If you were to ask me what was one of the worst “reforms” of the immigration laws in 1996, I would say high on the list is a portion of the “reform” statute passed by Congress and signed into law by President Bill Clinton that made a non-citizen making a false claim to U.S. citizenship both inadmissible to, INA § 212(a)(6)(C)(ii), and deportable from, INA § 237(a)(3)(D), the United States.
What is the scope of this removability ground? Does it apply to a young teenager lying to get a job or to get into the United States after forgetting his travel permit at home? A child or teenager who actually thought he was a U.S. citizen or had no real concept of what being a citizen means? A child or teenager who had no idea that making a false claim was a non-waivable bar to ever living in the United States?
Explaining the interstices of statutes is what regulations do. For USCIS, sometimes policy memoranda do the job when regulations are too time-consuming and difficult or too controversial to promulgate. USCIS’s adjudicator’s manual – the instruction book for its officers – sometimes explains what USCIS thinks a statute means. And sometimes, albeit rarely, it is a letter from a USCIS official to someone asking a question that explains USCIS’s policy or a new policy.
On September 12, 2013, forgoing regulations or a policy memorandum or an entry in its adjudicator’s manual, USCIS announced its new policy on false claims of citizenship by children under age 18 in a letter dated September 12, 2013, to the Senate Majority Leader, Harry Reed. Essentially, addressing the inadmissibility ground, it said that USCIS will not consider a false claim by a person under 18 as a ground of inadmissibility IF the person did not know he or she was making a false claim or did not understand the nature and consequences of a false claim. I suppose the latter means that the person did not understand that it would pose a permanent bar to entry into the United States – which I venture few people, over or under 18, know.
The State Department also wrote Senator Reid a letter, dated August 29, 2013, explaining that in light of USCIS’s policy, it would be changing its policy too as will be reflected in its Foreign Affairs Manual (FAM), its how-to guide for consular officers.
The State Department earlier this year announced that it updated its FAM instructions regarding false claims of citizenship, but then quickly retracted the new instructions.
Despite the kooky way USCIS and the Department of State announced the new policy, this is certainly welcome good news – particularly for people permanently barred from the United States and families permanently separated because of a minor youthful indiscretion
However, there are many, many questions unanswered:
1. Does this interpretation apply to the deportability ground?
2. Does Immigration and Customs Enforcement (ICE) go along with this?
3. Does Customs and Border Protection (CBP) go along with this?
4. Will the immigration courts, the BIA, and the Courts of Appeal go along with this?
5. Will old, denied cases be reopened?
6. Will the government loosen up on people over 18 who did not know what they were doing?
A few months ago we thought Congress was poised to dramatically re-write the immigration laws. It should be noted that 17 years after the 1996 re-write, we still do not know what all of it means and our understanding can change with the opening of an envelope sent by a bureaucrat to a politician. A whole new meaning to “the power of the pen.”Posted September 22, 2013.