Reuben S. Seguritan

False Claim to Citizenship Bars Adjustment of Status

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Non-citizens must remember not to make any false U.S. citizenship claims for any purpose, whether to obtain a visa, enter the United States, find employment, apply for public benefits, to register for or vote in an election. A false U.S. citizenship claim carries with it serious consequences.


False representations of U.S. citizenship made in order to obtain any benefit under the Immigration and Nationality Act (INA) or any other Federal or State law would make the person open to deportation and a lifetime bar from returning to the United States.

The false claim issue arises most commonly when an alien fills out the I-9 (Employment Eligibility Verification) to gain employment, thereby attesting under penalty of perjury that he is a U.S. citizen.

In the Eighth Circuit case of Etenyi v. Holder, the alien was an applicant for adjustment of status on the basis of a petition filed by his U.S. citizen spouse. The USCIS denied his application stating that he could not be adjusted because he had falsely claimed on Form I-9 that he was a U.S. citizen when he applied for a job.

He was later placed in removal proceedings and was found removable by the immigration judge. He later appealed to the Board of Immigration Appeals (BIA), but the Board dismissed his appeal.

He argued before the Court of Appeals that the Form I-9 had been pre-populated and he did not notice the checked box asserting, under penalty of perjury, that he was a “citizen of the United States.” The Court, however, afforded deference to the immigration judge’s finding, rejecting his claim that he “failed to read the entire form and failed to note the box was checked.”

His testimony that he reviewed the other information on the form before signing it and the fact that he had a college-level education from an American university at the time he completed the form, led the immigration judge to reject his claim. The immigration judge’s finding, according to the Court, was supported by evidence.

The Court also rejected his argument that the DHS should present more than the Form I-9 to satisfy its burden of proof. The common defense that centered on the ambiguous nature of the attestation in the old version of the Form I-9 as to whether the alien represented himself to be a U.S. citizen or national is not applicable in this case since he signed the new version of the Form I-9.

The new Form I-9 separates the choices of U.S. citizen and non-citizen U.S. national. The Court ruled that no additional evidence was required.

In another case decided by the Court of Appeals for the Fourth Circuit, the alien used the identities of two American citizens to apply for jobs indicating on the Form I-9 that he was a U.S. citizen.

He argued before the Court that seeking private employment is not an immigration benefit within the meaning of the false claim bar. He also argued, among others, that the use of other identities did not constitute direct claims of citizenship.

The Court rejected his argument stating that Form I-9 was created for the purpose of verifying a prospective employee’s eligibility for employment and is aimed at preventing the employment of unauthorized aliens. Private employment is therefore considered a “benefit” under the INA.

As to his use of the identity of others in the Form I-9, the Court ruled that he was the one seeking employment and that it was him who attested in the Form I-90 that he was a U.S. citizen. The alien, in this case, was not allowed to adjust to permanent resident status.


(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at or call (212) 695-5281.)

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