Fraud, Misrepresentation, False Claims to USC Misrep False... · Fraud, Misrepresentation, False...

Fraud,

Misrepresentation,

False Claims to USC

Sarah Bronstein and

Jennie Guilfoyle

Presenters

• Sarah Bronstein, Training and Legal

Support Attorney, CLINIC:

sbronstein@cliniclegal.org

• Jennie Guilfoyle, Training and Legal

Support Attorney, CLINIC:

• jguilfoyle@cliniclegal.org

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The Agenda

• Fraud and Misrepresentation

• Fraud Waiver

• False Claims to USC

• Unlawful Voting

• Other Consequences

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INA § 212(a)(6)(C)(i)

• “Any alien who, by fraud or willfully

misrepresenting a material fact, seeks

to procure (or has sought to procure or

has procured) a visa, other

documentation, or admission into the

United States or other benefit under this

Act is inadmissible.”

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Is This Fraud?

• Claims to be LPR on I-9

• Claims to be LPR to get driver’s license or

Social Security Number

• Enters on visa waiver and marries fiancé

two weeks later

• 15-year-old uses sister’s visa to enter U.S.

• Immigrates as child of LPR -- when

married

• Claims to be citizen to get SSN

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FRAUD ELEMENTS

1. By fraud or willful misrepresentation

2. Of a material fact

3. Seeks to obtain or obtains

4. A visa, other documentation, or admission into U.S.

5. Or other benefit under INA

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1. WILLFUL

• Fraud vs. willful misrepresentation

• Knowing and intentional

• Deliberate and voluntary

• Need mental capacity

• Preconceived intent: enter on B-1/B-2 and

then marry, work, or violate visa terms

– 30-day rule

– between 30 and 60 days

– after 60 days

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2. MATERIAL FACT

• Inadmissible on true facts or

• Fraud cuts off line of questioning that was

relevant and might have made

inadmissible

• How about?

– lying about age

– lying about marital status

– lying about prior arrests

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3. SEEK TO OBTAIN

• Only misrepresentations to a U.S. official

(INS, USCIS, CBP, consular official)

• Not buying, possessing false documents

• Not using for non-immigration benefit

• Timely retraction cures fraud

– Voluntary and before being exposed

– During same proceeding or examination

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4. VISA/ADMISSION

• Immigrant or nonimmigrant visa

• Admission = entry to U.S. or adjustment

• Other documentation = document used for

entry into U.S., such as:

– reentry permit or advance parole

– border crossing card

– U.S. passport

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5. OTHER BENEFIT UNDER INA

• Adjustment of status

• Asylum

• Change of status or extension of stay

• EAD, TPS, parole

• Voluntary return, stay of removal

• Does not include employment and statements on Form I-9, applications for drivers license, applications for SSN

30/60 Day Rule of Thumb

• State Dept rule-of-thumb

• Adopted by CIS

• Within 30/60 days of entry on NIV, doing

something to indicate that there may

have been immigrant intent at entry

• W/in 30 days: presumption of immigrant

intent

• W/in 60: heightened inquiry

• After 60: not a trigger for inquiry 12

FRAUD DETECTION UNIT

• Additional funding and interest by DHS

• More investigation of applicants, petitioners, and beneficiaries

• High fraud countries

• USCIS and DOS officers routinely check: – Internet, Facebook, etc

– Credit reports, civil judgments

– People living in residence

– Data systems (e.g., CLASS)

FRAUD REFERRAL SHEET

• Special USCIS internal document records: – Extreme nervousness, eye contact

– No knowledge of basic facts

– Answers prompted/interrupted by counsel

– Proactive/explicit/staged photos

– Unusual marriage history

– Unusual or large age discrepancy

– Unusual cultural differences

– Petitioner’s low financial status

ADJUSTMENT INTERVIEWS

• Separate parties and ask similar questions

– Current living arrangements

– Lifestyle

– First meeting with spouse

– Wedding ceremony, honeymoon

– Personal or joint friends, references

• Delay decision if suspect pending divorce

Is This Fraud?

• Claims to be LPR on I-9

• Claims to be LPR to get driver’s license or

Social Security Number

• Enters on visa waiver and marries USC

fiancé two weeks later

• 15-year-old uses sister’s visa to enter U.S.

• Immigrates as child of LPR -- when

married

• Claims to be citizen to get SSN

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Fraud Waiver

• 212(i)

• Extreme hardship to

• USC/LPR spouse or parent

• File on I-601

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“Any 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 274A) or

any other Federal or State

law is inadmissible.”

FALSE CLAIM OF CITIZENSHIP

FALSE CLAIMS TO USC -

DATES

• On or after September 30, 1996

• Pre-9/30/96, may be fraud

• Also deportable under INA § 237(a)(3)(D)

DEFINED BROADLY

• Knowing and willful

• Can still argue limited capacity if young

• Timely retraction OK

• Includes most false claims of “citizen or national” on I-9 (look to intent) before form changed on April 3, 2009

DEFINED BROADLY

• Silence ≠ false claim, so must take affirmative step

• Statement by 3rd party not false claim unless participate in fraud

• No waiver, but very limited exception

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EXCEPTION/NO WAIVER

• Each natural or adoptive parent of is/was USC

• Alien permanently resided in U.S. prior to 16

• Alien reasonably believed at time of

representation that s/he was citizen

• More limited than USCIS interpretation of false

claim, which requires knowledge and willful act

(may be too young)

FALSE CLAIM TO USC? • Claiming to be citizen to obtain social security

card or drivers license?

• Registering to vote?

• Claiming to be born in U.S. at P.O.E.?

• Claiming to be citizen or national on Form I-9?

• Claiming to be citizen on passport application?

• Telling your neighbor that you are a citizen?

• Entering U.S. at age 5 with false U.S. passport?

• Claiming to be born in Puerto Rico when

arrested by local police?

UNLAWFUL VOTING

• Any alien who has voted in violation of any

Federal, State, or local constitutional

provision, statute, ordinance, or regulation

is inadmissible.

• Did your client ever vote?

• If so, was it unlawful?

• Is there also a false claim to USC?

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Other Consequences of Lying

• Deportability: Inadmissible at time of entry

• Marriage Fraud: Bar to Petition Approval

• Frivolous Asylum: Bar to all benefits under

the INA

• False Testimony: Bar to GMC

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Deportable For Being Inadmissible At

Time of Entry

• In 2004, Cynthia obtained her F-2B

immigrant visa at the consulate. Before

traveling to the U.S., she married her

fiancee, Niko. When Cynthia applies to

naturalize, this information is revealed and

Cynthia is placed in removal proceedings,

charged with being deportable for being

inadmissible at the time of entry.

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204(c) Problem:

What Does it Look Like ?

When Ana’s tourist visa authorized stay was

about to expire, she married her good friend,

USC Nick, in order to have a way to remain

here. She filed a one-step application but then

withdrew it because she met the love of her life,

USC Ray. She and Nick divorced, she married

Ray, and is now wants to apply for residency.

Is this a problem? Would it be a problem if she

never filed the first application? 27

Frivolous Asylum Application: What

Does it Look Like?

• Jin, from China, wanted to come to the U.S.

to escape the poverty in which his family

lived. He arranged for a smuggler to bring

him to the U.S. The smuggler provided him

with a story to tell if he was apprehended at

the airport. Jin was caught entering with

false documents, was placed in removal

proceedings and filed an asylum application

claiming to be a member of the Falun Gong,

which was not true.

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False Testimony: What

Does it Look Like?

At her naturalization interview, Lorena

told the officer that she was never

arrested or charged with a crime. Then

the officer asked her about a disorderly

conduct charge from 1995, and Lorena

said “Oh, right! Yes, but nothing

happened and the charges were

dismissed”. False testimony?

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PRACTICE TIPS

• Do thorough interview with client – don’t

confine yourself to reviewing eligibility based

on questions on application form

• Review records of prior immigration

applications made by client

• Make sure you know how your client

obtained his/her current status

• Watch our for “double-fraud” – client making

misrep to cover for misrep: Will completely

prejudice successful waiver application

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Questions?

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