What's the meaning of fraud under INA 212?

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Registered Users (C)
Here is the annotation of INA 212(a)(6)(C)(i) or 8 USC 1182 which lists "fraud and misrepresnetation of material fact" as the basis for inadmissibility, pay attention to the four elements of immigration fraud set by US Supreme Court The first element is "the person misrepresented or concealed some fact". Legally, "fact" is defined as "1. something that actually exist; an aspect of reality; 2. an actual or alleged event or circumstances, as distinguished from its legal effect, consequence or interpretation; 3. a evil deed; a crime" (Black's Law dictionary, abridged seventh edition).

Read the facts in these cases and compare with your own case, you will find the answer by yourself. Good luck!

4. Fraud and Misrepresentation in Procuring Documents or Seeking Entry

a. In General

8 USCS § 1182(a)(6)(C)(i) requires the government prove by clear and convincing evidence four things: (1) the person misrepresented or concealed some fact; (2) the person did so willfully; (3) the fact was material; and (4) the misrepresentation resulted in the person obtaining a visa, documentation, or entry into the United States. Kalejs v INS (1993, CA7) 10 F3d 441, reh den (1993, CA7) 1993 US App LEXIS 34102 and cert den (1994) 510 US 1196, 127 L Ed 2d 656, 114 S Ct 1305.

A false statement is material if it had a natural tendency to influence the decisions of the INS. Kalejs v INS (1993, CA7) 10 F3d 441, reh den (1993, CA7) 1993 US App LEXIS 34102 and cert den (1994) 510 US 1196, 127 L Ed 2d 656, 114 S Ct 1305.

Once materiality is proved by clear and convincing evidence, the government is deemed to have established a rebuttable presumption that the person got his or her visa because of the misrepresentation; the accused may rebut the presumption by showing through a preponderance of the evidence that the statutory requirement for admission was met regardless of the falsehood. Kalejs v INS (1993, CA7) 10 F3d 441, reh den (1993, CA7) 1993 US App LEXIS 34102 and cert den (1994) 510 US 1196, 127 L Ed 2d 656, 114 S Ct 1305.

An alien's lies on his immigration documents were material and resulted in his obtaining a visa and admission to the United States, and he was thus deportable, where had the alien told the truth about his war service, it would certainly have prompted further inquiry, and would probably have tipped the scales entirely against admitting him. Kalejs v INS (1993, CA7) 10 F3d 441, reh den (1993, CA7) 1993 US App LEXIS 34102 and cert den (1994) 510 US 1196, 127 L Ed 2d 656, 114 S Ct 1305.

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Using fraudulent documents to obtain passport is conduct that is clearly covered under 8 USCS § 1182(a)(6)(C)(i). Cervantes-Gonzales v INS (2000, CA9 Cal) 244 F3d 1001, 2001 Daily Journal DAR 3389, amd (2001, CA9 Cal) 2001 CDOS 2721, 2001 Daily Journal DAR 3389.

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Misrepresentation in procuring visa is material if (1) alien is excludable on true facts or (2) misrepresentation tends to shut off line of inquiry which might have resulted in decision to exclude alien. In re Gilikevorkian (1973, BIA) 14 I & N Dec 454.

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Alien who is found excludable for seeking to procure entry by fraud or willful misrepresentation of material fact is forever barred from admission to United States unless waiver is obtained; consequently, factual basis for possible finding of excludability under former 8 USCS § 1182(a)(6)(C)(i) will be closely scrutinized, since such finding may perpetually bar applicant from admission. In re Y-G- (1994, BIA) 20 I & N Dec 794.


Individual who knowingly enters U.S. on false passport has engaged in willful fraud and misrepresentation of material fact. Esposito v INS (1991, CA7) 936 F2d 911, reh den (1991, CA7) 1991 US App LEXIS 17976.


Although Government may not have to prove intent to deceive in order to establish alien's deportability for willfully misrepresenting material fact, pursuant to former 8 USCS § 1182(a)(19), it must at least show that alien knowingly and intentionally supplied incorrect material facts. Castaneda-Gonzalez v Immigration & Naturalization Service (1977, App DC) 183 US App DC 396, 564 F2d 417.

b. Particular Misrepresentations
1) Marital data

Immigration judge did not err in concluding that petitioner deliberately and willfully lied on his visa application where petitioner purportedly married U.S. citizen either knowing that he was still married to first wife, or, at best, without determining whether she had divorced him and where he then obtained visa on basis of spurious marriage without disclosing fact that he had previously been married. Espinoza-Espinoza v Immigration & Naturalization Service (1977, CA9) 554 F2d 921.

Alien violates 8 USCS § 1192(a)(19) by obtaining immigrant visa to United States on basis of his marriage to United States citizen without disclosing that divorce action is pending, where finding of fact by Immigration Judge indicated that misrepresentation, rather than alleged reconciliation, was alien's reason for not revealing that divorce action had been filed. Vasquez-Mondragon v Immigration & Naturalization Service (1977, CA5) 560 F2d 1225.

It is within authority of INS to make inquiry into marriage to extent necessary to determine if it was entered for purpose of evading immigration laws, and conduct and lifestyles before and after marriage is relevant to extent it aids in determining intent of parties at time they were married; substantial evidence that marriage was sham is supplied by fact that former wife testified alien approached her and offered to pay her $ 200 to marry him and help arrange for resident passport, telling her they would not have to live together and he would later get divorce, and by testimony that she lived with roommate both before and after marriage. Garcia-Jaramillo v Immigration & Naturalization Service (1979, CA9) 604 F2d 1236, cert den (1980) 449 US 828, 66 L Ed 2d 32, 101 S Ct 94, reh den (1980) 449 US 1026, 66 L Ed 2d 487, 101 S Ct 594.

Immigration judge erroneously found Filipino alien to be deportable under 8 USCS § 1251(a)(2), (c) for having entered United States with immigration visa procured on basis of a fraudulent marriage, in violation of former § 1182(a)(19), where determination that marriage was fraudulent was based on unsupported affidavit of alien's former wife, taken more than year prior to deportation hearing, since admission of such out-of-court statement by nonparty offered for truth of matter asserted deprived alien of fundamental fairness. Baliza v Immigration & Naturalization Service (1983, CA9) 709 F2d 1231, 12 Fed Rules Evid Serv 759.

BIA finding that alien deportable for obtaining immigration visa by fraud or willful misrepresentation of material fact, upheld upon review where court determines (1) there is reasonable, substantial, and probative evidence in record to support decision; and (2) evidence shows, clearly and convincingly that alien completed application for permanent residence after dissolution of his marriage, and when alien claimed he was married to a U. S. citizen he understood that he was in fact divorced. Hernandez-Robledo v Immigration & Naturalization Service (1985, CA9) 777 F2d 536.

Alien is deportable where she represented she was not married in her application for permanent residency as unmarried daughter of permanent resident when in fact she had been married in civil ceremony in Philippines, even though alien obtained annulment from Philippines while her deportation proceeding was underway which rendered marriage void ab initio. Garcia v INS (1994, CA7) 31 F3d 441.

Retroactive effect will not be given to alien's annulment of her marriage where to do so would undermine intent and purpose of immigration law; thus, where alien willfully misrepresented that she was unmarried in order to obtain permanent residency in U.S., court will not give her annulment retroactive effect. Garcia v INS (1994, CA7) 31 F3d 441.

Alien who had become permanent resident as result of fraudulent marriage to United States citizen, and who attempted to reenter United States following trip abroad, was excludable pursuant to former 8 USCS § 1182(a)(19). Biggs v INS (1995, CA9) 55 F3d 1398, 95 CDOS 3847, 95 Daily Journal DAR 6626.

Immigration Judge properly exercised discretion in granting alien 8 USCS § 1182(k) waiver, because alien believed that she was not married at time of her attempted entry into United States and her marriage was found to be void because ceremony was performed prior to issuance of valid marriage license. Mayo v Ashcroft (2003, CA8) 317 F3d 867.

Alien who was already married to Mexican wife at time of marriage to United States citizen, and who entered United States as United States citizen's husband, will be held deportable as one who procured immigrant visa through fraud or misrepresentation notwithstanding fact that Mexican marriage has subsequently been annulled, and, under Mexican law, is considered void ab initio. In re Magana (1979, BIA) 17 I & N Dec 111.

Alien who has been denied immigrant visa under former 8 USCS § 1182(a)(19) for his fraudulent conduct in obtaining fiancee visa and entering into marriage solely for purpose of obtaining visa may receive waiver of ground of excludability under 8 USCS § 1182(i), where marriage between alien and United States citizen appears to be viable, spouses are living great distance apart, and are undergoing both hardship of separation and economic hardship of maintaining 2 separate residences; in determining propriety of granting visa, questionable factor should either not be considered, or resolved in favor of applicant. In re Da Silva (1979, Comr) 17 I & N Dec 288 (superseded by statute as stated in Salas-Velazquez v INS (1994, CA8) 34 F3d 705).
 
2) Purpose of visit

Alien who adopts transit-without-entry device solely to reach border of United States without intention of pursuing journey violates transit-without-visa program and commits fraud on United States. United States v Kavazanjian (1980, CA1 Mass) 623 F2d 730.

Alien in transit without visa (TWOV) who seeks asylum upon landing in U.S. is excludable alien as defined at 8 USCS § 1182(a)(6)(C)(i), since alien willfully misrepresented his intentions to seek asylum when he was granted TWOV status. Linea Area Nacional de Chile, S.A. v Meissner (1995, CA2 NY) 65 F3d 1034.

Alien is not inadmissible under 8 USCS § 1182 as having procured visa by fraud or by willfully misrepresenting material fact, by reason of having indicated purpose of trip to United States was "to visit America" and intended time of stay was "one month", when alien was in fact coming to study in United States for 9 month period, where it is not unlikely that alien considered declared purpose to visit America, to be accurate statement of intent, in that he believed he was ineligible for student visa because school was not approved educational institution, and thought, as consequence, that he could properly apply for tourist visa; rather, such alien is excludable as immigrant without requisite travel or entry documents. In re Healy (1979, BIA) 17 I & N Dec 22.


3) Status or classification of person

Alien making entry into United States who falsely represents himself to be citizen, is not only excludable, if detected at time of entry, under § 212(a)(19) of Immigration and Nationality Act (former 8 USCS § 1182(a)(19))--which provides for the exclusion of any alien who seeks to enter the United States by fraud or misrepresentation--but also has so significantly frustrated process for inspecting incoming aliens that he is also deportable under § 241(a)(2) (8 USCS § 1251(a)(2)) as one who has entered United States without inspection. Reid v INS (1975) 420 US 619, 43 L Ed 2d 501, 95 S Ct 1164 (superseded by statute as stated in Rodriguez-Barajas v INS (1993, CA7) 992 F2d 94).

Petitioner's request for asylum, based on assertion that her daughters would be subjected to female genital mutilation if removed to Nigeria, was denied where children and their father were not ordered removed, only petitioner, who illegally brought another child into U.S. from Bahamas. Olowo v Ashcroft (2004, CA7) 368 F3d 692.

Order to Show Cause charging alien with entry without valid document in violation of 8 USCS § 1182, in that alien entered United States as second preference immigrant when not entitled to that classification, is sufficient although it does not allege alien was ineligible for any other numerical classification, since such allegation is unnecessary to charge. In re Raqueno (1979, BIA) 17 I & N Dec 10.


4) Other particular misrepresentations


Submission by applicant for immigrant visa of forged letter and forged employment certification, which he knew were forged, and presentation of false papers to counsel, constituted willful misrepresentation in visa proceedings. Suite v Immigration & Naturalization Service (1979, CA3) 594 F2d 972.

Essential feature of material misrepresentation is that it misleads government officials with respect to area of potential significance and decision to grant or deny visa; crew members hiding of their past association with Cuba Airlines, their lifetime residence in Cuba, and their prior visa applications as Cuban citizens deprived United States officials of chance to assess international implications raised by their visa applications. United States v One Lear Jet Aircraft (1987, CA11 Fla) 808 F2d 765

Alternative and independent ground for deporting alien was his excludability at time of entry based on alien's lies on immigration papers claiming that he had spent World War II in German Army rather than SS because he believed his SS service would bar him from obtaining visa; such misrepresentation concerned material fact because alien's service at Gross-Rosen concentration camp closed off relevant line of inquiry which would have designated alien as excludable. Kulle v Immigration & Naturalization Service (1987, CA7) 825 F2d 1188, cert den (1988) 484 US 1042, 98 L Ed 2d 860, 108 S Ct 773.

An alien was excludable under INA § 212(a)(19) [former 8 USCS § 1182(a)(19)] based on his procurement of an immigrant visa by misrepresentation of a material fact where although the alien acknowledged that he had been arrested and imprisoned, he did not disclose his conviction or the nature of that conviction (which involved moral turpitude), and had the consular officer known of the alien's conviction and sentence, the alien would have been found excludable under INA § 212(a)(9) [former 8 USCS § 1182(a)(9)]. Solis-Muela v INS (1993, CA10) 13 F3d 372.

Using fraudulent documents to obtain passport is conduct that is clearly covered under 8 USCS § 1182(a)(6)(C)(i). Cervantes-Gonzales v INS (2000, CA9 Cal) 232 F3d 684, 2000 CDOS 9115, 2000 Daily Journal DAR 12114, amd (2000, CA9 Cal) 244 F3d 1001, 2001 Daily Journal DAR 3389, amd (2001, CA9 Cal) 2001 CDOS 2721, 2001 Daily Journal DAR 3389.

District Director had substantial evidence to conclude that alien was excludable under 8 USCS § 1182(a)(6)(C)(i), where alien had purchased counterfeit alien registration card and presented it to U.S. border agents in attempt to enter U.S. Sharma v Reno (1995, ND Cal) 902 F Supp 1130, 95 Daily Journal DAR 15049.

Alien may be found deportable under INA 212(a)(19) [former 8 USCS § 1182(a)(19)] where he misrepresented his wartime military service to immigration authorities by claiming to have served in German Army instead of division of Waffen SS, thus concealing his concentration camp guard duty. In re Kulle (1985, BIA) 19 I & N Dec 318, affd (1987, CA7) 825 F2d 1188, cert den (1988) 484 US 1042, 98 L Ed 2d 860, 108 S Ct 773.
 
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