United States Court of Appeals For the Seventh Circuit
Immigration — false claim of citizenship
Possession of a false birth certificate at the time of entry is insufficient to support a holding that an alien falsely claimed citizenship to gain entry.
“Form I-213 simply states that Avila made application for entry into the United States by presenting a baptismal certificate given by friends. The Notice of Visa Cancellation similarly provides that Avila ‘attempted to enter into the United States from Mexico, afoot, via the San Ysidro Port of Entry presenting an entry document belonging to another. Subject was allowed to withdraw in lieu of exclusion proceedings and was returned to Mexico.’ The language of those forms is more reflective of § 1182(a)(6)(C)(i) which denies admissibility to any person who, by fraud or willfully misrepresenting a material fact, seeks to procure admission into the United States, rather than the § 1182(a)(6)(C)(ii) ground of inadmissibility for any person who falsely represents himself to be a citizen of the United States. The former ground can be waived, but the false representation of citizenship cannot be waived. See 8 U.S.C. §§ 1182(a)(6)(C)(iii), 1182(i). There is absolutely nothing in the forms indicating that the officials considered Avila’s conduct to constitute a false representation of citizenship.”
On Petitions for Review of an Order of the Board of Immigration Appeals, Rovner, J.