrepresentations (including false USC claims) made to a U.S. immigration or consular officer in connection with an application for a visa, admission to the United States, or related immigration benefit rendered foreign nationals inadmissible to the United States under the former INA §212(a)(6)(C).3 In these circumstances, immigration-related misrepresentations made to private entities such as employers, banks, or airlines generally did not result in inadmissibility under the statute.  Further, the process of obtaining a discretionary waiver of inadmissibility for misrepresentation was relatively easy under the former version of INA §212(i), as persons with a U.S. citizen (USC) or permanent resident (LPR) spouse, parent, or child could qualify for a waiver based on extreme hardship to said relative and, pursuant to the administrative case law, the act of “fraud” that required the waiver to be filed could not be considered as an adverse discretionary factor.4  The enactment of IIRIRA and subsequent legal developments changed these provisions in various draconian ways.  Not only was the INA §212(i) waiver provision amended so that USC or LPR children no longer qualified as “anchor” relatives for waiver purposes, but the penalty for a misrepresentation became a lifetime bar.  Further, the lenient administrative waiver holdings in §212(i) waiver cases were overturned by the Supreme Court so that the misrepresentation itself could indeed be considered to be a serious adverse factor in determining eligibility for a discretionary waiver.5

Of all the changes, however, the one of potentially greatest significance was the addition of a new ground of inadmissibility to INA §212(a)(6)(C), which specifically states:

Falsely claiming citizenship
In General

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 this chapter (including section 1424a of this title) or any other Federal or State law is inadmissible.


In the case of an alien making a misrepresentation described in subclause (I), if each natural parent of the alien (or, in the case of an adopted alien, each adopted parent of the alien) is or was a citizen (whether by birth or naturalization), 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, the alien shall not be considered to be inadmissible under any provision of this subsection based on such representation.6

This provision applies to all false USC claims made on or after September 30, 1996 and, of even greater significance, does not allow for any discretionary waiver. This is indeed ironic since many aspiring immigrants who have been convicted of serious crimes involving moral turpitude such as theft, fraud, and sexual assault may apply for a waiver of inadmissibility, whereas persons who simply checked the “citizen or national” box on Form I-9 to obtain employment may be removable and/or permanently inadmissible to the United States. While the issue is particularly serious within the 8th Circuit’s jurisdiction, it is applicable in all U.S. jurisdictions (including cases at all U.S. consulates worldwide).

Evaluating the Issue

The first step in evaluating the potential impact of this issue on any case is to determine whether any potential false USC claim has been made.  As noted above, the false USC claim provision applies only to claims made after the effective date of September 30, 1996.7 Further, most immigration judges, Department of Homeland Security (DHS) trial attorneys and adjudicators, and Department of State consular officers agree that the false USC claim must have been willful, although the statute does not specifically state that intent or materiality are required.  This is relevant because there are many instances where a person may have innocently, yet falsely, claimed U.S. citizenship, including adopted children and others who mistakenly believed they were U.S. citizens, as well as persons who presented a Permanent Resident Card (whether genuine or fake) or a related document to an employer when completing Form I-9, but mistakenly checked the U.S. citizen/national box on the form.  Another common scenario is where a foreign national entered the United States as a child by falsely (intentionally) claiming to be a U.S. citizen; in most such cases, minors are not considered capable of having the required capacity to make a willful misrepresentation, particularly if they were under age 16 at the time.  However, practitioners must be aware that the U.S. Consulate in Ciudad Juarez, Mexico (which processes more immigrant visa cases than any other consulate) has recently changed its opinion on this issue and now believes that the false-USC-claim provision is a strict liability statute that also applies to minors.

Further, it is important to determine whether the false claim was made “for any purpose or benefit” under the INA, or under any other federal or state law. Since the wording of this part of the statute is extremely broad, it may be applied to a vast array of scenarios. While the 8th Circuit’s decision in Ateka v. Ashcroft8 specifically left unanswered the question of whether completion of a Form I-9 in the employment context is for a “purpose or benefit,” that issue was settled by the court’s 2008 ruling in Rodriguez v. Mukasey,9 which agreed with the government’s position.  However, there potentially are contexts, particularly where the foreign national has not affirmatively applied for any government benefit, where it may be argued that the false USC claim was not made under the INA or some other federal or state law.10

USC Claims & Form I-9

The false USC claim issue has most commonly arisen where the foreign national misrepresented his status on Form I-9 to gain employment by checking Box 1, thereby attesting under penalty of perjury that he is “A citizen or national of the United States” (emphasis added). This is a common occurrence because employers are generally prohibited from requesting further documentation from the prospective employee once documentation of his identity and right to accept employment (most typically a state-issued driver’s license and social security card) have been presented.

The most common defense to cases arising under this scenario has focused on the ambiguous nature of the Form I-9 attestation and whether the person has in fact falsely claimed to be a U.S. citizen, a U.S. national, or something else.  In that regard, it is critical to note that INA §212(a)(6)(C)(ii) punishes only false USC claims, not false claims to U.S. nationality.11 As such, attorneys have argued that since it is unclear whether the person was claiming to be a U.S. citizen or U.S. national, a false USC claim has not been made absent clear evidence to the contrary.  Related arguments to refute false USC allegations include the fact that the terms “citizen” and “national” are commonly used interchangeably by U.S. immigration officials and attorneys, and are accordingly ambiguous and/or vague;12 that in the vast majority of cases, where only a driver’s license and social security card were presented in support of Form I-9 (as opposed to a U.S. passport or birth certificate), it is impossible to determine what status the person was claiming; and that due to the draconian impact of the false USC statute, any ambiguity should be resolved in favor of the alien (commonly referred to as the “rule of lenity”).13

Indeed, up until the recent series of 8th Circuit decisions, various legal authority from the United States Citizenship and Immigration Services (USCIS),14 the Board of Immigration Appeals,15 and the courts16 clearly recognized the “citizen/national” ambiguity as a valid defense in many cases involving alleged false USC claims on I-9 forms.  Further, the 8th Circuit’s Ateka decision specifically recognized the citizen/national distinction and held that, due to the ambiguous nature of the form, for an alien to be inadmissible there must have been independent corroborating evidence showing that he intended to claim U.S. citizenship.  In Ateka, the foreign national had testified to an immigration officer during his adjustment-of-status interview that he had falsely claimed to be a U.S. citizen when completing various I-9 forms to gain employment.  His application for adjustment of status was thus denied due to the false USC claim and he was placed in removal proceedings, where he renewed the application before the immigration court.  Although he argued that his actions (merely checking the ambiguous Box 1 on Form I-9) did not constitute a false USC claim, the immigration judge, Board of Immigration Appeals, and Court of Appeals each ruled that his prior testimony to the immigration officer stating that he had claimed to be a U.S. citizen to gain employment provided independent corroboration of his intent.

Uncertain Defenses

Prior to the 8th Circuit’s recent RodriguezKirong, and Hashmi decisions17 addressing entries made on the I-9 form, the most common method of defending against a false USC allegation arising from this context was the alien’s simple explanation, “When I checked the citizen/national box on the I-9 form, I was not trying to claim that I was either a U.S. citizen or national; I really did not give it any thought and simply wanted to work.” The recent 8th Circuit decisions(including other courts’ recent rulings in similar cases) now make such a defense much more difficult by focusing, in particular, on the specific burdens of proof in immigration proceedings. While the decisions continue to support the well-established rule that the government bears the burden of proving the alien’s removability by clear and convincing evidence, they simultaneously place the burden of proof squarely on the alien to establish admissibility, which places many adjustment-of-status applicants in the difficult (if not impossible) position of having to prove convincingly that they intended to falsely claim U.S. nationality rather than U.S. citizenship.

Kirong, for example, in response to questions concerning his intent in checking the Form I-9 U.S. citizen/national box, testified that he did not intend to claim that he was either a U.S. citizen or a national, as he was simply seeking employment (he further testified he did not know what a national was and thought a citizen was a person born in the United States.).  The court held that given his burden of proving “clearly and beyond doubt” that he was eligible for adjustment of status by not having made a false USC claim, he was unable to meet this burden based on his testimony. Similarly, Hashmitestified that when he completed the Form I-9 he thought he was a U.S. national because he believed that the term referred to any person legally in the United States.  In ruling that he did not meet his burden of proof, the court specifically stated “… in any given case, the significance of the form may depend on the credibility of the alien’s testimony concerning his intent in checking the box.”18 In concluding that there was substantial evidence to support the immigration judge’s negative credibility ruling, the court specifically referenced the alien’s testimony that he knew that someone born in the United States is a U.S. citizen; that he falsely told his employer that he was born in Washington state; and that he checked a box asserting he was a U.S. citizen when completing a new hire form with his employer.19

Potentially Viable Alternatives

Despite the problematic holdings in the recent 8th Circuit decisions, there remain potentially viable defenses to alleged false USC claims that meet the specific burden-of-proof requirements.  Of special note—particularly for those clients whose native language is Spanish, who had limited education and/or English language skills at the time they made the alleged false USC claim, and who possessed or utilized a fraudulent U.S. birth certificate—is an important linguistic argument that focuses specifically on the root of the term “national” and common misconceptions about the term’s definition.  The author has consistently observed that the vast majority of persons in the above category, when asked to define what they intended to claim by falsely representing themselves as persons born in the United States, state that they thought they were falsely claiming to be U.S. nationals since the Spanish noun “nacional” (national) is derived from the same root as the verb “nacer” (to be born).  By stressing this point (and that, conversely, a person may be a U.S. citizen by virtue of birth in the United States, naturalization, birth abroad to parents who are U.S. citizens, etc.) it may be possible to credibly demonstrate that the person intended to claim U.S. nationality rather than U.S. citizenship.20

Further, while a false USC claim may create permanent ineligibility for adjustment of status, it does not necessarily impact eligibility for other forms of discretionary relief such as asylum or cancellation of removal. In fact, it may be possible to utilize the permanent inadmissibility that results from the false USC ground to help build a stronger “hardship” argument in cancellation-of-removal cases and, in certain situations, it may even be worthwhile for the practitioner to proactively bring the false USC issue to the attention of the immigration judge and/or DHS trial attorney to bolster credibility, including the argument that the client is permanently barred from immigrating through a family or employment petition because of the false-USC-claim problem.

Given the severe impact of a false USC claim, clients who would otherwise be eligible to adjust status within the United States should strongly consider applying for an immigrant visa through a U.S. consulate abroad if there is a significant likelihood that they will face a false USC claim with DHS and/or the immigration court.  This is particularly relevant for cases involving clients from Mexico, where the waiver approval rate is high (and where waivers can typically be processed more quickly than in most other countries) and where officers at the U.S. Consulate in Ciudad Juarez (which processes all immigrant visas for the country) are less likely to closely question applicants about false USC issues arising merely within the I-9 context.


In conclusion, the recent trend of federal cases in the “false USC claim” context is indeed disturbing and raises new challenges for attorneys trying to help clients successfully navigate the complicated immigration system.  However, with careful analysis and preparation, defenses and alternative strategies continue to exist that may still help many clients achieve their U.S. immigration objectives.

1 INA §212(a)(9)(C)(II); 8 U.S.C. §1182(a)(9)(C)(II)
Rodriguez v. Mukasey, 519 F.3d 773 (8th Cir. 2008); Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008); Hashmi v. Mukasey, 533 F.3d 700 (8th Cir. 2008).
Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994); Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991).
Matter of Da Silva, 17 I&N Dec. 288 (Comm. 1979); Matter of Alonzo, 17 I&N Dec. 292 (Comm. 1979).
5 INS v. Yang, 519 U.S. 26, 117 S.Ct. 350 (1996).
6 INA §212(a)(6)(C)(ii); 8 §1182(a)(6)(C)(ii)
7 IIRIRA §344(c).
8 384 F.3d 954 (8th Cir. 2004).
Rodriguez v. Mukaseysupra n. 2.
10 For example, the author represented an individual who was accused of making a false USC claim after he circled “U.S. citizen” on a jail intake questionnaire that he was required to complete when beginning a short workhouse sentence.  He testified that he circled U.S. citizen because he thought the questionnaire was asking whether he was authorized to work in the U.S. (which he was) and because there was no other clear choice on the form that addressed his specific circumstances.
11 The term national is defined as “A person who, though not a citizen of the United States, owes permanent allegiance to the United States.”  8 U.S.C. §1101(a)(22); INA §101(a)(22).
12 “Nationals are further divided into those who are ‘citizens’ and those who are not.  Today almost all national are citizens; the few who are not are almost entirely natives of American Samoa and Swains Island. … the terms ‘national’ and ‘citizen’ are often used interchangeably.” Lagomsky, Stephen H., Immigration and Refugee Law and Policy, 3rd edition. University Casebook Series. (New York: Foundation Press, 2002), p. 4.
13 INS v. St. Cyr, 121 S.Ct. 2271, 2290 (2001); Fong Haw Tan v. Phelan, 333 U.S. 6 (1948).
14 The INS (now USCIS) Texas Service Center, in its April 2001 written response to liaison questions posed by the American Immigration Lawyers Association (AILA), specifically stated: “The TSC recognizes the distinction between ‘citizen and national’ of the United States.  The TSC will continue to favorably adjudicate otherwise approvable 485 applications where the alien has checked the referenced ‘citizen or national’ block of the I-9 unless there is other specific evidence of a false claim to US citizenship.”
15 While the Bureau of Immigration Appeals (BIA) has yet to issue a definitive precedent ruling on the issue, it has in several past nonprecedent decisions (which preceded the recent trilogy of 8th Circuit decisions) placed the burden on the government to prove that the applicant had clearly made a false USC claim.  See, e.g.Matter of A75-904-456 (BIA March 15, 2005).
16 U.S. v. Karaouni, 379 F.3d 1139 (9th Cir. 2004).  It should be noted, however, that this case involved a criminal prosecution where the government clearly had the burden of proof.
17 supra n. 2.
18 Hashmi, 533 F.3d. at 704.
19 Rodriguez involved an equally complicated fact pattern where the alien had purchased a fraudulent U.S. birth certificate and executed a sworn statement with USCIS that he had falsely claimed to be a USC.
20 While there are few BIA decisions that directly address this issue, the BIA has agreed with the “nacional/ nacer” linguistic defense in various nonprecedent decisions.  See, e.g., Matter of A79-051-500(BIA April 27, 2007).

MICHAEL H. DAVIS is a partner in the Minneapolis law firm of Davis & Goldfarb, PLLC, practicing exclusively in the area of immigration law.  He is a past chair of the Minnesota State Bar Association Immigration Law Section and the Minnesota-Dakotas Chapter of the American Immigration Lawyers Association.

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