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Monday, June 26, 2006
Reeves: Immigration to the US through misrepresentation
By Robert L. Reeves
DESPERATION makes people do strange things.
An adult beneficiary of a petition filed by a parent, who is a permanent resident, has to wait many years for his petition to become current. If he marries before he gets his green card, the petition becomes invalid and he loses his chance to come to the United States.
Yet, it is hard to put one’s life on “hold” for 10 or more years. Many people facing this situation marry and have children while waiting. Years later, when informed that the petition is now current, some find it impossible to give up the dream of coming to America.
An alien in that position sometimes lies to the US Consulate about marital status and the existence or legitimacy of any children and gets a green card as the single son or daughter of a permanent resident.
Once in possession of a green card, the alien usually tries to reunite with his family. The actions he take make a bad situation worse. Some aliens go home to their country of origin and re-marry their spouse and file a petition on the spouse’s behalf.
Some wait for five years, apply to become a US citizen and then file the family petition. More often than not, the result of these actions is that the alien finds himself in immigration court. The government tries to take back the green card and deport the alien.
But all is not lost. There is still hope. The Immigration and Nationality Act, under Section 237 (a) (1), allows an alien who lied to get a green card to apply for a waiver. The waiver is available to aliens who are the spouse, parent, son or daughter of a citizen of the US or of an alien lawfully admitted for permanent residence.
To obtain the waiver, the alien must show that the positive factors in his case outweigh the negative ones. In Tijam, a Board of Immigration Appeals case, judges are given a detailed guide of negative and positive factors to consider in deciding whether to exercise discretion and grant the waiver.
Among the negative factors are: the “nature and underlying circumstances of the fraud or misrepresentation involved; the nature, seriousness and occurrence of any recent criminal record; and any “additional evidence of the alien’s bad character or undesirability as a lawful permanent resident of the United States.”
Positive factors to be considered may include: “family ties in the United States; residence of a long duration in this country, particularly where it commenced when the alien was young; evidence of hardship to the alien or her family if deportation occurs; a stable employment history; the existence of property or business ties; evidence of value and service to the community; and other evidence of the alien’s good character.”
Under INS versus Yang, the immigration judge may consider as negative factors all the lies told in order to get and keep a green card—including the initial lies told to gain entry into the United States. This means the judge can consider as a separate fraud the remarriage after the green card issuance to use the second date for purposes of immigrating the spouse.
The judge can also consider any lies told on any family petition or naturalization applications as distinct and separate fraudulent acts. Each of these lies will count as a separate negative factor.
Evidence of the positive factors must be carefully presented to the court through documentation and testimony. In addition, the negative factors must be thoroughly dealt with and explained.
Because so much is at stake, aliens in this situation should seek the advice and assistance of an immigration attorney who is experienced in this type of case.
The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.
(www.rreeves.com)
For Bisaya stories from Cebu. Click here. (June 26, 2006 issue)
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