Good News: Minors (Under 18) Seeking U.S. Immigration Benefits Have New Defense to Finding of Inadmissibility Based on False Claim to U.S. Citizenship

The Department of Homeland security revises its policy in a more humane direction.

For people who entered the U.S. unlawfully when they were young, perhaps with a parent who claimed that the child was a citizen, the "false claim to U.S. citizenship" ground of inadmissibility can sometimes come as a shocking blast from the past. They may not even realize that they had, in effect, claimed to be a citizen upon entry to the U.S. -- or they may not have later realized that U.S. citizenship hadn't been theirs all along. Someone who is inadmissible is blocked from receiving a visa, green card (lawful permanent residence) or many other immigration benefits. Unlike some grounds of inadmissibility, false claims to U.S. citizenship can not be overcome by applying for a waiver.

So it's good news for would-be immigrants that the Department of Homeland Security (DHS) has recently reviewed the law in this area and come forth with a revised interpretation, set forth in a letter to Senator Harry Reid, on September 12, 2013. The exact language of the key conclusions in this letter were as follows:

1) Only a knowingly false claim can support a charge that an individual is inadmissible under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act. The individual claiming not to know that the claim to citizenship was false has the burden of establishing this affirmative defense by the appropriate standard of proof (for applicants for admission or adjustment, "clearly and beyond doubt").

(2) A separate affirmative defense is that the individual was (a) under the age of 18 at the time of the false citizenship claim; and (b) at that time lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship. The individual must establish this claim by the appropriate standard of proof (for applicants for admission or adjustment, "clearly and beyond doubt").

For the text of the letters, see this Lexis/Nexis article.

Put into plain English, this language appears to mean that:

1) Anyone, regardless of age, can argue that they are not inadmissible after all, by showing proof that they didn't know that they weren't citizens at the time they made the claim, and

2) Those who were children (under 18) at the time of making the false claim to citizenship can argue that they aren't inadmissible by demonstrating that they didn't understand and appreciate the nature of the claim they were making or the consequences of making that claim.

Applicants for visas and green cards who will need to contest this ground of inadmissibility can expect to have to provide documentation backing up their assertions, such as an affidavit from a parent swearing that the parent had always assured the child that he or she was a U.S. citizen, or never told the child otherwise.