I have counseled numerous clients regarding previous lies to immigration. I refuse to represent anyone who enters into a fraudulent marriage. Immigration fraud could land you in removal proceedings. However, I have represented many clients who were asked to file waivers for misrepresentation. Sometimes I believe that the government is overreaching. However, sometimes, through no fault of their own, a client falls victim to someone else’s misrepresentation. The Board of Immigration Appeals issued a decision relating to such situations. Unfortunately, I believe the BIA got it wrong again.
Synopsis of the Decision
The case is entitled Matter of AJ Valdez, 27 I&N Dec. 496 (BIA 2019). The Respondents, husband and wife from Venezuela, hired a person whom they thought was an attorney, to legalize them. He submitted an employment-based petition using a church as an employer. He applied for the husband’s permanent residence representing that the husband was a minister. The Service adjusted their status in 2000.
In 2011, upon arriving from a trip abroad, the Service apprehended them and subjected them to secondary inspection. The husband signed a statement attesting that he never worked as a minister, even though he received permanent residence based on such assertion.
The Service placed the couple in removal proceedings under INA 212(a)(6)(C)(i), for making a material misrepresentation. The immigration judge ordered their removal reasoning that since they signed the applications, they attested to their accuracy. The couple appealed.
In upholding the immigration judge’s decision, the Board seemed to highlight the fact that the couple signed the forms. The Board added that it seemed that the couple did not want to know of the misrepresentation and did not inquire any further regarding their contents. The Board upheld the immigration judge’s credibility determination and upheld his removal order.
Misrepresentation of a Material Fact in Immigration Proceedings
I believe the Board was wrong in its decision. To prove misrepresentation in removal proceedings, the government must prove three elements. The elements are:
1) a misrepresentation, that is
2) material and
3) with intent to deceive.
The Service would not be able to prove the deportability ground of misrepresentation under
INA 212(a)(6)(C)(i) if any of these elements are lacking. I have defended many of these cases in immigration court successfully when one of these elements was lacking.
In fact, in one of these cases, the Service was able to prove the misrepresentation, but could not prove that my client knew and intended to defraud. Here, if the couple did not know that they are misrepresenting a material fact, then there were no grounds for removal. In fact, the BIA’s own analysis did not address these three elements. This is why I believe that the decision was improper.
There are several lessons to learn here:
- Do not lie in immigration proceedings
- Do not hire someone who is not an attorney
- if it is too good to be true, then seek a second opinion
Call us today at (813) 499-1250 to schedule a consultation if you have been accused of a misrepresentation or immigration fraud.
- Waivers of Misrepresentation under the Immigration and Naturalization Act
- Waivers of Misrepresentation under INA §237(a)(1)(H) and INA §212(i)
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