What about previous immigration violations – prior removal, EWI multiples times; false claim to USC – will that disqualify someone or be part of the discretionary decision? It underscores an important point: Exercise of prosecutorial discretion is individual and case by case and depends on the facts; DHS would review the facts under a “totality of the circumstances” lens. Assuming an applicant meets the guidelines, DHS would consider the initial facts of the case through that lens.
Many of the potential DACA applicants (Deferred Action for Childhood Arrivals) that I have screened have made numerous past false claims to being a U.S. citizen. For DACA purposes these false claims may not matter. The DACA form I-821D does not ask about false claims, a DACA applicant does not have to be admissible in the first place, and DHS has given no indication that this is something they’re on the look-out for. Of course, DHS could consider it as a negative factor in their “totality of the circumstances” adjudication of discretion.
If you’ve made a false claim to USC on or after September 30, 1996, it makes you inadmissible for all forms of immigrant and non-immigrant status. There is no waiver available for this type of inadmissibility for immigrant status under current law. However, DACA is not an immigrant or non-immigrant status and therefore does not require a person to be admissible. While a past false claim could be considered as a negative factor by DHS in deciding whether or not to issue discretion in your DACA case, it does not bar you from making the request for DACA. However, it is currently impossible to say whether or not your past false claim will prevent you from applying for permanent residence through the DREAM Act in the future as the DREAM Act has not been passed by Congress, is not current law, and no one knows if it will ever be passed or what exactly it will look like if it is.
The 1986 legalization program included a waiver for many grounds of inadmissibility, and it would not make sense for Congress to pass a Dream Act that lacked a functional waiver provision.
According to a recent update from AILA, DHS is in the process of changing its policy on minors being charged with making false claims to U.S. citizenship. Details are limited at this time.
We understand that DHS has begun implementation of its new policy, which AILA believe will protect certain minors from a false claim charge, and that written guidance will be forthcoming. The Department of State has indicated that it will follow the new DHS policy. We will continue to monitor this closely and will post additional details as they become available.
A foreign national who falsely represents him– or herself as a US Ciitizen in order to obtain a benefit under Immigration Law or any other federal or state law is inadmissible. There is no waiver available.
However, as with most rules, there are exceptions. For instance, a foreign national is not inadmissible under this provision if his or her parents are USCs; the person permanently resided in the United States before the age of 16; and the person reasonably believed at the time the misrepresentation was made that he or she was a USC.
Additionally, before IIRAIRA law changes, falsely claiming U.S. citizenship did not trigger a separate ground of inadmissibility. Rather, the foreign national was simply inadmissible under the rules regarding misrepresentation, which, as noted above, were waiveable under INA §212(i). Today, false claims made before the effective date of IIRAIRA (September 26, 1996) still may be waived.
If it can be established that the false claim was not made for “any purpose or benefit under INA or any other federal or state law,” then the ground of inadmissibility may not be triggered. Similarly, a foreign national who falsely claims to be a U.S. national rather than a USC, may escape exclusion, thereby eliminating the need for a waiver. Please consult an experienced attorney if you have questions about claim matters.
The new policy may be important also to DACA applicants that are currently facing claim of U.S. Citizenship charges.
CBP encounters issue – they have said they would detain, do a complete investigation and then release; in past they’ve said they would only release with an NTA; they have said the memo does not apply to them because it was only an ICE memo. What about encounters by CBP and others, will they follow the ICE process, especially where CBP handles local detainers? The Secretary’s memo directs CBP and ICE that individuals who meet guidelines should not be arrested and removed for immigration enforcement violations.