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