USC Claims & Form I-9
The false USC claim issue has most commonly arisen where the foreign national misrepresented his status on Form I-9 to gain employment by checking Box 1, thereby attesting under penalty of perjury that he is “A citizen or national of the United States” (emphasis added). This is a common occurrence because employers are generally prohibited from requesting further documentation from the prospective employee once documentation of his identity and right to accept employment (most typically a state-issued driver’s license and social security card) have been presented.
The most common defense to cases arising under this scenario has focused on the ambiguous nature of the Form I-9 attestation and whether the person has in fact falsely claimed to be a U.S. citizen, a U.S. national, or something else. In that regard, it is critical to note that INA §212(a)(6)(C)(ii) punishes only false USC claims, not false claims to U.S. nationality.11 As such, attorneys have argued that since it is unclear whether the person was claiming to be a U.S. citizen or U.S. national, a false USC claim has not been made absent clear evidence to the contrary. Related arguments to refute false USC allegations include the fact that the terms “citizen” and “national” are commonly used interchangeably by U.S. immigration officials and attorneys, and are accordingly ambiguous and/or vague;12 that in the vast majority of cases, where only a driver’s license and social security card were presented in support of Form I-9 (as opposed to a U.S. passport or birth certificate), it is impossible to determine what status the person was claiming; and that due to the draconian impact of the false USC statute, any ambiguity should be resolved in favor of the alien (commonly referred to as the “rule of lenity”).13
Indeed, up until the recent series of 8th Circuit decisions, various legal authority from the United States Citizenship and Immigration Services (USCIS),14 the Board of Immigration Appeals,15 and the courts16 clearly recognized the “citizen/national” ambiguity as a valid defense in many cases involving alleged false USC claims on I-9 forms. Further, the 8th Circuit’s Ateka decision specifically recognized the citizen/national distinction and held that, due to the ambiguous nature of the form, for an alien to be inadmissible there must have been independent corroborating evidence showing that he intended to claim U.S. citizenship. In Ateka, the foreign national had testified to an immigration officer during his adjustment-of-status interview that he had falsely claimed to be a U.S. citizen when completing various I-9 forms to gain employment. His application for adjustment of status was thus denied due to the false USC claim and he was placed in removal proceedings, where he renewed the application before the immigration court. Although he argued that his actions (merely checking the ambiguous Box 1 on Form I-9) did not constitute a false USC claim, the immigration judge, Board of Immigration Appeals, and Court of Appeals each ruled that his prior testimony to the immigration officer stating that he had claimed to be a U.S. citizen to gain employment provided independent corroboration of his intent.