Permanent bars to immigration of children

Sunday, February 5th, 2012
By: Jonathan MontagJ.D.

According to INA § 212(a)(6)(C)(ii)(I), “[a]ny alien” who makes a false claim to United States citizenship “for any purpose or benefit under this [Immigration and Nationality] Act or any Federal or State law is inadmissible.  There is no waiver to this ground of inadmissibility, thus making it a permanent bar to admission to the United States.

According to INA § 212(a)(9)(C)(i)(I), “[a]ny alien”  person who has accrued more than a year of unlawful presence, departs, and then comes back, or tries to, without being admitted, i.e, sneaks back or tries to sneak back, is inadmissible. Only after waiting ten years outside the United States and then applying for and receiving special permission to come back can a person be admitted to the United States. This bar is called the “permanent bar.”

Suppose a child made a false claim to United States citizenship or a child was in the United States illegally, departed and then returned, would these bars still apply?  On the one hand, the words “any alien” mean “any alien.” Case closed. On the other hand, if a child is put up by an adult to tell an inspector that he or she is a United States citizen or told to hand an inspector a document that says the child is a United States citizen, does a child have the legal capacity to commit this fraud?  If a child is brought back and forth across the border illegally, does the child have the ability to control his movements so that he must face a permanent bar as a result. Does a child have the capacity to say to his parent, “Mother, I prefer not to cross the border as I have accrued an aggregate of more than one year of unlawful presence, so allow me to remain in my native land and I will fend for myself as you and the rest of my family traverse the border surreptitiously and leave me all alone?” Hardly not.

Does the law require such a perverse outcome – visiting the iniquities of the parents on the children. In the Ten Commandments, Exodus 34:7, God informs that he visits iniquities of parents on children for three and four generations (God is kind of wishy-washy here; How about a bright line, three or four?). Does American jurisprudence do better than that?

Regarding the false claim ground, a 2008 article reporting on State Department thinking, says:

There are no waivers for false claims of citizenship made on or after September 30, 1996, although there is one narrow exception. INA § 212(a)(6)(C)(ii) does not have an intent requirement and does apply to minors. Nevertheless, children under age 18 will not necessarily be found to have triggered the ground of inadmissibility in INA § 212(a)(6)(C)(ii). That finding will be based on the age of the child and the specific circumstances. Most of these cases are now being sent to the Visa Office in Washington, DC for an advisory opinion.

This is clearly not the view of the entire government. The State Department does not seem to be following this practice. Other government actors do not carve out an exception for children as is made clear by an Eight Circuit decision from 2001, Sandoval v. Holder.   The case deals with Alejandra Sandoval, a 16 year old who made a false claim to United States citizenship. The immigration judge in the case decided that to bar a person from becoming a permanent resident and banishing him or her from this country was like a death sentence, and in the United States we cannot execute 16 year olds.  He thus held that because of Alejandra’s age, her false claim would not bar her adjustment of status. The government’s counsel was not impressed with this analogy, or the immigration judge’s citations to other authorities that children lack the capacity to commit frauds, and appealed. The BIA reversed the immigration judge and remanded the case. The immigration judge then found that Alejandra was inadmissible. She appealed and the BIA concurred with the immigration judge’s new decision. Alejandra appealed to the Eighth Circuit. In its decision, the Sandoval court wrote:

At oral argument, in contrast to the brief, the government conceded the statute would not apply to an eight-year-old child whose parents armed her with a fraudulent birth certificate and instructed her to say she was a United States citizen if asked by the officer. Having thereby departed from the black-and-white construction of the statute in favor of the case-by-case approach, the government nevertheless struggled to articulate why Sandoval fell on the wrong side of the divide.

The court remanded the case to the BIA to determine if an 8 year old is too young, what is the age when a false claim is binding on a child or what factors apply in determining if a child has the capacity to make a false claim.

That children cannot be found to commit fraud is not a novel concept. Contracts involving children are not enforced because children lack the capacity to contract. In the immigration context, children under 18 cannot sign affidavits of support (INA § 213A(f)(1))(B)) and cannot apply to naturalize (INA § 334(b)). Moral turpitude grounds of inadmissibility do not apply to minors. State Department guidance to its officers states at 9 FAM 40.21(a) N9.4-1, “Juveniles, who were under the age of 15 at the time of omission of acts constituting a delinquency, are not to be considered as having been convicted of a crime. Therefore, no alien may be found ineligible under INA 212(a)(2)(A)(i)(I) by reason of any offense committed prior to the alien’s 15th birthday. And at 9 FAM 40.21(a) N9.4-2, “… Juveniles between the ages of 15 and 18 at the time of commission of an offense will not be considered to have committed a crime, and thus be ineligible under INA 212(a)(2)(A)(i)(I), unless tried and convicted as an adult for a felony involving violence.” Many other laws, both in immigration law and law in general can be found in this wonderful Law Review Note by Megan Kosse.

The same principles that apply to false claims should apply to the permanent bar based on the 212(a)(9)(C)(i)(I) ground of illegal entry after the accrual of unlawful presence. In fact, it appears from the facts of Sandoval v. Holder that Alejandra Sandoval may have both a false claim bar and a 212(a)(9)(C)(i)(I) bar. The law is replete with references to a child not being free to choose where he lives. The 9th Circuit, in Mercado-Zazueta v. Holder, discusses many of these references. State Department guidance states at 9 FAM 42.22 N5 that “an alien child under the age of 16 years is not considered to possess a will or intent separate from that of the parents with regard to a protracted stay abroad. Accordingly, the residence of a child under 16 follows that of the parent(s) unless the consular officer concludes the parents have a separate intention for the child to return to the United States for residence.”

The issue of applying permanent bars to children is a controversy in the law ripe for review. If cases like this come your way, they are worth fighting. If as an attorney, you do not feel up to the challenge and the reward of being part of making some good law, make sure to at least tell your client there is a good issue there and help him or her find someone to help – probably someone will take it free of charge. It is not unlikely that a Court of Appeals will overrule these harsh readings of the statutes and, by implication, in a small way, improve upon Exodus. Posted January 5, 2012.


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