## Facts

- Olga Barcenas-Barrera, a native and citizen of Mexico, was unlawfully present and working in the United States.
- After an employer rejected her false documents, she applied at a U.S. Post Office for a U.S. passport to use as proof of work authorization.
- On the passport application, signed under oath, she listed her birthplace as “Edinburg, Texas.”
- In 2004, she adjusted status to lawful permanent resident based on marriage to a naturalized U.S. citizen.
- In 2006, she was federally convicted under 18 U.S.C. § 1542 for willfully and knowingly making a false statement in a passport application by falsely claiming Texas birth.
- DHS charged her as removable under INA § 237(a)(1)(A) as inadmissible at adjustment under INA § 212(a)(6)(C)(i) (fraud or willful misrepresentation) and INA § 212(a)(6)(C)(ii) (false claim to U.S. citizenship).
- The Immigration Judge found inadmissibility under § 212(a)(6)(C)(i) and granted a waiver under INA § 237(a)(1)(H), but found no inadmissibility under § 212(a)(6)(C)(ii).
- DHS appealed the § 212(a)(6)(C)(ii) determination to the Board of Immigration Appeals.

## Issues

1. Whether an alien who willfully and knowingly lists a false U.S. place of birth on a U.S. passport application thereby makes a “false representation” of U.S. citizenship under INA § 212(a)(6)(C)(ii).
2. Whether a false U.S. birthplace claim on a passport application is an implicit claim of citizenship rather than a claim of noncitizen U.S. nationality.

## Decision

- The Board sustained DHS’s appeal and reversed the Immigration Judge’s conclusion on INA § 212(a)(6)(C)(ii).
- The Board held that willfully and knowingly claiming U.S. birth on a passport application constitutes a false representation of U.S. citizenship under INA § 212(a)(6)(C)(ii).
- The Board concluded the respondent was inadmissible at the time of adjustment under § 212(a)(6)(C)(ii) and therefore removable under INA § 237(a)(1)(A).

## Legal Principles

- A willful and knowing false representation of birth in the United States on a passport application is a false representation of U.S. citizenship for purposes of INA § 212(a)(6)(C)(ii).
- A false claim of citizenship under § 212(a)(6)(C)(ii) may be established through an implicit representation where the statement necessarily conveys citizenship in the context of the benefit sought.
- Because U.S. passports are issued based on nationality and, in ordinary operation, citizenship, a claimed U.S. birthplace on a passport application necessarily implies U.S. citizenship.
- The existence of U.S. nationality distinct from citizenship does not recharacterize a Texas-birth claim as a noncitizen-national claim where the applicant did not claim territorial birth or assert national-but-not-citizen status.
- A conviction under 18 U.S.C. § 1542 supports the willfulness and knowledge elements for a false claim analysis when it rests on the deliberate false U.S.-birth statement.
- Waiver authority that can excuse fraud or misrepresentation under INA § 212(a)(6)(C)(i) does not waive inadmissibility based on a false claim to U.S. citizenship under INA § 212(a)(6)(C)(ii).

## Conclusion

The Board held that intentionally listing a false U.S. birthplace on a passport application is an implicit false claim to U.S. citizenship under INA § 212(a)(6)(C)(ii), making the applicant inadmissible at adjustment and removable under INA § 237(a)(1)(A).


In re Barcenas-Barrera, 25 I. & N. Dec. 40 (B.I.A. 2009)