False Claim to U.S. Citizenship Defenses for Minors Facing Inadmissibility

Department of Homeland Security policy offers humane opportunity to defend against allegations or being inadmissible due to having falsely claimed to be a U.S. citizen.

For people who entered the U.S. unlawfully when they were young, perhaps with a parent who claimed that they were U.S. citizens, discovering that a "false claim to U.S. citizenship" ground of inadmissibility blocks their efforts to return to or stay in the U.S. can come as a shock.

Someone who is inadmissible is ineligible to receive a visa, green card (lawful permanent residence), or many other immigration benefits.

Worse yet, unlike some grounds of inadmissibility, false claims to U.S. citizenship cannot be overcome by applying for a waiver.

Fortunately, this ground of inadmissibility can be overcome in certain situations. Also note that this ground of inadmissibility arose in 1996, so doesn't apply to people who made false citizenship claims before that date; though such people can still be found inadmissible based on fraud.

Why Might Non-Citizens Have Claimed to Be U.S. Citizens While Young?

This is one of those complex areas of immigration law that trip people up who perhaps didn't even know they did anything wrong—in fact, who might have been too young to understand what was going on.

Let's imagine, for instance, that a child was in the back seat of a car when his U.S. citizen uncle drove from Mexico to U.S. border post. The uncle presented his own U.S. passport and claimed that the child was also a U.S. citizen. That child would thus have, in effect, claimed to be a citizen upon entry to the United States.

Another common situation is one where a child entered the U.S. unlawfully with family, but doesn't remember doing that—and was in fact always told that she was a U.S. citizen, and therefore claimed as much to employers, government agencies, and so on. This person, also, could be found inadmissible for having falsely claimed citizenship.

When U.S. Policy Doesn't Hold False Claims of Citizenship Against an Applicant

In light of the trouble caused for would-be immigrants by situations such as the above, the U.S. Department of Homeland Security (DHS) issued a 2013 reinterpretation of the law, within the USCIS Policy Manual.

It found that, for false claims to citizenship, the person will be found inadmissible only if he or she made the false representation knowingly and for some purpose or benefit under immigration law or other federal or state law.

In addition, the recent policy says that someone can only "knowingly" claim citizenship if he or she was capable of understanding the nature and consequences of the false claim at the time it was made, and that the person's age, level of education, background, mental capacity, level of understanding, ability to appreciate the difference between true and false, and other relevant circumstances should all be taken into account.

The policy then separately addresses false claims to U.S. citizenship made while someone was under age 18. By itself, it says, being a minor doesn't establish a lack of capacity to make a knowing claim to citizenship. But the applicant has an opportunity to prove that in his or her case, that the claim "clearly and beyond doubt" wasn't a knowing one.

Proving That You Aren't Inadmissible Due to a False Claim to U.S. Citizenship

If you need to apply for a U.S. visa or green card, and are facing an allegation that you are inadmissible based on a false claim to U.S. citizenship, it will be your burden to show that you are not inadmissible. That means you can't simply say, "But I didn't know what was happening!" and wait for the U.S. government to prove otherwise.

Prepare to submit documentation backing up your assertions, such as an affidavit from a parent swearing that he or she had always assured you that you were a U.S. citizen or never told you otherwise.

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