Cite as 25 I&N Dec. 40 (BIA 2009) Interim Decision #3647

1 The Immigration Judge did, however, find that the respondent was inadmissible at

the time of her adjustment of status under section 212(a)(6)(C)(i) of the Act, as an alien

who sought to procure a United States passport by fraud or willful misrepresentation of

a material fact. He also granted her request for a waiver of inadmissibility under

section 237(a)(1)(H) of the Act, which is available to waive the grounds of inadmissibility

under section 212(a)(6)(C)(i), but not under section 212(a)(6)(C)(ii).

40

Matter of Olga BARCENAS-BARRERA, Respondent

File A093 086 418 - Houston, Texas

Decided June 19, 2009

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An alien who willfully and knowingly makes a false representation of birth in

the United States on a passport application is inadmissible under section 212(a)(6)(C)(ii)

of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii) (2006), for making

a false representation of United States citizenship.

(2) The respondent, who was convicted of violating 18 U.S.C. § 1542 (2006) for

falsely representing that she was born in the United States on an application for a

passport, is removable under section 237(a)(1)(A) of the Act, 8 U.S.C. § 1227(a)(1)(A)

(2006), as an alien who was inadmissible at the time of her adjustment of status under

section 212(a)(6)(C)(ii) of the Act.

FOR RESPONDENT: Charissee L. Garza, Esquire, Bellaire, Texas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Merilee Fong, Assistant Chief

Counsel

BEFORE: Board Panel: GRANT, MILLER, and MALPHRUS, Board Members.

MALPHRUS, Board Member:

In a decision dated March 29, 2007, an Immigration Judge found that

the respondent is not removable under section 237(a)(1)(A) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as an

alien who was inadmissible at the time of her adjustment of status under

section 212(a)(6)(C)(ii) of the Act, 8 U.S.C. § 1182(a)(6)(C)(ii) (2006),

because she had not falsely represented herself to be a United States citizen.1
Cite as 25 I&N Dec. 40 (BIA 2009) Interim Decision #3647

2 The Secretary of State has the authority to issue passports, which has been delegated to

selected agents, including duly designated postal employees, who have the authority to

accept passport applications and administer oaths in connection with such applications. See

United States v. Salinas, 373 F.3d 161, 162 (1st Cir. 2004).

3

 According to 18 U.S.C. § 1542 (2006): 

 Whoever willfully and knowingly makes any false statement in an application for

passport with intent to induce or secure the issuance of a passport under the authority

of the United States, either for his own use or the use of another, contrary to the laws

regulating the issuance of passports or the rules prescribed pursuant to such laws . . .

 Shall be fined under this title, imprisoned . . . , or both.

41

The Department of Homeland Security (“DHS”) has appealed from the

Immigration Judge’s determination that the respondent was not inadmissible

under that section. The appeal will be sustained.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico. In March 2003, she

applied at a United States Post Office for a United States passport,2

 which

she intended to give her employer as proof that she had authorization to

work. She had previously provided her employer a false social security

card and birth certificate, which the employer had rejected as invalid. The

passport application, which she signed under oath, states that she was born in

“Edinburg, TX.” The respondent’s status was adjusted to that of a lawful

permanent resident in September 2004, based on her marriage to a naturalized

United States citizen.

In March 2006, the respondent was convicted of making a false statement

on an application for a passport in violation of 18 U.S.C. § 1542, for which she

was sentenced to 3 years’ probation.3

 Count one of the indictment to which

the respondent pled guilty states that on or about March 12, 2003, she:

willfully and knowingly made a false statement in an application for a passport with

intent to induce and secure for her own use the issuance of a passport under the

authority of the United States, contrary to the laws regulating the issuance of such

passports and the rules prescribed pursuant to such laws, in that in such application

the defendant stated that her place of birth was “Edinburg, TX,” which statement she

knew to be false.

The record contains a copy of page 3 of the respondent’s passport

application, which lists her place of birth as “Edinburg, TX.” Immediately

above the respondent’s signature, the application includes a warning that it
Cite as 25 I&N Dec. 40 (BIA 2009) Interim Decision #3647

42

should not be signed until requested to do so by the person administering the

oath, as well as the following affirmation:

I have not, since acquiring United States citizenship, performed any of the acts listed

under “Acts or Conditions” on the reverse of this application form (unless explanatory

statement is attached). I solemnly swear (or affirm) that the statements made on this

application are true and the photograph attached is a true likeness of me.

(Emphasis added.)

II. ANALYSIS

The DHS argues that clear and convincing evidence establishes that

the respondent is removable under section 237(a)(1)(A) of the Act because

she was inadmissible at the time of her adjustment of status under

section 212(a)(6)(C)(ii). With a limited exception not applicable in this case,

that section provides for the inadmissibility of “[a]ny 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 Act (including

section 274A) or any other Federal or State law.” Section 212(a)(6)(C)(ii) of

the Act.

We agree with the DHS that the respondent was inadmissible under

section 212(a)(6)(C)(ii) of the Act at the time of her adjustment of status,

because the record contains clear and convincing evidence establishing that

she falsely represented herself to be a United States citizen for the purpose of

obtaining a benefit under the Act or any other Federal or State law. This

provision is broadly defined and encompasses the respondent’s representation

on her passport application that she was born in Texas. It is undisputed that

the respondent signed the application, and the Immigration Judge found that

she willfully misrepresented on the application that she was born in Texas. As

noted above, by signing the passport application the respondent affirmed that

she had “acquir[ed] United States citizenship.”

Moreover, the respondent’s conviction establishes that she willfully and

knowingly provided the false information regarding her place of birth on

the passport application. See, e.g., United States v. George, 386 F.3d 383,

389 (2d Cir. 2004) (holding that a conviction under 18 U.S.C. § 1542 requires

that a defendant has provided in a passport application information that he or

she knows to be false); United States v. Suarez-Rosario, 237 F.3d 1164, 1167

(9th Cir. 2001) (stating that “under the terms of 18 U.S.C. § 1542, the

government must prove that the defendant made a willful and knowing false

statement in an application for a passport or made a willful and knowing use

of a passport secured by a false statement”). The fact that the respondent pled
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4 We recognize that in United States v. Karaouni, 379 F.3d 1139 (9th Cir. 2004), the

United States Court of Appeals for the Ninth Circuit reversed a defendant’s criminal

conviction for making a false claim to United States citizenship under 18 U.S.C. § 911,

where the sole evidence was that he checked a box on an employment form indicating that

he was a “citizen or national of the United States.” However, Karaouni is distinguishable

from this case, in part because it involved a criminal statute that carries the higher burden

of proof of guilt beyond a reasonable doubt. See Theodros v. Gonzales, 490 F.3d 396,

401 n.7 (5th Cir. 2007).

5 We note that a person born in the United States is both a citizen and national of the

United States at birth unless the individual is not “subject to the jurisdiction” of the

United States. Section 301(a) of the Act, 8 U.S.C. § 1401(a) (2006). This limited exception

refers generally to individuals born to foreign diplomats or to enemies within the

United States during a hostile occupation of part of the territory of the United States.

United States v. Wong Kim Ark, 169 U.S. 649, 473-74 (1898). There is no basis to include

the respondent within this very narrow group, and even if there were, such an individual is

not a citizen or national and is therefore not eligible to receive a United States passport. See

22 C.F.R. §§ 51.1(l), 51.2(a) (providing that a passport may be issued only to a United States

citizen or a noncitizen national).

43

guilty to violating 18 U.S.C. § 1542 precludes her from claiming that she did

not knowingly submit false information to obtain a passport. See Rodriguez

v. Gonzales, 451 F.3d 60, 65 (2d Cir. 2006) (determining that an alien who

pled guilty to a violation of 18 U.S.C. § 1542 was inadmissible under

section 212(a)(6)(C)(ii) of the Act and was therefore precluded from receiving

adjustment of status); see also Pichardo v. INS, 216 F.3d 1198, 1201 (9th Cir.

2000) (holding that a conviction under 18 U.S.C. § 911 for making a false

claim of United States citizenship established an independent ground for the

alien’s inadmissibility under section 212(a)(6)(C)(ii) of the Act).4

We disagree with the Immigration Judge’s conclusion that the respondent’s

false representation on a passport application that she was born in Texas does

not amount to a claim to be a United States citizen because a noncitizen

national can apply for and receive a passport. While a national may be eligible

for a passport, see 22 C.F.R. §§ 51.1(l), 51.2(a) (2009), the respondent never

claimed to be a “national,” a term that has historically “referred only to

noncitizens born in territories of the United States.” Fernandez v. Keisler,

502 F.3d 337, 349 (4th Cir. 2007); see also Matter of Navas-Acosta, 23 I&N

Dec. 586, 587 (BIA 2003). See generally sections 101(a)(22), 308 of the Act,

8 U.S.C. §§ 1101(a)(22), 1408 (2006). The respondent claimed to have been

born in Texas, not in a territory. The Fourteenth Amendment to the

United States Constitution provides that “[a]ll persons born or naturalized in

the United States, and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside.”5

 Therefore the
Cite as 25 I&N Dec. 40 (BIA 2009) Interim Decision #3647

6 Section 212(a)(6)(C)(ii) specifically contemplates including as a “benefit” under the Act

those benefits available pursuant to section 274A of the Act, 8 U.S.C. § 1324a (2006), which

relates to alien employment.

44

respondent’s statement on her passport application that she was born in Texas

would not be consistent with a claim to be a noncitizen national. 

Section 212(a)(6)(C)(ii) of the Act applies to misrepresentations committed

for any purpose or benefit under the Act or any other Federal or State law.

Obtaining a United States passport is clearly a benefit within the scope of this

section. A passport affords the bearer the benefit of being able to leave and

enter the United States. See Jamieson v. Gonzales, 424 F.3d 765, 768 (8th Cir.

2005) (holding that obtaining entry to the United States by claiming to be a

citizen of this country is a “benefit” under the Act); cf. section 215(b) of the

Act, 8 U.S.C. § 1185(b) (2006) (requiring a United States citizen to have a

valid passport to depart from or enter the United States unless otherwise

provided). A United States passport would also have allowed the respondent

to maintain employment in this country, which is the reason she applied for it.6

Further, possession of a valid United States passport is a sufficient basis in

itself to terminate immigration proceedings. See Matter of Villanueva, 19 I&N

Dec. 101, 103 (BIA 1984) (finding that a valid United States passport issued

to an individual as a citizen of the United States constitutes conclusive proof

of that person’s citizenship unless the passport is void on its face). Thus, a

passport is clearly a “benefit” under the immigration laws, both as proof of

United States citizenship and as a means to enter and be employed in this

country.

We find by clear and convincing evidence that the respondent is

removable under section 237(a)(1)(A) as an alien who was inadmissible at the

time of her adjustment of status under section 212(a)(6)(C)(ii) of the Act.

Section 237(a)(1)(H) of the Act does not waive inadmissibility under

section 212(a)(6)(C)(ii). Nor has the respondent applied for or established her

eligibility for any other form of relief from removal. Accordingly, the DHS’s

appeal will be sustained, and the respondent will be ordered removed from the

United States.

ORDER: The appeal of the Department of Homeland Security is sustained.

FURTHER ORDER: The respondent is ordered removed from the

United States to Mexico.