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BIA Holds that a Fraudulently Obtained Certificate of Naturalization Does not Confer Citizenship

BIA Holds that a Fraudulently Obtained Certificate of NaturalizationIn a decision issued last month, the Board of Immigration Appeals ruled that a fraudulently obtained certificate of citizenship does not confer United States citizenship. The Board also held that Section 237(a)(3)(D)(i) of the Act does not require knowledge that the immigrant knew that the certificate was fraudulent to be deportable.

What is Naturalization?

Naturalization is the process under which an immigrant becomes a United States citizen. An immigrant usually must be a permanent resident for at least three years to be eligible for naturalization. The applicant must file form N-400 with the Service. The applicant must also go through a background check, and interview and a swearing-in ceremony to become a citizen. The Service issues a certificate of citizenship at the end of the process. The certificate is usually proof that an immigrant was naturalized and has become a United States citizen.

Other Ways to Obtain a Certificate of citizenship

There are other ways to obtain a certificate of naturalization. An immigrant who had derived citizenship through the naturalization of a parent, for example, may file a form N-600 with the Service to show his or her derivative status. Alternatively, a United States citizen who has misplaced or lost her certificate may file the form to obtain a replacement.

Deportability Under 237(a)(3)(D)(i)

This section of the Immigration and Naturalization Act states:

Falsely Claiming Citizenship

(i) In general

Any alien who falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any Federal or State law is deportable.

(ii) Exception

In the case of an alien making a representation described in clause (i), if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be deportable under any provision of this subsection based on such representation.

The section makes a person who falsely claims citizenship deportable under the Act. There is an exception under the Act for someone who had resided in the United States since he was 16 years old, and has a parent who is a United States citizen. An unsettled issue has been whether this section required a mental state for deportability.

Matter of Zhang, 27 I&N Dec. 569 (BIA 2019)

Matter of Zhang involved an immigrant who was admitted to the United States as a permanent resident in 191. Through intermediaries, he purchased a certificate of naturalization (N-550) from a former Service officer who was convicted of fraud. He was charged as removable under 237(a)(3)(D)(i), as a person who falsely claimed to be a United States citizen. The immigration judge ruled that he was deportable but granted him Cancellation of Removal for Permanent Residents. He appealed the immigration judge’s decision arguing that he was not deportable since the Service did not prove that he knowingly committed the fraud.

The Board of Immigration Appeals upheld the immigration judge’s decision reasoning that Section 237(a)(3)(D)(i) did not have an explicit requirement for a mental state. The Board added that is Congress intended such a requirement it would have made such requirement explicit in the text. The Board stated that there will be no need for the good-faith exception if knowledge was a requirement.

First, I would like to mention that the decision to appeal the immigration judge’s ruling was horrible. The facts, in this case, were not in the immigrant’s favor. Second, this was a terrible appeal since the immigrant did, in fact, commit a fraudulent act. Buying a certificate of naturalization is a horrible act that should be deportable. Lastly, if you do commit fraud and receive relief from removal, you should just take yes for an answer and be happy with the decision.

The only good thing here is that we got a clarification of the scienter requirement under the section.

  • BIA Rules that False Claims to Citizenship at Entry Makes Alien Inadmissible
  • Challenge to INA §204(C) Determination Leads to Approval of Permanent Residence in Tampa Field Office
  • What is a Notice to Appear?
  • All You Need To Know About Citizenship Through Naturalization
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