Category: misrepresentaiton

Know Yourself Before Applying for An Immigration Benefit

I will  be discussing the second case that I discussed in my last post. This case involved a Respondent with so many identities, that the court could not find out his true identity. In Singh v. Holder, a Respondent appealed the Board of Immigration Appeals‘ order affirming the immigration judge’s decision denying his application for adjustment of status. He claimed that his due process rights were violated and that the Board erred in holding that he could not prove that he was admitted into the United States.

Singh claimed that his name in Tarsem Singh and was born on June 13, 1982, and that he entered the United States in 1995. He was also known as Simranjit Singh. He was smuggled into the United States as the daughter of a family friend. He was apprehended by ICE in 1997 and was served with for I-213. The document showed that he was born in 1978, making him 19 years old at the time. He was removed in absentia after he failed to appear for his removal hearing.  His mother procured a new birth certificate for him, with a new name and a new birthday, making him 15 years old. He filed a motion to reopen the case arguing that he did not receive proper notice of the old proceeding, which was granted. He then moved to terminate the proceedings arguing that he was a minor at the time and termination was warranted under 8 C.F.R. § 236.3. The immigration judge ordered his removal reasoning that he was nineteen when served with the first Notice to Appear. He also ruled that he was not inspected by an immigration officer, since his story could not be credited. The Board upheld the immigration judge’s decision.

The First Circuit rejected Singh’s argument that his due process rights were violated since he was given enough notice to speak to his father about his arrest and because the curt could not prove his true age. The court also ruled that Singh could not show that he was inspected since he could not provide proof of such inspection. Thus, the court upheld the Board‘s decision.

I think that this case should not have been appealed. I believe that as practitioners we should be cautious of what we appeal, due to the concern that we establish bad law. I welcome your comments and feedback.

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Waivers of Misrepresentation under the Immigration and Naturalization Act

I have represented several individuals, both before the Service and immigration courts, who were inadmissible for a material misrepresentation under the Immigration and Naturalization Act (INA). The typical problem involves a situation where a person was applying for a visitor’s visa, says that he/she is married when she is not, and now is applying for permanent residence based on a marriage petition. During the adjustment of status interview, the misrepresentation is discovered and the application is denied or put on hold to allow the client to apply for a waiver. In some cases the client is even placed in removal proceedings after the application is denied under Section 237(a)(1)(A) of the Act.

The good thing about these charges, if you were before the Service, is that you can apply for a waiver of the ground of inadmissibility under INA 212(i). The waiver allows the Attorney General to waive the ground of inadmissibility if the alien’s removal would lead to extreme hardship to the alien’s US citizen child or spouse. In the case of a VAWA applicant, the immigrant would qualify for the waiver if the removal would lead to personal hardship.

I have represented several clients in removal proceedings who were placed there for one reason or another. The government bears the burden of proving removability in removal proceedings. The immigrant’s chances of success in both instances depend on the availability of a qualifying relative to show hardship and the evidence that the Service possesses to prove the misrepresentation. I have always tell people, these are very complicated cases and no one should attempt to apply on their own (without an attorney).

Please let me know if you have any questions. Also, feel free to add me on Linkedin, Google+, twitter, or leave a comment using the form below.

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DOS and DHS Change Their Rules Regarding Misrepresentation

In a letter sent to Majority Leader Harry Reid, DHS announced a new procedure regarding the application of section 212 (a)(6)(C)(ii) of the Act. The section makes an  applicant who makes a false claim to citizenship inadmissible into the United States. 
The new policy makes a person inadmissible only when the claim is knowingly made to the immigration officers. A person raising the claim that his misrepresentation was in error bears the burden to prove such assertion. The new policy also establishes a new affirmative defense for people who were under 18 when the claim was made. This defense has two components: 1) that the person was under 18 when the claim was made and 2) that the person could not have appreciated the consequences of such claims. 
I have represented several clients in immigration court who had been charged with misrepresentation under the Act. Several of them did not have the intent to misrepresent a material fact to the officer. I welcome the change and I look forward to pleading the new policy in immigration court. 

BIA Rules that False Claims to Citizenship at Entry Makes Alien Inadmissible

In a decision issued last week, the Board of Immigration Appeals ruled that an alien who makes a false claim to citizenship at an entry-point has not been admitted under the law. In Matter of Pinzon, a citizen of Venezuela obtained a US passport in the 1980s, using a fake birth certificate. She was convicted in 2002 under 18 U.S.C.§ 1001(a)(2) (2000) for making a false statement. She was placed in removal proceedings, where she argued that she was inadmissible and applied for cancellation of removal. The immigration judge denied her application for cancellation of removal and ordered her removal but  granted her voluntary departure. 
I upholding the immigration judge’s decision, the BIA ruled that it has long held that a person who makes a false claim to citizenship at a port of entry has not been admitted under the Act. The Board reasoned that since the scrutiny is different when it comes to a non-US citizen seeking admission, an alien who gains admission under a false claim to citizenship cannot be deemed to have been admitted under the Act. The Board also ruled that a conviction under 18 U.S.C.§ 1001(a)(2) (2000) is a crime involving moral turpitude since the alien had to make a false statement, which usually involves moral turpitude. 
This decision is erroneous since  the crux of “admission” under the Act is whether the alien was in fact inspected by an immigration officer. It was unclear whether Pinzon had undergone such inspection by the Service. We will see if there will be a petition for review in the this case. 
For a definition of “admission” under the Act visit: http://www.law.cornell.edu/uscode/text/8/1101