On August 23, 2013, the Immigration and Customs Enforcement issued a directive whereby undocumented parents of U.S. citizens and lawful permanent residents are to be given particular care and consideration of their circumstances in the enforcement of immigration laws, specifically in the realm of the exercise of prosecutorial discretion. This is a response to the increasing clamor against the indiscriminate deportation and removal of an undocumented parents even in circumstances where consequences to their minor children could result in foster care, extended family care, neglect or abandonment.
While the clear change in guidelines allow for a more sensible way of addressing this problem, questions remain as to how these impact on certain specific situations. What options are now available to parents who had been forced to depart back to their homeland to enable them to return the United States? Will there be special considerations for parents of U.S. citizens to ease their return? What if there is a fraud and misrepresentation issue in the past?
Elizabeth, a Filipino national, has a daughter, Sue, who was born out of wedlock. In 2005, Elizabeth entered the United States, leaving Sue in the Philippines. Elizabeth exceeded her authorized stay in the United States. As an overstaying undocumented worker, she nevertheless took whatever odd job was available to her so she could send money with some regularity back to the Philippines for Sue’s education.
In 2008, Elizabeth got married to Jonas, a U.S. citizen. A petition was filed by Jonas for Elizabeth as a spouse of a U.S. citizen. Elizabeth got her green card but after a few months, Jonas abandoned her to live with another woman. Desperate about her situation, Elizabeth decided to depart voluntarily back to the Philippines to live with her daughter.
Sue finished college and graduated with a degree in engineering. She was petitioned by a U.S. employer and she obtained her green card and eventually her U.S. citizenship. After taking the oath as a U.S. citizen, she petitioned her parent, Elizabeth in order that the latter may return to the U.S. and live with her. The I-130 visa petition was approved and Elizabeth appeared at the U.S. Embassy consular section for her immigrant visa interview. To her surprise, Elizabeth’s visa was not issued. According to the consular officer, Elizabeth committed marriage fraud when she married Jonas. As a result of the marriage fraud, Elizabeth was told that she is barred from entering the United States. Elizabeth’s relatives are all in California and she wants to immigrate soon to be reunited with her family. In fact, her parents were also petitioned by her U.S. citizen sister and are also residing in California.
Elizabeth was disheartened about the U.S. consular officer’s finding. She knew that she had a genuine relationship with Jonas and that she never engaged in marriage fraud. She contacted Jonas and discovered that Jonas’ girlfriend provided information to the U.S. Citizenship and Immigration Services that Jonas was engaged in a fixed marriage and that Elizabeth paid Jonas to file the petition. The information provided were outright lies but were apparently made during the height of an argument between Jonas and his girlfriend. Elizabeth was told that Jonas’ girlfriend was jealous of her and thought that Elizabeth and Jonas were reconciling. The consular officer barred Elizabeth from receiving the visa because of the finding of fraud.
Unlike other grounds of inadmissibility or the factors that prevent one from receiving a visa, marriage fraud carries a stiffer penalty. It bars the applicant from receiving future immigrant visas even if there is an approved petition from another relative. In Elizabeth’s case, despite the approval of a parent petition filed by her daughter Sue, Elizabeth would still not be able to receive a visa by way of penalty for the marriage fraud. What can she do? Will she be separated completely from her family members who all now reside in the United States?
Contesting the Fraud Finding
During immigrant visa interviews, consular officers may have information in their possession that may affect the issuance of a visa. Denial of past visa applications, derogatory records and other immigration papers may be available to the consular officer during the interview on the application for visa. There are times when the applicants for the visa are afforded the opportunity to submit information that may overcome the grounds for denial. In the event of a denial, normally, a document with a pre-printed section of the law is issued to the applicant after the interview. If there is a fraud finding, usually, it is written in this form. Whether a ‘waiver’ application will overcome the fraud may be included in the information provided in this document.
Most of the time, the finding of fraud is a conclusion that is reached after the interview and after review of all available information. There are also cases, however, where the basis for the finding of fraud are not clear or even unsubstantiated. In such a situation, instead of simply accepting the decision of denial, the applicant whose visa has been denied, should ask for more time and seek to overcome the finding of fraud.
When the information the consular officer relied upon to support his finding of fraud is derogatory and false, baseless in fact and simply a conclusion of law, the applicant must aggressively contest such findings by submission of documents to prove the contrary.
The option of a ‘waiver’ to overcome the fraud finding, typically provided in the denial of the visa application, should not be utilized under these circumstances as to do so would be an admission that the applicat in fact engaged in fraud and misrepresentation.
No one should admit to a fraud or misrepresentation that is based on a manufactured statement or a lie. An applicant in such a case should not submit a waiver application but instead contest the fraud.
In Elizabeth’s situation, a waiver is not even an option. Marriage fraud may not be waived. Since the Information that formed the basis for the finding of marriage fraud is false, however, her clear recourse is to contest this finding by submitting evidence in her favor. She could ask her ex-husband to execute a declaration to verify the validity of their marriage, as well as provide all other available evidence that would show that the marriage was entered in good faith. Here, Elizabeth did not commit fraud but had only incurred unlawful presence when she overstayed in the United States. Instead of being permanently barred, she should be allowed to file a waiver for her overstay and have this waiver application approved.
The Power of Concerted Action and A Call for Continued Vigilance
Family unity, even if this is oftentimes overlooked in how immigration laws are framed or implemented, is and should always be the driving force behind immigration policy. For years now and under several administrations, the “tough” stance on enforcement for even the least offensive violations of immigration rules and regulations regardless of the impact on families and family unity is reaching a breaking point. The cry for a immigration reform and a more sensible approach in dealing with undocumented immigrants is reaching a fever pitch. The new directives issued last August 23, 2013 by the Immigration and Customs Enforcement is a way to alleviate the growing tensions caused by the indiscriminate enforcement of immigration laws and to ease the oppressive situation that the gridlock in congress is currently unable to address. More importantly, however, this new direction in policy is also a manifestation of the inherent power of our concerted action, our continued vigilance, and our unceasing demand for justice for our immigrant brothers and sisters.
(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963 or visit her website at tancinco.weareph.com/old)
