LAW-ABIDING “ILLEGAL ALIENS”: PAYING TAXES FOR THE CHANCE OF LEGAL IMMIGRATION STATUS, OR NOT? GISELI LEMAY* I. INTRODUCTION Some risk their lives crossing the borders of Mexico for a chance of a better life opportunity in the United States.1 Others have the privilege to enter the United Sates through the “front door.”2 Yet, once in the United States, they share a common ground: They have officially made it to the land of opportunity.3 Now, the question is: Should they live in the shadows or become law-abiding “illegal aliens”?4 Although there is a general misconception that unauthorized * Juris Doctor Candidate 2016, St. Thomas University School of Law, St. Thomas Law Review, Articles Editor; Bachelor of Science in Psychology and Management with concentration in Finance, University of Massachusetts Boston 2007. I want to thank my Executive Notes and Comments Editor, Aileen Gonzalez, and my Comments Editor, Alain Roman, for their tremendous support and editing assistance in preparation of this Comment. I also want to thank Professor Gilbert for her guidance and impeccable suggestions. I dedicate this Comment to my husband, Kevin LeMay, whose love, patience, and support inspire me daily. 1. See Jana Winter, Endless Wave of Illegal Immigrants Floods Rio Grande Valley, FOX NEWS (July 14, 2014), http://www.foxnews.com/us/2014/07/14/night-time-on-border-endless- wave-illegal-immigrants-floods-rio-grande-valley/ (stating that the Border Patrol vehicles are loaded with newly-arrived illegal immigrants, coming in throughout the evening and early morning hours of the day). 2. PHILIP MARTIN & ELIZABETH MIDGLEY, POPULATION REFERENCE BUREAU, IMMIGRATION: SHAPING AND RESHAPING AMERICA 5 (vol. 58, No. 2 June 2003), available at http://www.prb.org/source/58.2immigrshapingamerica.pdf; Philip Martin, US Immigration Patterns and Policies, COMPARATIVE IMMIGRATION AND INTEGRATION PROGRAM 1, 3 (Feb. 26, 2012), http://migrationfiles.ucdavis.edu/uploads/rs/files/2012/ciip/martin-immigration-patterns- policies.pdf. The reference to aliens who arrive in the United States “through the front door” means that they arrive through legal means. Martin, supra. 3. See Donald Lambro, Pursuing the Immigrants’ Dream in the Land of Opportunity, TOWNHALL.COM (July 18, 2014), http://townhall.com/columnists/donaldlambro/2014/07/18/pursuing-the-immigrants-dream-in-the- land-of-opportunity-n1863244/page/full (“Ronald Reagan said he once got a letter from a man who said ‘you can go live in Turkey, but you can’t become a Turk. You can go to Japan, but you cannot become Japanese – or Germany or France. . . . But he said anyone from any corner of the world can come to America and become an American.’”). 4. See discussion infra Part II.B; see also STEPHEN H. LEGOMSKY & CRISTINA M. RODRIGUEZ, IMMIGRATION AND REFUGEE LAW AND POLICY 1169–70 (Robert C. Clark et al. eds., 6th ed. 2015) (discussing how the term “illegal aliens” has a negative connotation and yet, the word “alien” is a correct legal term). 309 310 ST. THOMAS LAW REVIEW [Vol. 27 immigrants5 do not pay taxes and take advantage of the United States welfare system, the United States collected an estimated total of $10.6 billion in state and local taxes from unauthorized immigrants in 2010.6 The Center for American Progress suggests that immigration reform would add $109 billion in combined government taxes over a ten-year period.7 Moreover, immigrants’ gain of legal status is likely to increase the overall Social Security trust fund to approximately $606 billion.8 The Center for American Progress further states that immigration reform would raise enough capital to fund retirement benefits of approximately 2.4 million native-born Americans.9 While the government, by means of Internal Revenue Service (“IRS”) regulations, requires all citizens and noncitizens, including unauthorized immigrants to file tax returns, many immigrants are hesitant to announce their presence in the United States to federal agencies.10 Unauthorized immigrants fear their employers might find out they use false social security numbers (“SSNs”), or that the federal government would find their whereabouts in the United States.11 However, it is important to note the IRS has records of each tax return filed with an Individual Taxpayer Identification Number12 (“ITIN”)—meaning that the taxpayer does not have a SSN, which places the IRS on notice the person filing the taxes is likely to be unauthorized to work.13 The tension between the IRS regulations requiring unauthorized 5. See LEGOMSKY & RODRIGUEZ, supra note 4, at 1170. The term unauthorized immigrants and undocumented immigrants (or workers) refer to the same group of non-U.S. citizens who are present in the United States without lawful immigration status. Id. 6. See INST. ON TAX’N AND ECON. POL’Y, UNDOCUMENTED IMMIGRANTS’ STATE AND LOCAL TAX CONTRIBUTIONS 1 (July 2013), available at http://www.itep.org/pdf/undocumentedtaxes.pdf (stating that these statistics include $1.2 billion in personal income taxes and $1.2 billion in property taxes; and that sales and excise taxes account for 77 percent of tax contributions, a total of more than $8 billion). 7. See Amy Grenier, Undocumented Immigrants Contribute Billions in Taxes, AM. IMMIGRATIONCOUNCIL (Apr. 15, 2014), available at http://immigrationimpact.com/2014/04/15/undocumented-immigrants-contribute-billions-in- taxes/ (referring to the Institute on Taxation and Economic Policy to the statistics on undocumented immigrant tax contribution). 8. See id. 9. See id. 10. Daisy Hernández, Tax Day Puts Illegal Immigrants in a Special Bind, N.Y. TIMES, (Apr. 15 2003), http://www.nytimes.com/2003/04/15/nyregion/tax-day-puts-illegal-immigrants-in-a- special-bind.html. 11. Id. 12. See discussion infra Part V. 13. See Cynthia Blum, Rethinking Tax Compliance of Unauthorized Workers After Immigration Reform, 21 GEO. IMMIGR. L.J. 595, 598 (2007). 200x] LAW-ABIDING “ILLEGAL ALIENS” 311 immigrants to file taxes, and the United States Department of Homeland Security (“DHS”) prohibiting these same individuals from lawfully working in the United States, is an ongoing controversy in this country.14 The DHS, by means of its Immigration and Nationality Act (“INA”) regulations, penalizes unauthorized immigrants who falsely claim to be United States citizens for purposes of obtaining employment, irrespective of whether the aliens filed and paid their taxes.15 This Comment will focus on the inconsistencies between the IRS and the DHS, and suggest a proposal for amending the INA.16 Part I of this Comment introduced the overall inconsistency amongst the government agencies.17 Part II focuses on the experiences of some unauthorized immigrants and the situations they face as unauthorized immigrants abiding by the law.18 Part III introduces relevant background information useful to the understanding of who the immigrants are, what it means to be an inadmissible “alien,” and the type of waivers for which they may qualify.19 Part IV provides a brief description of the relevant immigration acts Congress enacted, and what misrepresentation on I-9 Employment Eligibility Verification Form (“Form I-9”) means to the DHS and to immigrants.20 Following this brief explanation on Form I-9, Part V introduces the ITIN, and the issues it raises.21 Part VI considers the undocumented workers’ tax contributions to the United States Government.22 Part VII discusses recent proposals and their drawbacks.23 Part VIII suggests a proposal to amend the INA and provide additional relief to certain undocumented workers who paid income taxes and are currently facing deportation.24 Part IX concludes this Comment.25 14. See discussion infra Part V. 15. See Immigration and Nationality Act § 212(a)(6)(C)(ii) (I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I) (2012). 16. See discussion infra Part VIII. 17. See discussion supra Part I. 18. See discussion infra Part II. 19. See discussion infra Part III. 20. See discussion infra Part IV. 21. See discussion infra Part V. 22. See discussion infra Part VI. 23. See discussion infra Part VII. 24. See discussion infra Part VIII. 25. See discussion infra Part IX. 312 ST. THOMAS LAW REVIEW [Vol. 27 II. IMMIGRANT LIFE IN THE UNITED STATES A. IN THROUGH THE “FRONT DOOR” On January 22, 1996, Mr. Ferrans, a citizen of Colombia, entered the United States through the “front door.”26 Mr. Ferrans remained in the United States beyond the expiration of his visa, which placed him in unlawful status as of July 22, 1996.27 While he remained in the United States past his visa expiration, Mr. Ferrans applied for a job at Jiffy Lube.28 Because Mr. Ferrans did not have a valid SSN or work authorization, he was unable to truthfully complete the required Form I-9.29 As a result, Mr. Ferrans completed the form indicating he was a “citizen or national of the United States,” thus making a false representation of United States citizenship.30 Approximately two years after Mr. Ferrans applied for the job, he petitioned for adjustment of status to that of a permanent resident.31 During Mr. Ferrans’ interview with the United States Citizenship and Immigration Services (“USCIS”),32 he testified that he had falsely claimed to be a 26. See Ferrans v. Holder, 612 F.3d 528, 530 (6th Cir. 2010) (establishing that Mr. Ferrans entered the United States holding a B-2 visitor visa via the Miami port of entry); see also MARTIN & MIDGLEY, supra note 2, at 5 (stating that in 2001, “just over 1 million immigrants were admitted legally ‘through the front door,’ and more than one-half were already living in the United States when they gained legal immigrant status”). 27. Ferrans, 612 F.3d at 530; see 8 C.F.R. § 214.1(e) (2014) (“A nonimmigrant in the United States in a class defined in section 101(a)(15)(B) of the Act as a temporary visitor for pleasure . . . may not engage in any employment.”). Although Mr. Ferrans entered the United States legally holding a B-2 visitor visa and remained legally in the United States during the initial six months period, he did not have permission to obtain employment in the United States at any time. Ferrans, 612 F.3d at 530–32. 28. Ferrans, 612 F.3d at 531. 29. Id. at 530; see U.S. CITIZENSHIP & IMMIGRATION SERVS., DEP’T OF HOMELAND SEC., FORM I-9: INSTRUCTIONS FOR EMPLOYMENT ELIGIBILITY VERIFICATION 1 [hereinafter FORM I- 9], available at http://www.uscis.gov/files/form/I-9.pdf (last updated Mar. 8, 2013). The purpose of Form I-9 is for employers “to document verification of the identity and employment authorization of each new employee (both citizen or noncitizen) . . .to work in the United States.” FORM I-9, supra. 30. See Ferrans, 612 F.3d at 530−32. 31. Id. at 530; see also U.S. CITIZENSHIP AND IMMIGRATION SERVS, U.S. DEP’T OF HOMELAND SEC., ADJUSTMENT OF STATUS, http://www.uscis.gov/green-card/green-card- processes-and-procedures/adjustment-status (last updated July 14, 2015) [hereinafter ADJUSTMENT OF STATUS] (describing the different ways in which one can qualify and apply for adjustment of status in the United States). 32. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., U.S. DEP’T OF HOMELAND SEC., OUR HISTORY, http://www.uscis.gov/about-us/our-history (last updated May 25, 2011) [hereinafter USCIS: OUR HISTORY] (indicating that the Homeland Security Act of 2002 “dismantled” the former Immigration and Naturalization Service (“INS”) and formed the DHS with three agencies: 200x] LAW-ABIDING “ILLEGAL ALIENS” 313 United States citizen when he completed Form I-9 in connection with the employment application.33 On March 22, 2006, USCIS denied Mr. Ferrans’ petition for adjustment of status, finding Mr. Ferrans inadmissible to the United States and ineligible for adjustment of status pursuant to violation of section 212(a)(6)(C)(ii) of the INA.34 B. THE HARSH REALITY Although Mr. Ferrans entered the country through the “front door,” he endured the life of an unauthorized worker for several years.35 Nonetheless, Mr. Ferrans is among the large number of unauthorized immigrants in the United States who must comply with federal tax law and file their tax returns.36 Oscar and Marcella,37 a couple from Mexico, filed their tax returns for three years while living illegally in the United States.38 Oscar works as a busboy at a Manhattan local restaurant, and Marcella stays at home and raises their two children.39 Although Oscar receives a W-2 from his employer, he does not have a SSN.40 Oscar used a false SSN when he applied for his job, and he uses an ITIN for purposes of filing tax returns.41 One would wonder, why abide by the rules when you are an unauthorized immigrant and could get “caught” by ICE at any time?42 USCIS, Immigration and Customs Enforcement (“ICE”), and Customs and Border Protection (“CBP”)); see also U.S. DEP’T OF HOMELAND SEC., CREATION OF THE DEPARTMENT OF HOMELAND SECURITY, http://www.dhs.gov/creation-department-homeland-security (last updated July 13, 2015). 33. See Ferrans, 612 F.3d at 530. 34. Id. Mr. Ferrans received a notice stating that he was removable from the United States pursuant to § 237(a)(3)(D) of the INA because he had “falsely represented [himself] to be a citizen of the United States . . . .” Id. 35. See id. 36. See Aurora Almendral, Undocumented Immigrants Work to Come Out of the Fiscal Shadows, Pay Taxes, PUBLIC RADIO INT’L (Mar. 25, 2013, 12:00 PM), http://www.pri.org/stories/2013-03-25/undocumented-immigrants-work-come-out-fiscal- shadows-pay-taxes (discussing the ample and growing number of undocumented workers who resort to the ITIN to file their taxes, and highlighting the story of a Mexican couple who used ITIN to file their taxes, but had used false SSNs on their IRS forms). 37. See id. The couple did not disclose their last names because they remain undocumented immigrants. Id. 38. See id. 39. Id. 40. See id. 41. See id. See generally U.S. GOV’T ACCOUNTABILITY OFFICE, SUPPLEMENTAL SECURITY INCOME: WAGES REPORTED FOR RECIPIENTS SHOW INDICATIONS OF POSSIBLE SSN MISUSE 5 (2014) (noting that when an unauthorized worker uses another person’s name and SSN, the wages reported for that individual are posted to the true SSN holder’s account). 42. See generally U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, WHAT WE DO, 314 ST. THOMAS LAW REVIEW [Vol. 27 Similar to Oscar, a number of unauthorized immigrants are faced with this same question.43 Oscar and Marcella pay their taxes in hope that one day it will help them earn legal immigration status in the United States.44 Moreover, the couple is raising two children in this country and see that “Americans take taxes seriously,” and for that reason they should abide by the law.45 Other unauthorized immigrants choose not to use false SSNs; rather, they use ITINs to file their taxes.46 These workers are typically cash earners who work “under the table,” and yet, they estimate their income and pay taxes.47 Unfortunately for these cash earners, the IRS charges them self-employment tax, which is typically higher than the standard wage earners tax.48 German Tejeda, a tax preparer, explains these immigrants work for the local grocery stores, or restaurants, holding job positions as dishwashers, delivery drivers, domestic workers, and flower sellers.49 Nevertheless, while these workers are not technically self-employed, they must pay self-employment tax rates.50 III. BACKGROUND AND APPLICABLE LAW A. WHO ARE THE ALIENS? An “alien” is “[s]omeone who resides within the borders of a country but is not a citizen or subject of that country.”51 A person “who, by either birth or naturalization, is a member of a political community, owing allegiance to the community and being entitled to enjoy all its civil rights and protections[,]” is a citizen of that nation.52 Further, the Constitution provides, “[a]ll persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside.”53 As a citizen of the United States, a person has privileges and immunities of the http://www.ice.gov/overview (last visited Nov. 22, 2014) (providing an overview of ICE’s role as an immigration enforcement agency). 43. See Almendral, supra note 36. 44. Id. 45. Id. 46. Id. 47. Id. 48. Id. 49. See Almendral, supra note 36. 50. See id. According to Mr. Tejeda, the cash earners who file taxes using ITINs do not get refunds. Id. “[They] are paying into taxes. They’re not only paying, they’re paying double.” Id. 51. BLACK’S LAW DICTIONARY 87 (10th ed. 2014). 52. Id. at 298. 53. U.S. CONST. amend. XIV, § 1. 200x] LAW-ABIDING “ILLEGAL ALIENS” 315 laws of the country, and the right to vote and receive government benefits.54 However, as an alien, regardless of whether the person is here legally as a lawful permanent resident55 or not, he or she may be subject to deportation.56 Some permanent resident aliens may qualify to apply for United States citizenship.57 To qualify for citizenship, resident aliens must meet a required period of physical presence in the United States, must demonstrate good moral character, and must have lived in the United States for at least five years as permanent resident aliens or three years if married to a United States citizen.58 It is in the resident aliens’ best interest to apply to become United States citizens as soon as they become eligible, as they are subject to removability at any time if any of the grounds for removal are met.59 There are a number of inadmissibility and deportability grounds that can subject a resident or nonresident alien to be removed from the United States.60 An alien may be placed in removal proceedings when he or she is present in the United States or seeks admission to the United States.61 An example of an alien currently present in the United States who may be placed in removal proceedings is an individual who is admitted into the United States on a visa, such as a tourist or student visa62 and overstays that 54. Id. 55. See 8 C.F.R § 245a.10 (2014). “Lawful Permanent Resident (LPR) means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” Id. 56. Alison Leal Parker, In Through the Out Door? Retaining Judicial Review for Deported Lawful Permanent Resident Aliens, 101 COLUM. L. REV. 605, 615 (2001). 57. See 8 U.S.C. § 1427(a) (2012). 58. See id. §§ 1101(f) (defining how a determination of lack of good moral character is made), 1427(a), 1430(a); 8 C.F.R. §316.10(b) (2014) (listing offenses that show a lack of good moral character). Good moral character is a broad category that precludes a number of different offenses in which the Department of Homeland Security or the court considers when determining eligibility for naturalization or residency. 8 U.S.C. § 1101(f); 8 C.F.R. § 316.10(b). 59. See 8 U.S.C. §§ 1227 (illustrating several reasons for an alien to be deported), 1427(a), 1451 (stating that naturalization can be revoked for an alien who is found to have concealed material evidence in his or her naturalization process); see also United States v. Salama, 891 F. Supp. 2d 1132, 1148 (2012). There is a five-year period in which the Department of Homeland Security reviews a person’s good moral character preceding the filling of his naturalization certificate. 8 U.S.C. § 1427(a). Mr. Salama was placed in immigration proceedings to revoke his naturalization certificate because of lack of good moral character when he was of convicted of four counts of insurance fraud committed during the five year statutory period preceding his application for naturalization. Salama, 891 F. Supp. 2d at 1135–37. 60. See 8 U.S.C. § 1227(a) (describing who is a deportable alien and reasons for deportation); see also id. § 1182(a) (2012) (illustrating grounds for denying admissibility to the United States). 61. See id. §§ 1182, 1227. 62. See id. § 1101(a)(15)(B). 316 ST. THOMAS LAW REVIEW [Vol. 27 visa.63 For purposes of the INA, when an alien currently present in the United States applies to “adjust” his or her status to that of a lawful permanent resident, he or she is seeking admission to the United States, even though he or she is already present in the country.64 Thus, if an alien is inadmissible, he or she may be ineligible from adjusting his or her status to that of a permanent resident.65 B. INADMISSIBLE ALIENS Out of concern for increased fraudulent activity and lenient access to various federal benefits, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”).66 As part of the IIRIRA enactment, Congress added new grounds of inadmissibility to section 212 of the INA.67 One of the established grounds of inadmissibility refers to aliens who make false representations of United States citizenship.68 While the Attorney General may have discretion to waive certain grounds of inadmissibility, a waiver for an alien found to be inadmissible for false representation as a United States citizen is not available.69 Under Title 8 of the United States Code, § 1182(a)(6)(C)(ii)(I), an alien who falsely represents himself or herself to be a United States citizen for any purpose or benefit is inadmissible to the United States.70 The terms 63. See, e.g., State v. Sinclair, 995 So. 2d 621 (Fla. Dist. Ct. App. 2008). Defendant was admitted into the United States from Nicaragua on a student visa and overstayed the visa, meaning that he remained in the United States past his visa expiration date. Id. at 622. In addition to overstaying his visa, defendant was charged with burglary with assault and sexual battery. Id. 64. See ADJUSTMENT OF STATUS, supra note 31. 65. 8 U.S.C. § 1182(a); see Jill E. Family, Beyond Decisional Independence: Uncovering Contributors to the Immigration Adjudication Crisis, 59 U. KAN. L. REV. 541, 556 (2011) (stating potential relief from deportation is limited once deportability grounds have been established). 66. See Lonnie E. Griffith, Jr., Annotation, Application of Inadmissibility Provision Relating to False Claims of United States Citizenship, 8 U.S.C.A. § 1182(a)(6)(C)(ii), 77 A.L.R. FED. 2D 131, 2 (2014). See generally Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended at 8 U.S.C. § 1324a (2006)). 67. See Visas: Grounds of Ineligibility 62 Fed. Reg. 248, 67564 (Dec. 29, 1997) (codified at 22 C.F.R. § 40). 68. 8 U.S.C. § 1182(a)(6)(C)(ii)(I). 69. Alfaro v. Att’y Gen. U.S., 523 Fed. App’x. 908, 910 (3d Cir. 2013). 70. Immigration and Nationality Act § 212(a)(6)(C)(ii)(I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I); see U.S. CITIZENSHIP AND IMMIGRATION SERVS., U.S. DEP’T OF HOMELAND SEC., IMMIGRATION AND NATIONALITY ACT, http://www.uscis.gov/laws/immigration-and-nationality- act (last updated Sept. 10, 2013) [hereinafter INA AND IMMIGRATION SERVICES]. Title 8 of the United States Code (“U.S.C.”) deals with “Aliens and Nationality.” INA AND IMMIGRATION SERVICES, supra. In 1952, the McCarran-Walter Act developed the INA. Id. The INA is 200x] LAW-ABIDING “ILLEGAL ALIENS” 317 “purpose or benefit” include an individual’s application for private employment.71 With respect to application for private employment, the USCIS requires that employers complete and retain a Form I-9 for each employee hired to work in the United States.72 An alien who falsely claims to be a citizen of the United States when completing Form I-9 for purposes of obtaining private employment73 is considered to have violated § 1182(a)(6)(C)(ii)(I).74 Does checking “citizen or national” of the United States on Form I-9 constitute a false representation of United States citizenship?75 The court in Crocock v. Holder certainly believed so.76 Mr. Crocock, a native and citizen of Ireland, believed he was a “national” when he checked the “citizen or national” box on the Form I-9 he completed in connection with an application for employment.77 During immigration proceedings, Mr. Crocock admitted he had claimed to be a United States citizen to obtain his “dream job.”78 Because Mr. Crocock did not meet his burden of demonstrating that he did not represent himself as a United States citizen, the court denied his petition for review.79 Regrettably, Mr. Crocock, like comprised of a combined and reorganized structure of the immigration law that is located separately from the United States Code but encompasses the same information. Id. For example, Title 8, Section 1182(a)(6)(C)(ii)(I), is also contained in INA Section 212(a)(6)(C)(ii)(I). Immigration and Nationality Act § 212(a)(6)(C)(ii)(I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I). 71. See Ferrans v. Holder, 612 F.3d 528, 533 (6th Cir. 2010) (holding that a false representation of citizenship for the purpose of obtaining private employment falls within the meaning of “purpose or benefit” under section 212(a)(6)(C)(ii)(I) of the INA). 72. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., U.S. DEP’T OF HOMELAND SEC., EMPLOYERS MUST USE REVISED FORM I-9, EMPLOYMENT ELIGIBILITY VERIFICATION, http://www.uscis.gov/news/public-releases-topic/employment-verification/employers-must-use- revised-form-i-9-employment-eligibility-verification (last updated May 7, 2013). 73. See, e.g., Griffith, supra note 66, at 18. Other false claims of United States citizenship for purposes of inadmissibility under INA § 212(a)(6)(C)(ii)(I) include: false statements or information provided to gain entry into the United States, or provided to immigration, border, or custom officers or inspectors; the presentation of a false passport or statements or information provided on a customs declaration form; false statement as to birthplace; false claims of citizenship in passport applications or documentation supporting passport applications; false statements of citizenship related to the acquisition or use of a birth certificate, Social Security card, or driver’s license; false citizenship statement on a voting registration form; false statement in connection with a loan application under the Small Business Administration Act; and false statement in application for admission to a private university. Id. at 2. 74. Fernandez Diaz v. Holder, 523 F. App’x 372, 376 (6th Cir. 2013). 75. See 8 U.S.C. § 1182(a)(6)(C)(ii). 76. Crocock v. Holder, 670 F.3d 400, 403–04 (2d Cir. 2012). 77. See id. at 402–03. Mr. Crocock entered the United States in January 2004 on a non- immigrant student visa to complete a paramedic certification program and applied for a position with the fire department after his student visa and work authorization had expired. Id. at 401–02. 78. Id. at 403. 79. Id. 318 ST. THOMAS LAW REVIEW [Vol. 27 Mr. Ferrans, is one of several unauthorized immigrants who was found to have claimed to be a citizen of the United States to obtain the benefit of employment.80 C. WAIVERS Even if a permanent resident alien or a non-resident alien is faced with inadmissibility or removal proceedings, he or she may apply for relief in form of a waiver.81 There are two types of waivers: waiver for inadmissibility and waiver for deportability.82 For example, an alien, who is deemed inadmissible or deportable for misrepresentation, may be granted a waiver under section 212(i) of the INA for a charge of inadmissibility and section 237(a)(1)(H) of the INA for a charge of deportation.83 An inadmissibility charge may be applicable when the alien arrives at a port of entry in the United States at the immigration inspection or during an adjustment of status application.84 Alternatively, an alien may be charged with deportation when the Department of Homeland Security discovers fraud after the alien acquired status in the United States.85 There are certain limitations regarding waivers with certain grounds of inadmissibility or deportability.86 Some of these limitations include conviction for an aggravated felony,87 as defined in section 101(a)(43) of 80. See Rodriguez v. Mukasey, 519 F.3d 773, 777 (8th Cir. 2008) (providing another example of an immigrant claiming to be a United States citizen for the benefit of employment); see also discussion, supra Part II.A. (discussing Mr. Ferrans’ story). 81. See 8 U.S.C. § 1182 (2012) (establishing different grounds that renders an alien is inadmissible and when he or she is eligible for a waiver on those grounds). 82. See, e.g., id. §§ 1182 (providing when a waiver is authorized for inadmissible aliens), 1227(a)(1)(H) (2012) (authorizing a waiver for certain misrepresentations for deportable aliens). 83. Immigration and Nationality Act § 212(i), 8 U.S.C. § 1182(i) (2012); Immigration and Nationality Act § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H) (2012). Section 212(i) and section 237(a)(1)(H) of the INA do not apply to false claims of citizenship. See Immigration and Nationality Act §§ 212(a)(6)(C)(ii), 237(a)(1)(H). 84. See 8 U.S.C. § 1227; Charles Medina, INA 237(a)(1)(H) Waiver for Misrepresentation, ASIAN JOURNAL, June 12, 2014, available at http://asianjournal.com/immigration/ina-237a1h- waiver-for-misrepresentation/. 85. See 8 U.S.C. § 1227; Charles Medina, supra note 84. 86. See 8 U.S.C. §§ 1182(h)(2), 1227(c). 87. See id. § 1182(h)(2) (stating no waiver shall be provided in the case of an alien who has been convicted of murder or certain other criminal acts); see also id. §§ 1182(a)(3) (showing that there are also non-criminal related grounds of inadmissibility or deportation where no waivers exist); 1182(a)(6)(c)(ii); U.S. CITIZENSHIP AND IMMIGRATION SERVS., U.S. DEP’T OF HOMELAND SEC., USCIS POLICY MANUAL, available at http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume9-PartG-Chapter1.html#S-B (last updated July 21, 2015). Falsely claiming U.S. citizenship on or after September 30, 1996, for any purpose or benefit under the INA or any other federal or state law is a non-criminal related grounds of inadmissibility or deportation where no waivers exist. 8 U.S.C. §