False Claim to Citizenship – Possible Defenses to Charges and Potential Relief
People who falsely and willfully represent themselves to be United States Citizens may be fined and imprisoned for up to 3 years. The misrepresentation has to be willful in addition to being false. Willfulness has been determined by the U.S. 9th Circuit in Chow Bing Kew v. United States, 248 F. 2d 466 (9th Cir. 1957) held that willfully means only that the misrepresentation was made voluntarily and deliberately. Therefore, the prosecution does not need to show that the false claim to citizenship was made for a fraudulent purpose.
Surprisingly the statute can be used to punish misrepresentations of citizenship in many contexts, including bot not limited to the following examples;
- statements made to unions
- mortgage or loan applications
- voting, in applying for passports,
- in applying for college and student loans,
- in applying for a drivers license
- and in response to questions asked by law enforcement. There are other situations not listed here. In some cases, a false claim to citizenship may come with additional perjury charges.
A false claim to U.S. citizenship is also a ground for Removability/Deportability and Inadmissibility. A finding of false claim to citizenship has been called the “death penalty of immigration” and one should consult an attorney immediately to see if they have a defense to the charge. There are no waivers for inadmissibility once one has been found to made a false claim to U.S. citizenship unless statement was made on or before September 30, 1996 and on ecan show extreme hardship to a U.S. citizen or LPR parent or spouse. There may possibly be some relief from deportability for certain situations.
Some possible arguments to defend the charge are listed below.
- waiver of inadmissibility may be available for false claims made prior to September 30th, 1996 and meets other stringent requirements
- the false claim to citizenship was not “knowingly” made or made in good faith. (belief as to U.S. citizenship must be reasonable)
- Claim was not made for “purpose or benefit”.
- Claim was made by someone else
- Timely retraction (fact sensitive as to voluntariness and timeliness of the retraction) – same interview/interaction for example. (However this defense may run into the issue of the lack of good moral character which is a “catch-all” factor under 101 (f). )
Forms of Relief that are not barred by a finding of false claim to citizenship.
- Withholding of removal under 241 1(b)(3)
- Protection under Convention Against Torture
Below are examples of discretionary relief and Judge will consider past false claim to citizenship when making a decision.
- T and U visas
- Cancellation of Removal for Green Card holders (Lawful Permanent Residents)
Below are examples of relief that MAY NOT be available in a False Claim to Citizenship case. Many of these situations have major obstacles such as requiring proof of Good Moral Character but it may still be possible in limited circumstances.
- VAWA (Violence Against Women Act) Self petitions
- VAWA Cancellation of Removals
- Cancellation of removal for non-legal permanent residents
- Voluntary Departure at Conclusion of Removal Proceedings