A recent Board of Immigration Appeals (BIA) decision addressed the actions of a foreign national who simply claimed on a passport application that she had been born in Texas. In this decision, the BIA emphasized the fact that the Immigration and Nationality Act (the Act) strictly forbids anyone who is not a United States citizen from claiming, in any way, that he or she is a citizen. This BIA decision serves as a strong reminder to anyone not a United States citizen that they should be very cautious not to claim, in any way, that they were born in the United States. Be aware that signing any document that says you are a citizen is the same as saying out loud that you are a citizen. Always remain mindful that, not only is making a false representation of citizenship strictly prohibited by the Act, if you do falsely claim United States citizenship, you will be permanently barred from the United States. There are no waivers to this bar.
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Matter of Olga BARCENAS-BARRERA, Respondent File A093 086 418 – Houston, Texas Decided June 19, 2009 U.S. Department of JusticeExecutive Office for Immigration ReviewBoard of Immigration Appeals (1) An alien who willfully and knowingly makes a false representation of birth inthe United States on a passport application is inadmissible under section 212(a)(6)(C)(ii)of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii) (2006), for makinga false representation of United States citizenship. (2) The respondent, who was convicted of violating 18 U.S.C. § 1542 (2006) forfalsely representing that she was born in the United States on an application for apassport, is removable under section 237(a)(1)(A) of the Act, 8 U.S.C. § 1227(a)(1)(A)(2006), as an alien who was inadmissible at the time of her adjustment of status undersection 212(a)(6)(C)(ii) of the Act. FOR RESPONDENT: Charissee L. Garza, Esquire, Bellaire, Texas FOR THE DEPARTMENT OF HOMELAND SECURITY: Marilee Fong, Assistant Chief Counsel BEFORE: Board Panel: GRANT, MILLER, and MALPHRUS, Board Members. MALPHRUS, Board Member: In a decision dated March 29, 2007, an Immigration Judge found thatthe respondent is not removable under section 237(a)(1)(A) of theImmigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as analien who was inadmissible at the time of her adjustment of status undersection 212(a)(6)(C)(ii) of the Act, 8 U.S.C. § 1182(a)(6)(C)(ii) (2006),because she had not falsely represented herself to be a United States citizen.1 The Immigration Judge did, however, find that the respondent was inadmissible at the time of her adjustment of status under section 212(a)(6)(C)(i) of the Act, as an alien who sought to procure a United States passport by fraud or willful misrepresentation of a material fact. He also granted her request for a waiver of inadmissibility under section 237(a)(1)(H) of the Act, which is available to waive the grounds of inadmissibility under section 212(a)(6)(C)(i), but not under section 212(a)(6)(C)(ii). The Department of Homeland Security (“DHS”) has appealed from theImmigration Judge’s determination that the respondent was not inadmissibleunder that section. The appeal will be sustained. I. FACTUAL AND PROCEDURAL HISTORY The respondent is a native and citizen of Mexico. In March 2003, she applied at a United States Post Office for a United States passport,2 which she intended to give her employer as proof that she had authorization towork. She had previously provided her employer a false social securitycard and birth certificate, which the employer had rejected as invalid. The passport application, which she signed under oath, states that she was born in“Edinburg, TX.” The respondent’s status was adjusted to that of a lawfulpermanent resident in September 2004, based on her marriage to a naturalizedUnited States citizen. In March 2006, the respondent was convicted of making a false statementon an application for a passport in violation of 18 U.S.C. § 1542, for which shewas sentenced to 3 years’ probation.3 Count one of the indictment to which the respondent pled guilty states that on or about March 12, 2003, she: willfully and knowingly made a false statement in an application for a passport withintent to induce and secure for her own use the issuance of a passport under theauthority of the United States, contrary to the laws regulating the issuance of suchpassports and the rules prescribed pursuant to such laws, in that in such applicationthe defendant stated that her place of birth was “Edinburg, TX,” which statement sheknew to be false. The record contains a copy of page 3 of the respondent’s passportapplication, which lists her place of birth as “Edinburg, TX.” Immediatelyabove the respondent’s signature, the application includes a warning that it 2 The Secretary of State has the authority to issue passports, which has been delegated to selected agents, including duly designated postal employees, who have the authority to accept passport applications and administer oaths in connection with such applications. See United States v. Salinas, 373 F.3d 161, 162 (1st Cir. 2004). 3 According to 18 U.S.C. § 1542 (2006): Whoever willfully and knowingly makes any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another, contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws . . . Shall be fined under this title, imprisoned . . . , or both. should not be signed until requested to do so by the person administering theoath, as well as the following affirmation: I have not, since acquiring United States citizenship, performed any of the acts listed under “Acts or Conditions” on the reverse of this application form (unless explanatory statement is attached). I solemnly swear (or affirm) that the statements made on this application are true and the photograph attached is a true likeness of me. (Emphasis added.) II. ANALYSIS The DHS argues that clear and convincing evidence establishes thatthe respondent is removable under section 237(a)(1)(A) of the Act becauseshe was inadmissible at the time of her adjustment of status undersection 212(a)(6)(C)(ii). With a limited exception not applicable in this case,that section provides for the inadmissibility of “[a]ny alien who falselyrepresents, or has falsely represented, himself or herself to be a citizen of theUnited States for any purpose or benefit under this Act (includingsection 274A) or any other Federal or State law.” Section 212(a)(6)(C)(ii) ofthe Act. We agree with the DHS that the respondent was inadmissible undersection 212(a)(6)(C)(ii) of the Act at the time of her adjustment of status,because the record contains clear and convincing evidence establishing thatshe falsely represented herself to be a United States citizen for the purpose ofobtaining a benefit under the Act or any other Federal or State law. This provision is broadly defined and encompasses the respondent’s representationon her passport application that she was born in Texas. It is undisputed thatthe respondent signed the application, and the Immigration Judge found thatshe willfully misrepresented on the application that she was born in Texas. As noted above, by signing the passport application the respondent affirmed thatshe had “acquir[ed] United States citizenship.” Moreover, the respondent’s conviction establishes that she willfully andknowingly provided the false information regarding her place of birth onthe passport application. See, e.g., United States v. George, 386 F.3d 383, 389 (2d Cir. 2004) (holding that a conviction under 18 U.S.C. § 1542 requiresthat a defendant has provided in a passport application information that he orshe knows to be false); United States v. Suarez-Rosario, 237 F.3d 1164, 1167 (9th Cir. 2001) (stating that “under the terms of 18 U.S.C. § 1542, thegovernment must prove that the defendant made a willful and knowing falsestatement in an application for a passport or made a willful and knowing useof a passport secured by a false statement”). The fact that the respondent pled guilty to violating 18 U.S.C. § 1542 precludes her from claiming that she didnot knowingly submit false information to obtain a passport. See Rodriguez v. Gonzales, 451 F.3d 60, 65 (2d Cir. 2006) (determining that an alien whopled guilty to a violation of 18 U.S.C. § 1542 was inadmissible undersection 212(a)(6)(C)(ii) of the Act and was therefore precluded from receivingadjustment of status); see also Pichardo v. INS, 216 F.3d 1198, 1201 (9th Cir.2000) (holding that a conviction under 18 U.S.C. § 911 for making a falseclaim of United States citizenship established an independent ground for thealien’s inadmissibility under section 212(a)(6)(C)(ii) of the Act).4 We disagree with the Immigration Judge’s conclusion that the respondent’sfalse representation on a passport application that she was born in Texas doesnot amount to a claim to be a United States citizen because a noncitizen national can apply for and receive a passport. While a national may be eligible for a passport, see 22 C.F.R. §§ 51.1(l), 51.2(a) (2009), the respondent neverclaimed to be a “national,” a term that has historically “referred only tononcitizens born in territories of the United States.” Fernandez v. Keisler, 502 F.3d 337, 349 (4th Cir. 2007); see also Matter of Navas-Acosta, 23 I&N Dec. 586, 587 (BIA 2003). See generally sections 101(a)(22), 308 of the Act,8 U.S.C. §§ 1101(a)(22), 1408 (2006). The respondent claimed to have beenborn in Texas, not in a territory. The Fourteenth Amendment to theUnited States Constitution provides that “[a]ll persons born or naturalized inthe United States, and subject to the jurisdiction thereof, are citizens of theUnited States and of the State wherein they reside.”5 Therefore the 4 We recognize that in United States v. Karaouni, 379 F.3d 1139 (9th Cir. 2004), the United States Court of Appeals for the Ninth Circuit reversed a defendant’s criminal conviction for making a false claim to United States citizenship under 18 U.S.C. § 911, where the sole evidence was that he checked a box on an employment form indicating that he was a “citizen or national of the United States.” However, Karaouni is distinguishable from this case, in part because it involved a criminal statute that carries the higher burden of proof of guilt beyond a reasonable doubt. See Theodros v. Gonzales, 490 F.3d 396, 401 n.7 (5th Cir. 2007). 5 We note that a person born in the United States is both a citizen and national of the United States at birth unless the individual is not “subject to the jurisdiction” of the United States. Section 301(a) of the Act, 8 U.S.C. § 1401(a) (2006). This limited exception refers generally to individuals born to foreign diplomats or to enemies within the United States during a hostile occupation of part of the territory of the United States. United States v. Wong Kim Ark, 169 U.S. 649, 473-74 (1898). There is no basis to include the respondent within this very narrow group, and even if there were, such an individual is not a citizen or national and is therefore not eligible to receive a United States passport. See 22 C.F.R. §§ 51.1(l), 51.2(a) (providing that a passport may be issued only to a United States citizen or a noncitizen national). respondent’s statement on her passport application that she was born in Texaswould not be consistent with a claim to be a noncitizen national. Section 212(a)(6)(C)(ii) of the Act applies to misrepresentations committedfor any purpose or benefit under the Act or any other Federal or State law.Obtaining a United States passport is clearly a benefit within the scope of thissection. A passport affords the bearer the benefit of being able to leave andenter the United States. See Jamieson v. Gonzales, 424 F.3d 765, 768 (8th Cir.2005) (holding that obtaining entry to the United States by claiming to be acitizen of this country is a “benefit” under the Act); cf. section 215(b) of theAct, 8 U.S.C. § 1185(b) (2006) (requiring a United States citizen to have avalid passport to depart from or enter the United States unless otherwiseprovided). A United States passport would also have allowed the respondentto maintain employment in this country, which is the reason she applied for it.6 Further, possession of a valid United States passport is a sufficient basis initself to terminate immigration proceedings. See Matter of Villanueva, 19 I&N Dec. 101, 103 (BIA 1984) (finding that a valid United States passport issuedto an individual as a citizen of the United States constitutes conclusive proofof that person’s citizenship unless the passport is void on its face). Thus, a passport is clearly a “benefit” under the immigration laws, both as proof ofUnited States citizenship and as a means to enter and be employed in this country. We find by clear and convincing evidence that the respondent isremovable under section 237(a)(1)(A) as an alien who was inadmissible at thetime of her adjustment of status under section 212(a)(6)(C)(ii) of the Act.Section 237(a)(1)(H) of the Act does not waive inadmissibility undersection 212(a)(6)(C)(ii). Nor has the respondent applied for or established hereligibility for any other form of relief from removal. Accordingly, the DHS’sappeal will be sustained, and the respondent will be ordered removed from theUnited States. ORDER: The appeal of the Department of Homeland Security is sustained. FURTHER ORDER: The respondent is ordered removed from the United States to Mexico. 6 Section 212(a)(6)(C)(ii) specifically contemplates including as a “benefit” under the Act those benefits available pursuant to section 274A of the Act, 8 U.S.C. § 1324a (2006), which relates to alien employment.