Author: tancincowp

Joselito was a supervisor in one of the departments of a financial institution in charge of foreign remittances . He was invited by their US based company to visit their San Francisco office. Last year, Joselito entered the US on a B1/B2 visa and was granted three months of authorized stay.  He did not leave the US at the expiration of his visa and Joselito overstayed for more than six months.

He engaged in unauthorized employment as a “health care worker” for a home companion agency. It was through his employment where he met his future wife, Marita, a US citizen. Joselito and Marita had a relationship for more than a year until Joselito was taken into custody by Immigration and Customs Enforcement (ICE) during one of their raids.  Joselito was brought into removal/deportation proceedings. He sought voluntary departure and was granted four months to leave the US.

Joselito failed to leave within four months and instead married Marita. A petition was filed by Marita but this was denied because of  Joselito’s failure to depart the US on voluntary departure. He was again taken into custody and this time, he was deported without hearing.

Marita wants to petition Joselito for green card and wants him to return to the US with him. Does Joselito have a chance of returning to the US?

Voluntary Departure

Voluntary Departure is a relief that may be availed of by a noncitizen who is put into deportation proceedings. There are three different stages at which the Department of Homeland Security (DHS) or an Immigration Judge (IJ) may order voluntary departure: before removal proceedings are initiated, before completion of proceedings, and at the conclusion of proceedings.

This relief is taken in lieu of a deportation order to ease the process of returning to the United States after departure. In the past, one of opted for voluntary departure may find it beneficial than accepting an order of deportation. It is not always the case these days and that the ability to return is guaranteed.

It is true that if there are no grounds for inadmissibility or bars to admission to the United States, the noncitizen who accepts a voluntary departure may return to the US as long as they hold a valid nonimmigrant or immigrant visa issued after arrival in the US. However, if there were grounds for inadmissibility prior to accepting voluntary departure, it will be difficult to return to the US.

Grounds for Inadmissibility

Inadmissibility refers to those factors that exist in an individual case that bars them from receiving a US nonimmigrant or immigrant visa. There are numerous grounds of inadmissibility ranging from health care to criminal grounds. The most popular grounds for inadmissibility are the three and ten year bars.

Bar arises because of prior behavior of the individual that constitutes what you call the “unlawful presence” status.

These bars are classified based on the period of time the individual is prevented from receiving visas. These are what you call the (1) three year bar; (2)10 year bar; (3)5 year bar and (4) lifetime bars. They are equivalent in criminal law of “sentences” except that they do not refer to imprisonment but are referred to indicate inability to get visas for a certain number of years.

The harsh consequence of grounds for inadmissibility is that they result in long time family separation. They act as penalty for wrongdoings even if the “wrongdoing” was unintentional.

Limited Value of VD

Voluntary departure (VD) has limited value and may not prevent return to the US if there was no prior inadmissibility. This happens for instance in the case of a person whose unlawful presence is only for less than six months. This person may accept the voluntary departure and must indeed leave before expiration of the voluntary departure in order that he may return without incident.

It is not all loss for those who are faced with the bars to inadmissibility. The immigration regulations permit the filing of “waiver” applications for those facing certain bars. This waiver requires meeting all the eligibility requirements including proof of “extreme hardship” to the US citizen spouse or parent.

Harsh Consequence

Joselito left on a removal order and is now barred for ten years before he may be able to return to the US. He should not have taken a voluntary departure if he did not have the intention to depart the US. Now that he is “deported” he needs to file for Waiver of Inadmissibility and the Application for Permission to Re-enter should a visa become available.

Most of the time noncitizens in the US who had fallen out of status are caught between a rock and a hard place when deciding whether to depart voluntarily or stay in the US unlawfully. In both situations, the noncitizen bears harsh consequences because of their lengthy unlawful presence. A significant number of them decide to stay in the US than working their way to return to the US. They maintain that they would rather be with their loved ones in the US even if their stay in unlawful. They become part of the 12 million undocumented hoping for the passage of the Comprehensive Immigration Reform under Obama’s administration. After the controversial health care bill is passed, it is forthcoming.

(Tancinco may be reached at law@tancinco.com or at 887 7177).

One of our readers sent this email several times requesting that I respond in my column regarding the issues of submitting false documents to obtain US citizenship. Interestingly, she mentioned the falsity in detail that involves not just US immigration service but also some Philippine government agencies.

Dear Atty. Lou: I read your column in the inquirer.  Can you write me a column about a falsification of information to the US government and ended up becoming a US citizen?

Francis (not his real name) was a Chinese citizen with Alien Certificate of Registration (ACR) number.  His parents “deceived” the Philippine government that they are Filipino citizens even if they are Chinese citizens. They didn’t bother to pay yearly ACR dues.  Francis’ birth certificate stated he is a Chinese by birth. When he was studying in elementary, he just go to their family priest asked him to sign permission slip to enroll instead of getting study permit.

When he study in College, he will have to go to their family Compadre  in immigration and give few hundred pesos and he get a Birth Certificate and correction in his birth certificate that his father is a Filipino and that he is a Filipino even has Masteral degree.

He even went to work in San Miguel and after that CIS in Meralco.  Again if the company asked for his birth certificate, he will go to their family Compadre in immigration for correction in his BC  that he is a Filipino.

Francis was able to obtain a working visa to go to the US to work as a programmer for a US company in the mid-90s. He used his Filipino passport which he obtained using a false Filipino birth certification again by paying someone to issue him this passport.

After a few years working in the US he filed an application to file for his immigrant visa through his employer. As part of the application he attached his birth certificate as a Filipino citizen even if he is a Chinese citizen.
 
There are numbers of Chinese who may have gotten Filipino passports for travel purposes.  I even have one and  use a Filipino last name just to go abroad for vacation so that I don’t have to pay a lot of travel taxes  but when it comes to going to US , I can’t used this kind of passport because I might be deported .
 
But for Francis he used it to fool the US government that he is a Filipino. During the early 90s it is very easy to get Filipino passports without a BC attached and it is also easy to get a BC with change of citizen and paying higher price to get the Chinese last name for a Filipino passport and cheaper if it is a Filipino last name. With him, everything matches with his Filipino passport. This year he applied for naturalization to become an American Citizen. Is there a requirement to submit a birth certificate when applying for American Citizen?
 
What are the consequences of him submitting falsified documents to the Citizenship and Immigration Service during the green card application and naturalization application? If he is a US citizen now, may he still be held liable for submission of false documents?—Thanks, EL

Removal or Denaturalization

Fraud arises in the contexts of inadmissibility, removal or denaturalization situations. A green card holder who is discovered to have obtained his immigrant status through fraud is subject to deportation or removal proceedings based on fraud and misrepresentation. This will require proof that the misrepresentation was material to obtaining the status.

Willful misrepresentation is defined in FAM as simply a false misrepresentation, willfully made, concerning a fact, which is relevant to the alien’s entitlement. Not all misrepresentations or concealment will constitute fraud. It depends in what context is arises.

In the case of Francis, the allegation of “fraudulent” passport indicates that he concealed his real nationality. However, since he is now a US citizen, the US government has the burden of proving that the naturalization to US citizenship was procured through fraud and misrepresentation. In the Kungys v. United States 485 US 759 case, the Court determined that the misrepresentations made in the visa application process were not material to the naturalization process, and that the misrepresentations in the naturalization proceeding of the date and place of birth were not in themselves relevant to the naturalization process and were thus not material.

The revocation of naturalization is called “denaturalization” proceedings. This may be initiated against a naturalized US citizen if statutory grounds for its revocation exist. One of the grounds for denaturalization is the “illegal procurement or concealment of a material fact or by willful misrepresentation”.

Denaturalization may occur in three ways (1) through a court proceeding; (2) through an administrative proceeding and as a (3) result of a criminal conviction for knowingly procuring naturalization by fraud where the sentencing judge strips the person of his or her citizenship.

The Department of Homeland Security has the authority to reopen naturalization 8 CFR Section 340 if the application is granted in error. DHS must prove that the evidence was not known at time naturalization granted. The US prosecutor may also initiate federal criminal against Francis if the evidence are beyond reasonable doubt that he had indeed defrauded the US immigration by submitting false documents.

Considering US Department of Homeland Security’s restrictive policy against fraud, this agency is mandated to go after fraudulent applicants even to the extent of revoking a naturalization certificates. The email sender may just be speculating or may have proof that indeed Francis engaged in fraud in obtaining immigration benefits. Whatever it is, proving fraud in denaturalization proceedings requires a very high standard of proof.

(Tancinco may be reached at law@tancinco.com or at 887 7177)