Fraud, Misrepresentation, False Claims to USC. Sarah Bronstein and Jennie Guilfoyle

Transcription

1 Fraud, Misrepresentation, False Claims to USC Sarah Bronstein and Jennie Guilfoyle

2 Presenters Sarah Bronstein, Training and Legal Support Attorney, CLINIC: Jennie Guilfoyle, Training and Legal Support Attorney, CLINIC: 2

3 The Agenda Fraud and Misrepresentation Fraud Waiver False Claims to USC Unlawful Voting Other Consequences 3

4 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

5 Is This Fraud? 5 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

6 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 6

7 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 7

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 8

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 9

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 10

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 11

12 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

13 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)

14 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

15 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

16 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

17 Fraud Waiver 212(i) Extreme hardship to USC/LPR spouse or parent File on I

18 FALSE CLAIM OF CITIZENSHIP 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. 18

19 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)

20 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

21 DEFINED BROADLY Silence false claim, so must take affirmative step Statement by 3 rd party not false claim unless participate in fraud No waiver, but very limited exception 21

22 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) 22

23 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?

24 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? 24

25 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

26 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

27 204(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

28 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

29 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

30 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

31 Questions? twitter.com/cliniclegal 415 Michigan Ave., NE Suite 200 Washington, DC facebook.com/cliniclegal