POTENTIAL ARGUMENTS TO DEFEAT A CHARGE OF FALSE CLAIM TO U.S. CITIZENSHIP
Because there is no waiver available for this permanent bar, the person has to raise a defense, which may include the following:
a. Waiver of inadmissibility available for claims made prior to Sept. 30, 1996False claims to U.S. citizenship made before September 30, 1996 may still render one inadmissible pursuant to ? 212(a)(6)(C)(i) as fraud or misrepresentation if made to a U.S. government official to obtain a benefit under the INA. A waiver of inadmissibility for this ground is available in limited circumstances under INA ? 212(i) if the individual can show extreme hardship to a U.S. citizen or LPR spouse or parent.
b. The claim was in good faith or not made "knowingly"Immigration officers, immigration judges, government counsels, and U.S. Consulate officers generally agree that the false U.S. citizenship claim must be intentionally or knowingly made. Your mental capacity and English language skills could be relevant to whether you intentionally or knowingly made a false claim. You have an affirmative defense if you made the false claim while you were a minor. There is also a specific exception preventing deportation if you were under age 18 when you made the false claim, you permanently resided in the U.S. (with a green card) before you turned 16, each of your natural or adopted parents were U.S. citizens or are U.S. citizens, and you reasonably believed you were a citizen, too. There is also ambiguity in old versions (i.e. before April 3, 2009) of Form I-9, which combined a "citizen or national of the United States" into one box. In this situation, the person may argue that the I-9 doesn't show clearly whether he claimed to be a citizen or national. Immigration law punishes false claims to U.S. citizenship, but not false claims to U.S. nationality.
c. Claim was made by someone elseThe statute states clearly that the individual must have represented "himself or herself" as a citizen. Therefore, claims made by a third party on one's behalf should not give rise to a charge of having made a false claim to U.S. citizenship. ?? 212(a)(6)(C)(ii); 237(a)(3)(D). However, even where the claim was made by a third person, an individual who was aware of and was an active participant in the claim, may be deemed to have made a false claim to U.S. citizenship where all the other elements are present. For example, in an unpublished decision, the BIA concluded that where an individual who does not speak English has her photo taken, observes the creation of a false identification card, is present while a third party fills out an employment verification form using a U.S. birth certificate, and uses the false documents, the individual has made a false claim to U.S. citizenship. Rut Betania Castillo de Figueroa, A095 982 111 (BIA Dec. 11, 2013).
d. Timely RetractionIf you timely and voluntarily retract your false U.S. citizenship claim, you will probably not be found inadmissible or removable. For this defense to work, you would have to timely and voluntarily take back your false claim and correct the error before the lie is exposed or is about to be exposed. What would qualify as a timely retraction depends largely on the facts, but must be done at the first opportunity.