According to correspondence by the U.S. Department of Homeland Security (DHS) and the U.S. Department of State (DOS) to Senator Harry Reid, the U.S. Government has modified its position, with respect to minors, on the application of Section 212(a)(6)(C)(ii) and 237(a)(3)(D) of the Immigration and Nationality Act, dealing with false claims to U.S. Citizenship. A finding of false claim to U.S. Citizenship is a permanent bar to immigration benefits, as well as a removability ground, and generally speaking, there is no waiver. There is only a limited exception for certain permanent resident minors, whose parents are U.S. Citizens and who reasonably believe that they are U.S. Citizens at the time of the misrepresentation.
The DHS and DOS plan to formally amend their respective policy manuals to reflect the following:
- 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").
- 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").
The two agencies are working on procedures for applying the new interpretation to individuals who have been previously denied. This new guidance, when formally published and enforced, can make a big difference for individuals who have falsely claimed U.S. Citizenship as minors, but who are otherwise eligible for immigration benefits.