Wednesday, July 20, 2011

The opinion in the recent case of Sandoval v. Holder, 2011 WL 2314728 (8 Cir., 2011) has raised two very interesting questions on the issue of  what constitutes a false claim to US citizenship, which once made is a permanent ground of inadmissibility to the US. This bar can never be waived.

            The first question is the age of capacity to commit fraud. The alien here was just sixteen when she showed her sister’s birth certificate in an attempt to enter the US from Mexico. The BIA held that she had made the false claim to US Citizenship and was forever barred.

            The Court of Appeals reversed and remanded the case to the BIA to decide whether a sixteen-year-old had the capacity to commit a fraud. It is important to note that at common law (which the BIA follows on matters involving fraud) it is impossible to commit a fraud before age seven. It is possible to commit a fraud from ages seven to fourteen, but there is a presumption against it. It is possible to commit a fraud from ages fourteen to twenty one, and there is a presumption of capability. 

             The second question on remand was whether the alien had “timely” retracted her claim when confronted by CBP at the port of entry. See 9FAM 40. 63 N4.6.

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