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).
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.
……..
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.
……..
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.
……
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).