AN ANALYSIS ON INSPECTION, ENTRY AND ADMISSION –
Admission to the United States is very important when dealing with immigration law. Whether a foreign national has been admitted can actually determine eligibility for immigration relief, including adjustment of status or a waiver, the procedural rules that may apply in removal proceedings, and even the grounds of removal to which a person may be subject.
The article focuses on the meaning of “admission” in only four very specific, but frequently encountered situations:
1. ENTRY AFTER BEING “WAVED THROUGH” BY AN INSPECTOR –
Has a non citizen been admitted if he or she is “waved” through at a port of entry without being asked any questions?
Yes. Under Matter of Areguillin and Matter of Quilantan, non citizens who present themselves for inspection at the border, who do not make a false claim to U.S. citizenship, and who are allowed to enter the United States—even if not questioned by an immigration officer and even if they do not have valid entry documents—have been “admitted.” These individuals have not “entered without inspection.”
Does a noncitizen without entry documents who is “waved through” inspection and allowed to enter the United States gain lawful status upon admission? If not, is there a benefit to having been admitted?
Although a non citizen without valid entry documents has been admitted to the United States if he or she was “waved through” by an immigration inspector, he or she does not gain lawful immigrant or non-immigrant status following this admission. Thus, upon admission, the individual is present in the United States without lawful status and subject to removal under the deportability charge INA § 237(a)(1)(A) (inadmissible at the time of entry).
Nonetheless, because such a person was admitted, he or she may be eligible for immigration benefits in the future. For example, a non citizen who subsequently marries a U.S. citizen or has a U.S. citizen child who is over 21, would be eligible to adjust to lawful permanent resident status under INA § 245(a). An undocumented non citizen who entered without inspection can only adjust status—even if married to a U.S. citizen or the parent of an adult U.S. citizen—if he or she meets the much more restrictive requirements of INA § 245(i).
Additionally, should a person who is waved through later be placed in removal proceedings, he or she must be charged with a deportation ground—which applies to non citizens who are “in and admitted to the United States,” INA § 237—as opposed to grounds of inadmissibility Non citizens who have been admitted and are charged under the deportation grounds have somewhat greater procedural rights in removal proceedings, see INA § 240(c)(3) (placing the burden of proof of deportability on the government).
2. ENTRY GAINED UPON FRAUD OR MISREPRESENTATION (OTHER THAN FALSE CLAIM TO CITIZENSHIP) –
Has a non citizen been admitted if he or she gains entry by fraud or misrepresentation (other than a false claim to U.S. citizenship)?
The majority of circuit courts and the Board treat a non-citizen who has been inspected and allowed to enter as someone who has been admitted even if the admission was gained through fraud, misrepresentation or the use of false documents.
What are the consequences of an entry that is based upon fraud or misrepresentation?
Any non-citizen who, by fraud or wilfully misrepresenting a material fact, seeks, has sought, or has procured any benefit under the INA, is inadmissible. INA § 212(a)(6)(C)(i). Thus a non citizen who was admitted based upon a misrepresentation could be charged in removal proceedings as deportable under INA § 237(a)(1)(A) for being inadmissible at the time of entry. A defence to this ground of inadmissibility is that the statement was not a knowing and deliberate misrepresentation.
A “fraud waiver” under INA § 212(i) may cure some entries based on fraud or misrepresentation. The waiver is available to a non citizen who: 1) is the spouse or son or daughter of a U.S. citizen or an LPR; and 2) can demonstrate that the denial of admission would result in extreme hardship to this relative. In VAWA self-petitioner cases, the self-petitioner, a United States citizen, LPR or qualified relative may demonstrate the necessary extreme hardship.
Case law almost conclusively establishes that an admission through fraud or misrepresentation remains nevertheless an admission for adjustment purposes. The challenge for the practitioner is to document and detail the circumstances surrounding the admission, as well as to prepare for the consequences of any removal charge that the government may impose on the client upon full disclosure of the relevant facts.
3. ENTRY GAINED UPON A FALSE CLAIM TO U.S. CITIZENSHIP –
Has a non citizen been admitted if he or she gains entry by making a false claim to U.S. citizenship?
No. Unlike other fraud and misrepresentations, a noncitizen who gains entry by making a false claim to U.S. citizenship is treated as if he or she was not inspected at all; that is, his or her entry is treated as if it is an “entry without inspection.”
What are the immigration consequences of a false claim to U.S. citizenship made while seeking entry?
A non-citizen who is found to have made a false claim to U.S. citizenship for any purpose or benefit under the INA or any other federal or state law is permanently inadmissible to the United States. INA § 212(a)(6)(C)(ii)(I), unless a defence to the inadmissibility exists. There is no waiver for this ground of inadmissibility. While making oral misrepresentations to a border official in order to enter the United States clearly implicates INA § 212(a)(6)(C)(ii)(I), courts have limited the applicability of the provision in other contexts by discerning whether the false claims of citizenship were made for a “purpose or benefit” under the INA or other federal or state law. v. Holder, 604 F.3d 915, 928-29 (6th Cir. 2010) (false claim on a small business loan application, false claim upon arrest for purpose of minimizing risk that police would report to DHS does not fall under false claim bar). See also Castro v. Attorney Gen., 671 F.3d 356, 370 (3d. Cir. 2012)
This ground of inadmissibility applies to false claims to U.S. citizenship made on or after September 30, 1996, the enactment date of IIRIRA in which § 212(a)(6)(C)(ii)(I) was included as a separate ground of inadmissibility. See Appendix 74.8, USCIS Adjudicator’s Field Manual (https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1.html). Prior to this, false claims to U.S. citizenship were covered under the general inadmissibility ground for misrepresentation, for which a waiver is available under INA § 212(i) (see section II, above). For false claims that were made before September 30, 1996, and that are not considered to be continuing, a § 212(i) waiver is available for those eligible. (See section II, above, regarding the §212(i) waiver).
What defences may be available to counter a charge of inadmissibility for a false claim to citizenship?
• The individual was a child when he or she made a false claim to U.S. citizenship –
The age of a child is a relevant factor to consider with respect to the defense of a false claim to U.S. citizenship. To date, neither the Board nor a federal court has issued a precedent decision on whether a minor has the legal capacity or state of mind to make a false claim to U.S. citizenship.
Following the Sandoval decision, in 2013, the Foreign Affairs Manual (“FAM”) was amended to provide for an affirmative defense for children under the age of 18 who “lacked the capacity (i.e., the maturity and the judgment) to understand and appreciate the nature and consequences of a false claim to citizenship.” FAM 40.63 N11(b)(2).
• The noncitizen honestly believed he or she was a U.S. citizen.
Pre-1996 false claims: Prior to IIRIRA, only false claims to citizenship that were made willingly and knowingly rendered a noncitizen inadmissible. Matter of Wang, 11 I&N Dec. 712 (BIA 1966). The Board had held that a noncitizen who honestly believed he was a citizen at the time of entry would not be deportable for a knowing false claim to citizenship; moreover, unlike a noncitizen who has made a knowing false claim, one who was admitted upon the honest but mistaken belief that he was a U.S. citizen would be found to have been “inspected” within the meaning of the immigration laws.
Post-1996 false claims: Unlike pre-1996 false claims, for which the inadmissibility ground is INA § 212(a)(6)(C)(i), the statutory language in INA § 212(a)(6)(C)(ii)(I) does not contain an element of wilfulness. Thus, the statute is written in terms of strict liability.
However, in practice, there is a defence if the noncitizen honestly believes he or she is a U.S. citizen. USCIS instructs its adjudicators that for a claim to be “falsely” made, a noncitizen must “knowingly” misrepresent the fact that he or she was not a citizen of the U.S. The such belief must be “reasonable.” When seeking admission or adjustment of status, the individual has the burden of proving clearly and without doubt that at the time of making the false claim, the individual thought he or she was a U.S. citizen. See USCIS Adjudicator’s Field Manual.
• The noncitizen retracted the claim in a timely manner.
In pre-1996 cases, the BIA had long recognized that a timely retraction of a false or fraudulent claim—including a false claim of U.S. citizenship—has the effect of withdrawing the claim. See, e.g., Matter of R – R –, 3 I&N Dec. 823 (BIA 1949). It must be “voluntary and without delay. A retraction will not satisfy this standard if it is “not made until it appeared that the disclosure of the falsity of the statements was imminent.”
USCIS explicitly recognizes a timely retraction as a defence to a charge of inadmissibility under INA § 212(a)(6)(C)(ii)(I). See AFM § 40.6.2(c)(2)(C)(viii). While there are no precedent Board decisions on whether this defence applies to the post-IIRIRA false claim provisions, at least two unreported decisions recognize the defence. See In re Marrakchi, 2003 WL 23216757 (BIA September 29, 2003) (relying on Matter of R – R – and finding the noncitizen not inadmissible under INA § 212(a)(6)(C)(ii) due to timely retraction of his false claim to citizenship); In re Valadez-Munoz, 2006 WL 1558823 (BIA April 12, 2006) (rejecting an immigration judge’s characterization of the timely retraction doctrine as “antiquated” but finding that respondent had not timely retracted his false claim to citizenship), aff’d Valadez-Munoz v. Holder, 623 F.3d 1304 (9th Cir. 2010); but see In re Cerda Duarte, 2007
WL 416832 (BIA Jan. 24, 2007) (finding that, even if the timely retraction doctrine applies to INA § 212(a)(C)(ii), it should not be allowed in a border case in which an unquestioned false claim to citizenship could lead to the noncitizen being “waved through” and admitted)
4. IMPACT OF THESE THREE TYPES OF ENTRY ON A DACA APPLICATION –
Each of the three entry situations discussed above involves an issue of inadmissibility. Although inadmissibility may result in adverse immigration consequences, inadmissibility by itself does not bar eligibility for Deferred Action for Childhood Arrivals (DACA).
Additionally, as discussed, the immigration consequences of a false claim to U.S. citizenship made after September 30, 1996 are extremely serious. There is no waiver available and, absent a defence, a noncitizen who is found to have made such a claim will be permanently inadmissible. Consequently, it is critical that a DACA applicant who has made such a claim understand the potential immigration consequences, the risks involved in applying for DACA, and if a decision is made to go forward with a DACA application, how to present information on the application.
When applying for DACA and the related employment authorization document (EAD), noncitizens must answer questions about the manner of their initial entry into the United States. Noncitizens who are “admitted” to the United States have more options with respect to possible future immigration benefits than individuals who entered without inspection. Thus, it is important not to misclassify an entry as being an “entry without inspection” if it was actually—or even possibly—an admission. Additionally, because the entry may have been years ago and/or may have been when the DACA applicant was very young, his or her memory of what took place may be incomplete. In order to preserve the ability to bring future claims to which the applicant might be entitled, and to minimize any conflict with future statements, one answer to question 15 (“Status at Entry”) on the DACA application that would be accurate for all three situations is the drop-down selection “no lawful status.”
With respect to questions 14 (“Manner of Last Entry”) and 15 (“Current Immigration Status”) on the EAD application, an applicant could accurately answer “no lawful status” with respect to all three situations
5. ENTRY WITHOUT INSPECTION AND SUBSEQUANT GRANT OF TPS: DOES THIS QUALIFY AS AN ADMISSION FOR PURPOSES OF ADJUSTMENT OF STATUS?
The relevant provision in the TPS statute, INA § 244(f)(4), reads:
For purposes of adjustment of status under section 245 and change of status under section 248, the alien shall be considered in, and maintaining, lawful status as a non-immigrant.
In brief, the argument is that the phrase “shall be considered in, and maintaining, lawful status as a nonimmigrant” is plain and unambiguous; it must be interpreted as satisfying the admission requirement for purposes of adjustment of status. The most critical points supporting this argument are:
- » First, USCIS’s review and approval of a TPS application constitutes an “inspection.” A TPS applicant must register by submitting a complete application and extensive evidence; must be fingerprinted; must demonstrate that he or she is not inadmissible under a number of inadmissibility grounds; and may be required to attend an interview.21
- » Second, upon being granted TPS, the statute mandates—through the use of the word “shall”—that the individual be treated as if he or she is “in, and maintaining lawful status as a non-immigrant.” A noncitizen can only be in non-immigrant status if he or she was admitted to the United States in that status.22 Thus, by “considering” the TPS recipient as being in non immigrant status, the statute necessarily “considers” the individual to have been admitted to the United States.
- » By its clear terms, § 244(f)(4) applies to § 245(a) in its entirety, and not simply § 245(c)(2) as the government has argued in its briefing in the federal court cases.
- » Additionally, § 244(f)(4) applies to all TPS recipients and not merely a subclass of these recipients as the government has argued.
- » The government’s own regulations are in accord with this plain reading of the TPS statute. In the regulations pertaining to adjustment of status, the phrase “lawful immigration status” is defined to mean a person “admitted to the United States in non immigrant status.” 8 C.F.R. § 245.1(d)(1)(ii) (emphasis added).
- » In short, § 244(f)(4) creates a legal fiction that the TPS recipient is in lawful non-immigrant status, regardless of whether he or she satisfies the definition of a non-immigrant. See INA § 101(a)(15) (defining numerous categories of non-immigrant’s). Because an admission is a prerequisite to a person “being in” non-immigrant status, the TPS recipient necessarily must also be considered to be admitted, regardless of whether he or she satisfies the definition of admitted.
AMERICAN IMMIGRATION COUNCIL’S PRACTICE ADVISORY