On June 28, 2019, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of an order by the Immigration Judge (IJ) finding respondent, who had falsely claimed to be a U.S. citizen, removable per INA §237(a)(3)(D) for that misrepresentation but granting his application for cancellation of removal; neither party appealed the cancellation grant but respondent appealed the finding of removability. Respondent had been admitted to the United States as a lawful permanent resident but, subsequently purchased a Naturalization Certificate from an employee of the legacy-INS without properly completing the naturalization process (he testified before the IJ that he could not pass the English and civics tests).
On appeal, respondent claimed that he was a U.S. citizen and thus not removable and, therefore, that proceedings should be terminated. He argued that DHS had to prove he had made a false claim to U.S. citizenship that was “willful” or “knowing” to be found removable under §237(a)(3)(D). He also asserted “that he has always believed he was a United States citizen and that because he acted in good faith,” he did not obtain the Naturalization Certificate for any “benefit” under the Act (INA). In rebuttal, DHS argued that the statutory language of §257(a)(3)(D) “does not require intent or a culpable mental state.” The BIA stated that the question before it was whether a false claim to U.S. citizenship must be made knowingly to render the maker removable.
Initially, the Board found it has “a duty” to follow the plain and unambiguous language of the statute. On its face, §237(a)(3)(D)(i) provides that one is removable if he “falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit.” The BIA noted that the plain language of this section does not require an intent to falsely represent citizenship status. (In a footnote, the opinion pointed out that INA §212(a)(6)(C)(i) renders one inadmissible if he by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the U.S. or other benefit provided for under the Act. The absence of a “knowing” or willful” requirement for false claims to citizenship in both 212(a)(6)(C)(i) and 237(a)(3)(D)(i), concluded the Board, indicates that there was no congressional intent to include one.) The BIA went on to note that Congress had established a “narrow exception” for those whose parents are or were U.S. citizens, who permanently resided in the U.S. before the age of 16, and who reasonably believed that they were U.S. citizens when they made such a claim.
Concluding that this exception “shows that Congress chose to exclude a scienter requirement” from 237(a)(3)(D)(i), the Board concluded that, under the plain language of that section, it is not necessary to show intent to establish that a respondent is deportable for making a false representation of U.S. citizenship; one need only “falsely claim to be” a U.S. citizen “for any purpose or benefit under the Act or any Federal or State law” to be found deportable.
As to respondent’s reliance on Matter of Barcenas-Barrera, 25 I&N Dec. 40 (BIA 2009), the BIA distinguished that precedent decision, finding it did not resolve the instant issue because, in that case, the appellant was convicted of willfully and knowingly making a false representation of birth in the U.S. on a passport application and therefore was found inadmissible under INA §212(a)(b)(C)(ii). Barcenas-Barrera did not, found the Board, stand for the “broad proposition” that, in order for a false claim to U.S. citizenship to have any negative consequence, “it must be made knowingly and intelligently.” In the instant case, the IJ found that respondent had falsely claimed U.S. citizenship after unlawfully purchasing a Naturalization Certificate and using it to obtain a U.S. passport-clearly, concluded the decision, “a ‘benefit’ under the Act.” Additionally, the IJ had concluded that respondent’s use of the passport to travel abroad and reenter the country was itself “a benefit”.
The BIA thus found no clear error in the IJ’s holding that respondent’s false claim to citizenship was made with a subjective intent to obtain such benefits. He was also correct, stated the opinion, in concluding that respondent is removable under §237(a)(3)(D) because of the existence of clear and convincing evidence that his unlawful acquisition of the Certificate “was for the purpose of obtaining these benefits.”
Finally, addressing respondent’s claims that he is a U.S. citizen and that DHS lacked the authority to cancel his Naturalization Certificate, the Board noted that – contrary to his arguments – the instant matter “does not involve the revocation of naturalization,” which can only happen in federal district court. Similarly, the decision confirmed DHS’s authority to cancel a Naturalization Certificate, as the statute and regulations provide for administrative cancellation when a Certificate is illegally or fraudulently obtained or created. Citing to Matter of Falodun, 27 I&N Dec. 52 (BIA 2017), the BIA concluded that a Naturalization Certificate cannot be administratively cancelled if it was issued to one who lawfully filed for naturalization and completed the entire process, including the oath of allegiance. As responded was never lawfully naturalized, his Certificate was properly cancelled. Therefore, the IJ’s finding of removability was upheld and the appeal dismissed. Matter of Zhang, 27 I&N Dec. 569 (BIA 2019).