Cite as 25 I&N Dec. 40 (BIA 2009) Interim Decision #3647
1 The Immigration Judge did, however, find that the respondent was inadmissible at
the time of her adjustment of status under section 212(a)(6)(C)(i) of the Act, as an alien
who sought to procure a United States passport by fraud or willful misrepresentation of
a material fact. He also granted her request for a waiver of inadmissibility under
section 237(a)(1)(H) of the Act, which is available to waive the grounds of inadmissibility
under section 212(a)(6)(C)(i), but not under section 212(a)(6)(C)(ii).
40
Matter of Olga BARCENAS-BARRERA, Respondent
File A093 086 418 – Houston, Texas
Decided June 19, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien who willfully and knowingly makes a false representation of birth in
the United States on a passport application is inadmissible under section 212(a)(6)(C)(ii)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii) (2006), for making
a false representation of United States citizenship.
(2) The respondent, who was convicted of violating 18 U.S.C. § 1542 (2006) for
falsely representing that she was born in the United States on an application for a
passport, is removable under section 237(a)(1)(A) of the Act, 8 U.S.C. § 1227(a)(1)(A)
(2006), as an alien who was inadmissible at the time of her adjustment of status under
section 212(a)(6)(C)(ii) of the Act.
FOR RESPONDENT: Charissee L. Garza, Esquire, Bellaire, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Merilee Fong, Assistant Chief
Counsel
BEFORE: Board Panel: GRANT, MILLER, and MALPHRUS, Board Members.
MALPHRUS, Board Member:
In a decision dated March 29, 2007, an Immigration Judge found that
the respondent is not removable under section 237(a)(1)(A) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as an
alien who was inadmissible at the time of her adjustment of status under
section 212(a)(6)(C)(ii) of the Act, 8 U.S.C. § 1182(a)(6)(C)(ii) (2006),
because she had not falsely represented herself to be a United States citizen.1Cite as 25 I&N Dec. 40 (BIA 2009) Interim Decision #3647
2 The Secretary of State has the authority to issue passports, which has been delegated to
selected agents, including duly designated postal employees, who have the authority to
accept passport applications and administer oaths in connection with such applications. See
United States v. Salinas, 373 F.3d 161, 162 (1st Cir. 2004).
3
According to 18 U.S.C. § 1542 (2006):
Whoever willfully and knowingly makes any false statement in an application for
passport with intent to induce or secure the issuance of a passport under the authority
of the United States, either for his own use or the use of another, contrary to the laws
regulating the issuance of passports or the rules prescribed pursuant to such laws . . .
Shall be fined under this title, imprisoned . . . , or both.
41
The Department of Homeland Security (“DHS”) has appealed from the
Immigration Judge’s determination that the respondent was not inadmissible
under that section. The appeal will be sustained.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico. In March 2003, she
applied at a United States Post Office for a United States passport,2
which
she intended to give her employer as proof that she had authorization to
work. She had previously provided her employer a false social security
card and birth certificate, which the employer had rejected as invalid. The
passport application, which she signed under oath, states that she was born in
“Edinburg, TX.” The respondent’s status was adjusted to that of a lawful
permanent resident in September 2004, based on her marriage to a naturalized
United States citizen.
In March 2006, the respondent was convicted of making a false statement
on an application for a passport in violation of 18 U.S.C. § 1542, for which she
was sentenced to 3 years’ probation.3
Count one of the indictment to which
the respondent pled guilty states that on or about March 12, 2003, she:
willfully and knowingly made a false statement in an application for a passport with
intent to induce and secure for her own use the issuance of a passport under the
authority of the United States, contrary to the laws regulating the issuance of such
passports and the rules prescribed pursuant to such laws, in that in such application
the defendant stated that her place of birth was “Edinburg, TX,” which statement she
knew to be false.
The record contains a copy of page 3 of the respondent’s passport
application, which lists her place of birth as “Edinburg, TX.” Immediately
above the respondent’s signature, the application includes a warning that itCite as 25 I&N Dec. 40 (BIA 2009) Interim Decision #3647
42
should not be signed until requested to do so by the person administering the
oath, as well as the following affirmation:
I have not, since acquiring United States citizenship, performed any of the acts listed
under “Acts or Conditions” on the reverse of this application form (unless explanatory
statement is attached). I solemnly swear (or affirm) that the statements made on this
application are true and the photograph attached is a true likeness of me.
(Emphasis added.)
II. ANALYSIS
The DHS argues that clear and convincing evidence establishes that
the respondent is removable under section 237(a)(1)(A) of the Act because
she was inadmissible at the time of her adjustment of status under
section 212(a)(6)(C)(ii). With a limited exception not applicable in this case,
that section provides for the inadmissibility of “[a]ny alien who falsely
represents, or has falsely represented, himself or herself to be a citizen of the
United States for any purpose or benefit under this Act (including
section 274A) or any other Federal or State law.” Section 212(a)(6)(C)(ii) of
the Act.
We agree with the DHS that the respondent was inadmissible under
section 212(a)(6)(C)(ii) of the Act at the time of her adjustment of status,
because the record contains clear and convincing evidence establishing that
she falsely represented herself to be a United States citizen for the purpose of
obtaining a benefit under the Act or any other Federal or State law. This
provision is broadly defined and encompasses the respondent’s representation
on her passport application that she was born in Texas. It is undisputed that
the respondent signed the application, and the Immigration Judge found that
she willfully misrepresented on the application that she was born in Texas. As
noted above, by signing the passport application the respondent affirmed that
she had “acquir[ed] United States citizenship.”
Moreover, the respondent’s conviction establishes that she willfully and
knowingly provided the false information regarding her place of birth on
the passport application. See, e.g., United States v. George, 386 F.3d 383,
389 (2d Cir. 2004) (holding that a conviction under 18 U.S.C. § 1542 requires
that a defendant has provided in a passport application information that he or
she knows to be false); United States v. Suarez-Rosario, 237 F.3d 1164, 1167
(9th Cir. 2001) (stating that “under the terms of 18 U.S.C. § 1542, the
government must prove that the defendant made a willful and knowing false
statement in an application for a passport or made a willful and knowing use
of a passport secured by a false statement”). The fact that the respondent pledCite as 25 I&N Dec. 40 (BIA 2009) Interim Decision #3647
4 We recognize that in United States v. Karaouni, 379 F.3d 1139 (9th Cir. 2004), the
United States Court of Appeals for the Ninth Circuit reversed a defendant’s criminal
conviction for making a false claim to United States citizenship under 18 U.S.C. § 911,
where the sole evidence was that he checked a box on an employment form indicating that
he was a “citizen or national of the United States.” However, Karaouni is distinguishable
from this case, in part because it involved a criminal statute that carries the higher burden
of proof of guilt beyond a reasonable doubt. See Theodros v. Gonzales, 490 F.3d 396,
401 n.7 (5th Cir. 2007).
5 We note that a person born in the United States is both a citizen and national of the
United States at birth unless the individual is not “subject to the jurisdiction” of the
United States. Section 301(a) of the Act, 8 U.S.C. § 1401(a) (2006). This limited exception
refers generally to individuals born to foreign diplomats or to enemies within the
United States during a hostile occupation of part of the territory of the United States.
United States v. Wong Kim Ark, 169 U.S. 649, 473-74 (1898). There is no basis to include
the respondent within this very narrow group, and even if there were, such an individual is
not a citizen or national and is therefore not eligible to receive a United States passport. See
22 C.F.R. §§ 51.1(l), 51.2(a) (providing that a passport may be issued only to a United States
citizen or a noncitizen national).
43
guilty to violating 18 U.S.C. § 1542 precludes her from claiming that she did
not knowingly submit false information to obtain a passport. See Rodriguez
v. Gonzales, 451 F.3d 60, 65 (2d Cir. 2006) (determining that an alien who
pled guilty to a violation of 18 U.S.C. § 1542 was inadmissible under
section 212(a)(6)(C)(ii) of the Act and was therefore precluded from receiving
adjustment of status); see also Pichardo v. INS, 216 F.3d 1198, 1201 (9th Cir.
2000) (holding that a conviction under 18 U.S.C. § 911 for making a false
claim of United States citizenship established an independent ground for the
alien’s inadmissibility under section 212(a)(6)(C)(ii) of the Act).4
We disagree with the Immigration Judge’s conclusion that the respondent’s
false representation on a passport application that she was born in Texas does
not amount to a claim to be a United States citizen because a noncitizen
national can apply for and receive a passport. While a national may be eligible
for a passport, see 22 C.F.R. §§ 51.1(l), 51.2(a) (2009), the respondent never
claimed to be a “national,” a term that has historically “referred only to
noncitizens born in territories of the United States.” Fernandez v. Keisler,
502 F.3d 337, 349 (4th Cir. 2007); see also Matter of Navas-Acosta, 23 I&N
Dec. 586, 587 (BIA 2003). See generally sections 101(a)(22), 308 of the Act,
8 U.S.C. §§ 1101(a)(22), 1408 (2006). The respondent claimed to have been
born in Texas, not in a territory. The Fourteenth Amendment to the
United States Constitution provides that “[a]ll persons born or naturalized in
the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside.”5
Therefore theCite as 25 I&N Dec. 40 (BIA 2009) Interim Decision #3647
6 Section 212(a)(6)(C)(ii) specifically contemplates including as a “benefit” under the Act
those benefits available pursuant to section 274A of the Act, 8 U.S.C. § 1324a (2006), which
relates to alien employment.
44
respondent’s statement on her passport application that she was born in Texas
would not be consistent with a claim to be a noncitizen national.
Section 212(a)(6)(C)(ii) of the Act applies to misrepresentations committed
for any purpose or benefit under the Act or any other Federal or State law.
Obtaining a United States passport is clearly a benefit within the scope of this
section. A passport affords the bearer the benefit of being able to leave and
enter the United States. See Jamieson v. Gonzales, 424 F.3d 765, 768 (8th Cir.
2005) (holding that obtaining entry to the United States by claiming to be a
citizen of this country is a “benefit” under the Act); cf. section 215(b) of the
Act, 8 U.S.C. § 1185(b) (2006) (requiring a United States citizen to have a
valid passport to depart from or enter the United States unless otherwise
provided). A United States passport would also have allowed the respondent
to maintain employment in this country, which is the reason she applied for it.6
Further, possession of a valid United States passport is a sufficient basis in
itself to terminate immigration proceedings. See Matter of Villanueva, 19 I&N
Dec. 101, 103 (BIA 1984) (finding that a valid United States passport issued
to an individual as a citizen of the United States constitutes conclusive proof
of that person’s citizenship unless the passport is void on its face). Thus, a
passport is clearly a “benefit” under the immigration laws, both as proof of
United States citizenship and as a means to enter and be employed in this
country.
We find by clear and convincing evidence that the respondent is
removable under section 237(a)(1)(A) as an alien who was inadmissible at the
time of her adjustment of status under section 212(a)(6)(C)(ii) of the Act.
Section 237(a)(1)(H) of the Act does not waive inadmissibility under
section 212(a)(6)(C)(ii). Nor has the respondent applied for or established her
eligibility for any other form of relief from removal. Accordingly, the DHS’s
appeal will be sustained, and the respondent will be ordered removed from the
United States.
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The respondent is ordered removed from the
United States to Mexico.