False Claim to US Citizenship: The Death Penalty of Immigration

Roger Williams

In January 1636, Roger Williams was banished from the Massachusetts Bay Colony. US immigration law has a similar fate for those who falsely claim to be a US citizen.  The Immigration and Nationality Act (INA) renders inadmissible or forbids entry into the United States any alien who falsely claims to be a US citizen.  It states

Any 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 chapter (including section 1324a of this title) or any other Federal or State law is inadmissible.  INA 212(a)(6)(ii).

Unlike other grounds of inadmissibility, there is no waiver available.  This means that the government cannot overlook and cannot forgive and admit an alien who falsely claims to be a US citizen even if the government wanted to.

On June 14, 2011, the US Court of Appeals for the Eighth Circuit in St. Paul, Minnesota handed down its decision in Sandoval v. Holder and wrestled to apply this statute to unaccompanied alien minors who falsely claim to be US citizens.

Alejandra Sandoval was born in Mexico in 1981.   As a small child, she illegally entered the United States with her family, settling in Minneapolis, Minnesota.  In January 1998, Sandoval returned to Mexico by air to visit relatives.  On January 10, 1998, Sandoval attempted to enter the United States at the Dallas/Ft. Worth Airport using the US birth certificate and Minnesota ID card of her US citizen sister.  Sandoval was 16 years old.  Sandoval’s deception was discovered by immigration at the airport, and she was returned to Mexico as an alien who has made a false claim to US citizenship. 

Sandoval then entered the US with the assistance of a smuggler and resumed her life.  Sandoval graduated from high school, got married, and gave birth to a child.  Her US citizen husband filed an immigrant petition, and Sandoval attempted to adjust status to lawful permanent resident (green card holder) when the incident at DFW came back to haunt her.  The Department of Homeland Security (DHS) denied Sandoval’s adjustment, and commenced removal proceedings alleging that she is an inadmissible alien who made a false claim to US citizenship.

Sandoval sought review of DHS’ inadmissibility determination before the Immigration Judge (IJ).  She argued that the false claim grounds of inadmissibility should not apply to her because she was an unaccompanied minor at the time of the false claim.  Analogizing a false claim to a capital crime, and citing Roper v. Simmons, 543 U.S. 551 (2005) Sandoval argued that the false claim grounds of inadmissibility should not apply to her because capital punishment is not meted out to minors who commit capital crimes.  The government argued that the false claim statute does not discriminate based on age, and should be applied equally to all aliens regardless of age.

The IJ was sympathetic to Sandoval, and calld the false claim permanent bar to admissibility the ‘immigration version of the death penalty’.  The IJ ruled that an unaccompanied minor cannot be rendered inadmissible for making a false claim to US citizenship because minors ‘lack sufficient maturity to understand the scope and ramifications of [this] misconduct.”  The IJ overturned the DHS’ inadmissibility determination and granted Sandoval’s adjustment.

DHS appealed the IJ’s decision to the Board of Immigration Appeals [BIA].  A single member of the BIA reversed the IJ’s decision and remanded the case back to the IJ. The BIA addresses Sandoval's legal argument with a single sentence of legal analysis.  “We find no legal authority or support for the Immigration Judge’s ‘bright line rule’ that persons under the age of 18 categorically lack maturity and mental capacity to falsely claim US citizenship”.

On remand from the BIA, the IJ denied Sandoval’s adjustment, holding that she is an alien who made a false claim to US citizenship.  Sandoval appealed to the BIA who summarily dismissed her appeal.  Sandoval then appealed the Eight Circuit Court of Appeal. 

The Eight Circuit blasts the BIA for failing to consider Sandoval’s argument and to articulate reasons why Sandoval’s argument was denied.  One sentence of legal analysis was not sufficient to satisfy the Court.  “Judicial deference is by no means a substitute for the Board’s duty to provide a reasoned, intelligible analysis for its decision.”  The Court remands or send Sandoval’s case back to the BIA with instructions to clarify the standards is uses in applying the false claim statute to unaccompanied minors and to articulate the reasons Sandoval deserves no relief under that standard.  This remand gives the BIA a third opportunity to adduce reasons the false claim statute should be applied to Sandoval. 


The Immigration Judge's analogy to capital punishment is apt.  Inadmissibility without waiver is the functional equivalent to banishment. Roger Williams illustrates that banishment is the second most severe punishment meted out by a court.  The most severe is death.  The rise of modern immigration laws has de-criminalized banishment and placed it squarely in the realm of civil immigration law.  The Sandoval court told the the BIA that is needs to use more than one sentence before banishing someone.

Expect a decision on the Sandoval remand upcoming months.  Given the level of criticism leveled by the Court, expect the BIA to issue a lengthily and well-reasoned decision.  Given the absence of law from the BIA in this area, the Sandoval decision could possibly be issued as a precedent decision.  Either way, expect more than one sentence out of the BIA.


Copyright 2011 Richard M. Green, All Rights Reserved

When Circuit Court Judges Disagree

Supreme Court Building

This week’s blog post is coming from San Diego, California and the 2011 American Immigration Lawyers Association Annual Conference.

On May 23, 2011 the U.S. Supreme Court granted a petition for a writ of certiorari in a Ninth Circuit case entitled Kawashima v. Holder. Click here to read the docket from the U.S. Supreme Court.  This case offers a glimpse into the interpretation of immigration and tax law and the functioning of the highest court in the land.

In 1997, Akio Kawashima, a citizen of Japan and lawful permanent resident, plead guilty to subscribing a false statement on a tax return in violation of 26 U.S.C. 7206(1).  This false statement caused a total tax loss to the government of $244,126.

 In 2001, the government commenced removal proceedings against Mr. Kawashima.  In the notice to appear before an Immigration Judge, the government charged Mr. Kawashima as an aggravated felon under the Immigration and Nationality Act (INA) because he is an alien that has been convicted of a crime that involves fraud or deceit where the loss to the victim is more than $10,000.

The government argued that subscribing a false statement on a tax return is a crime that involves fraud and deceit, and that the victim in this case is the US government. Citing a Third Circuit case entitled Ki Se Lee v. Ashcroft, Mr. Kawashima argued that the INA’s “fraud and deceit” aggravated felony definition did not apply to tax cases because the INA’s aggravated felony definition has a separate tax crime section.  Under the INA, an alien is an aggravated felon if they are convicted of tax evasion under 26 USC 7201.  Since Mr. Kawashima was not convicted of tax evasion, he is not an aggravated felon. 

The Immigration Judge and the Board of Immigration Appeals agreed with the government, and the Ninth Circuit in San Francisco, California dismissed Mr. Kawashima’s petition for review, agreeing that there is no reason to exclude tax crimes from the “fraud and deceit” definition of an aggravated felony.

This decision has created a split in the circuits.  Lower courts are bound to follow the decisions of higher courts.  Under the present state of the law, geography plays a factor in the outcome of a deportation case involving subscribing a false statement on a tax return.  An individual who is placed into removal proceedings in the Third Circuit (Delaware, New Jersey, Pennsylvania, and the Virgin Islands) is not an aggravated felon.  An individual in removal proceedings in the nine western states that compose the jurisdiction of the Ninth Circuit Court of Appeal is an aggravated felon.  The US Supreme Court has stepped in to resolve the split in the circuits and give a ruling on the issue that binds all courts across the entire country.

How will the Supreme Court rule on this case?  It’s difficult to say.  On the one hand, some say that the Ninth Circuit Court of Appeal is the most reversed court of appeal in the United States.  On the other hand, one Third Circuit justice on the Ki See Lee panel dissented from the majority opinion.  This justice thought subscribing a false tax return was a “fraud and deceit” aggravated felony that should result in deportation.  The dissenter was Samuel Alito.  Expect oral argument in the fall and a decision next spring.

Copyright 2011 Richard M. Green, All Rights Reserved

The Appeal's in the Mail!

If an appeal of an order of removal arrives at the Board of Immigration Appeals (BIA) a day late due to an error made by the post office, should the alien be deported?  That is the question in Irigoyen-Briones v. Holder, a recent decision from U.S. Court of Appeals for the Ninth Circuit in San Francisco.

On December 18, 2006, Mr. Irigoyen-Briones was ordered deported by an Immigration Judge (IJ).  At the conclusion of the deportation hearing, Mr. Irigoyen-Briones was instructed that if he wished to appeal the IJ’s decision, his notice of appeal must be filed with the Board of Immigration Appeals in Virginia in 30 days.  This means that Mr. Irigoyen-Briones’ paper notice of appeal must physically arrive at the BIA’s office in Falls Church, Virginia by January 17, 2007.  If the notice of appeal does not arrive by the proscribed date, Mr. Irigoyen-Briones’ order of deportation becomes final.

Following this hearing, Mr. Irigoyen-Briones consulted with and retained an attorney.  The attorney went to the Immigration Court to review the record of the deportation case and conducted legal research.  On January 16, 2007, the attorney mailed the notice of appeal to the BIA using the postal service’s express mail overnight delivery service.  The BIA rejected the Irigoyen-Briones’s appeal because the postal service delivered the notice of appeal on January 18, 2007, one day late.  Irigoyen-Briones appealed the BIA’s decision to reject his appeal to the Ninth Circuit Court of Appeal.

BIA appeals arriving one day late due to an error made by an overnight delivery service has been the subject of a fair amount of litigation.  In 2005, the Ninth Circuit and the Second Circuit Courts of Appeal reversed the BIA’s decision to reject these appeals, ruling that the principles of equity or fundamental fairness apply to appeals that arrive at the BIA one day late due to an error outside the control of the alien.  Click here and here to read those decisions.  In 2006, the BIA held that it does not have the jurisdiction or the authority to accept a late filed appeal.  The BIA held that the statute governing the time and process for filing an appeal does not permit the BIA to accept a late appeal no matter whose fault it is that the appeal arrived late.  Click here to read that decision in a pdf format.

The BIA advanced this argument in Irigoyen-Briones, and the court was unimpressed.  The court held that the statute governing BIA appeals is not jurisdictional because Congress did not limit the authority of the BIA to accept appeals, and the BIA’s regulation does not state that it considers the regulation jurisdictional.  The court observed that the statute governing the manner of appeals simply states that the BIA may set regulations governing the acceptance of appeals. 

The BIA also argued that it has an interest in the fair administration of justice by strictly enforcing its 30 day deadline.  The court dismissed this argument too, holding that solo practitioners and not large law firms typically litigate immigration appeals.  Thirty days is not a long time to prepare an appeal, and that the alien should not bear so high a price (deportation) for an error outside their control.  The court also observes that the BIA controls the manner the acceptance of appeals, and that the BIA is free to adopt filing methods that do not rely on papersuch as electronic filing.   The alien should be assured that when he or she exercises reasonable diligence by depositing a notice of appeal with an overnight delivery service on day 29, that the BIA will accept the appeal even if it arrives on day 31.

Finally, the BIA argued that it does not have a “mailbox rule” or postmarked deadline.  A mailbox rule allows an individual to comply with a deadline by ensuring that the post office postmarks their application by the proscribed date.  The court dismisses this argument saying that Irigoyen-Briones does not argue that the BIA has a mailbox rule.  Irigoyen-Briones argues that it is fundamentally unfair to be punished with deportation for an error outside of his control.

The court reversed its decision to reject the Irigoyen-Briones appeal and remanded it to the BIA to either accept the appeal or find another reason to reject it. The lesson to be learned from this case is that the immigration agencies do not think that the principles of equity apply to them.  They do not consider what is fair and what is right in its decision-making process.  They are happy to strictly adhere to their self authored rules, and are willing to transfer the risk of late delivery on the back of the applicant.

Copyright 2011 Richard M. Green, All Rights Reserved