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Fraud,
Misrepresentation,
False Claims to USC
Sarah Bronstein and
Jennie Guilfoyle
Presenters
• Sarah Bronstein, Training and Legal
Support Attorney, CLINIC:
• Jennie Guilfoyle, Training and Legal
Support Attorney, CLINIC:
2
The Agenda
• Fraud and Misrepresentation
• Fraud Waiver
• False Claims to USC
• Unlawful Voting
• Other Consequences
3
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.”
4
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
5
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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
8
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
9
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
10
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
11
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
16
Fraud Waiver
• 212(i)
• Extreme hardship to
• USC/LPR spouse or parent
• File on I-601
17
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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
25
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.
26
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.
28
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?
29
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
30
Questions?
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