On July 28, 2016, the Board of Immigration Appeals (BIA or Board) in a lengthy and densely-reasoned opinion, issued a precedent decision analyzing INA §212(a)(6)(C)(ii)(I) on remand from the 2nd Circuit Court of Appeals. Respondent, a native of Trinidad and Tobago who had entered the U.S. as a non-immigrant visitor, had previously been arrested and interviewed by DHS officers, to whom he claimed he had been born in Brooklyn, New York and was a U.S. citizen. Before the Immigration Judge (IJ), charged as an overstay (among other grounds), respondent sought adjustment of status while DHS argued for inadmissibility under §212(a)(6)(C)(ii)(I) for the prior false claims to citizenship; the IJ upheld the overstay charge and found respondent ineligible for adjustment, holding the false claims had been made to obtain a “benefit” under the Act, and ordered him removed.
The Board dismissed a subsequent appeal and respondent filed for review with the 2 nd Circuit, which vacated the BIA decision and remanded for “an authoritative analysis of section §212(a)(6)(C)(ii)(I).” In parsing this issue, the BIA initially interpreted the statutory language, stating that the section contains 3 components: one is inadmissible if he or she 1) falsely represents him– or herself to be a U.S. citizen, 2) for any purpose or benefit, 3) under the Act or any Federal or State law. The Board readily assumed respondent had made the false claim, citing Kungys v. U.S., 485 U.S. 759 (1988) to state that one is inadmissible under (a)(6)(C)(ii)(I) for a false citizenship claim made with the subjective intent to obtain a purpose or benefit, although whether a false claim was made with the required subjective intent is a question of fact to be determined by an IJ; the Board also held that the claim must be made to achieve a purpose or obtain a benefit governed by the Act, State or Federal law (while agreeing with DHS that the presence of such purpose or benefit “must be determined objectively”).
After a thorough review of the scope of INA §212(a)(6)(C)(ii)(I), including relevant Courts of Appeals decisions from the various circuits, the BIA concluded that the section is limited to false claims to U.S. citizenship where there is “direct or circumstantial evidence demonstrating that the false claim was made with the subjective intent” of achieving or obtaining the aforementioned purpose or benefit and that the purpose or benefit must “be determined objectively”, i.e., that U.S. citizenship actually affects or matters to the purpose/benefit sought.
The Board also defined “purpose” and “benefit”, holding that the latter must be identifiable and enumerated in the INA or any other Federal/State law (noting that obtaining a passport, admission into the U.S. and private sector employment are “benefits”), while the former – as mentioned in (a)(6)(C)(ii)I) – includes the avoidance of negative legal consequences, including removal proceedings.
As such, the Board held that respondent had failed to meet his burden of establishing admissibility and that the IJ had properly determined that he had “the subjective intent to avoid removal proceedings” when he made his false claims to U.S. citizenship. The BIA therefore concluded that respondent had not shown, at the time of his false claim, that he did not have the subjective intent to achieve the purpose of avoiding deportation; finally, the Board held he had not shown that “citizenship would not actually affect his ability to achieve his intended purpose” of avoiding removal and dismissed the appeal. Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).
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