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Tuesday, June 7, 2016

How to address a false US Passport

I had a colleague send me a question recently, and it is worth posting the an analysis of the problem:

Facts: Client is an adoptive child of a US citizen. A travel situation came up where she needed a US passport. We sent her to the passport office and filed an N600.

She was denied for the passport because turns out she did not become an LPR until she was 19. We sent a letter withdrawing her N-600, and started work on an N400. Later, we received another call from the passport agency saying that they would issue her the US passport. The passport was then approved, and we didn't think anything more of it.

Fast forward two months, we just received a denial from USCIS for the N-600. We are at a bit of a loss. Client has already used passport.

If client returns to the US, surrenders the passport to DOS, and files an N400, do you think an argument can successfully be made that she in good faith believed she had acquired US citizenship, or do you think she will be permanently barred?


So here is the basic rule of thumb:

1. If you supplied the correct information to DOS and
2. Dept. of State issued you a passport based on that information and
3. You reasonably relied on that passport to travel, THEN
4. You have not broken any laws if they later withdraw the passport and inform you that you do not have citizenship

The problem arises as to why they gave you the passport in the first place. It is well established law that an LPR child (under 18) must reside with and receive principal support from a USC parent, in the US, to obtain citizenship automatically. See 8 CFR 320.2. Generally, they should have spent at least one year here with their parent in order to prevent RFE’s regarding the degree of support or care (i.e. less than 6 months, the child was receiving primary care from someone else for that year). That’s not a hard-and-fast rule, but a good practice tip.

If she knew she did not meet the criteria above, than she could arguably be held to have violated INA 237(a)(3)(D) -- fraudulent claim of United States Citizenship to derive a benefit under State of Federal law. Here, she would not be an arriving alien, but rather one who was hear legally and just violated the rules. As long as there was no willful or knowing intent, she should be able to avoid a 237 charge.

However...if she re-enters using the passport, then INA 212(a)(6)(C) applies (false claim to USC when entering the US). The key to a fraud/willful misrep is just that – it has to be knowing and intended.

Does she still have her old passport with the I551 stamp? If so, have her come back using that. If her citizenship was revoked on error by the US, then she would resume her LPR status. Use that status to re-enter to avoid a 212 charge.

You also need to get all documentation from the “passport agency” as to how they submitted the documents, and who actually approved the application. Additionally, how was it denied once and then magically re-approved? You need a thorough understanding of that process. This sounds like some kind of Notario hookey-pookey stuff on the part of the passport agency.

Having said that – you are in a rather interesting situation. The Department of State is a separate agency, wholly distinct from USCIS. A denial of the N600 does not automatically deny the passport. However, her knowledge that she does not qualify would make her relying on that passport to pass CBP a fraudulent act – not for DOS (apparently they still believe it is valid), but rather for USCIS. She can’t use that to enter as a citizen.

Do you have a question about immigration law? Give us a call! 703-402-2723 or admin@hanoverlawpc.com

Hanover Law, PC
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Fairfax, VA 22031
Sean R. Hanover, Esq.
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