Author: tancincowp

The word that stuck to our minds in the Corona impeachment is ‘palusot’. Representative Rudy Farinas used this word numerous times in his closing argument. We are so familiar with the word ‘palusot’ because growing up in a Filipino household we have always encountered this word. When we are caught making a ‘palusot’ our reaction is either to be shamed by it or to just laugh it off.

After hearing this word many times during the Corona trial as well as in numerous news reports, I began to also realize that I often encounter this word when dealing with immigration clients.

Very recently, there was a ‘palusot’ of a widower of a U.S. citizen. An immigrant petition was filed by a U.S. citizen on behalf of her spouse. On the date of the interview, the husband said that the wife was still very ill and asked the immigration examiner for a postponement of the interview. The interview date was rescheduled. After making sworn representations that the wife was very ill, the husband now admits that the wife died prior to the date of the interview and that he lied to the immigration officer. When asked why he lied, he said he was confused and was afraid that he will be deported if the immigration officer discovers the death of the petitioning spouse. This was a lame excuse which will instead lead to him being barred from receiving any future immigrant visa.

Palusots of Those Concealing Prior Marriages

Jessie is currently being petitioned by his U.S. citizen spouse Anna. Jessie however concealed the fact that he was previously married to Catherine.  This prior marriage was never annulled and Jessie also did not declare this prior marriage in all his visa applications.  When asked why he did not declare his prior marriage, his excuse was that he really never lived with his prior wife. According to him, he only stayed with Catherine for a few months but never lived permanently with her. After many years, Catherine also re-married and has her own family now. Meantime, Jessie is about to be interviewed for his immigrant visa at the U.S. Embassy. If his prior marriage will be discovered (which is most likely), his palusot of having lived with her for a short period of time only will not release him from the adverse consequence of  his misrepresentation. This will result in the denial of his visa and his ‘palusot’ will have worked against him.

The same case applies to an immigrant who conceals a marriage but nevertheless is able to get an immigrant visa. Thinking his ‘palusot’ was effective, George returned to marry his spouse again in the Philippines. When he petitioned his spouse and children, the U.S. consular officer discovered the initial fraud of concealing the prior marriage. As a consequence, George’s wife and children were denied U.S. visas. In addition, George is now facing removal/deportation proceedings before an immigration court.

Lastly, let’s revisit a case of a “secret” marriage. In an adjustment of status application before an immigration examiner at the U.S. Citizenship and Immigration Service, a couple submitted themselves for interview. The US citizen wife was the petitioner and the applicant for green card was the husband. The husband declared no prior marriages. During the interview, the immigration examiner gave a warning on the consequence of lying. When the husband was asked the question about any prior marriages, he admitted to marrying his high school sweetheart many years ago in the Philippines. He said he did not declare this marriage, because he thought that this was a “secret” marriage. And secret marriages, according to his erroneous understanding, are supposed to be confidential. His palusot resulted in more trouble. He was denied the visa by the immigration service; and, his U.S. citizen wife divorced him for being untruthful, among others. Until now this person is without legal immigration status.

Deliberate Lies

In the immigration context, fraud and willful misrepresentations can result in severe penalties. It may cause permanent separation of families because of these penalties.   

There are cases where “palusots” do work effectively.  Still, it is important to realize that this does not imply that misrepresentations are right. Most of the time, deliberate lies and misrepresentations are discovered. In an embassy or consulate categorized as a “high fraud” post,  like the U.S. Embassy in Manila, aggressive efforts are taken by authorities to investigate each case where a red flag for fraud exist.  Sadly, there are also some immigration examiners at the U.S. Citizenship and Immigration Service who suspect fraud from innocent Filipino applicants after having discovered numerous marriage fraud cases with other Filipinos. This is a sad reality and that there must be an awareness that being truthful is always a key element to a successful and positive outcome in visa applications.

Waivers

If fraud and misrepresentation exists in an immigration case, the best route to take is to confront the issue and apply for a ‘waiver’. It may not be easy to get a waiver and it may not be available to every applicant. However, getting a waiver from the immigration examiner or consular officer may be the best and only route to get a visa. If the waiver is granted, then the prior fraud or misrepresentation is forgiven and the applicant should no longer rely on a “palusot” which may result in harsh consequences.

(Tancinco may be reached at law@tancinco.com or at 721 1963 or 887 7177).

Jeremiah was granted U.S. lawful permanent resident status in 2005.  In 2009, he went back to Manila to visit his parents. While there, his 90-year old mother passed away. He spent a significant time in Manila caring for his father who was also in failing health and trying to get her mother’s estate in order. After almost two years in Manila, he finally returned to the United States in 2011.

Upon his arrival at the port of entry in LA California, he was issued a Notice to Appear. The Customs and Border Protection inspector charged him with abandonment of his permanent residence status and paroled him in to attend his hearing.

Jeremiah must now convince the immigration judge that he never intended to abandon his status. If he is not able to effectively contest the charge of abandonment, his green card will be revoked and he will be sent back to the Philippines. How will Jeremiah proceed with his case?

Failure to Return in One Year

If a green card holder remains outside the United States for more than one year, he is presumed to have “abandoned” his resident status and his green card could be invalidated/terminated by the Department of Homeland Security.  Unlike other travelers, however, the immigrant or green card holder is not subject to an expedited removal (or what is commonly known as “airport to airport”). He has the right to a hearing before a judge to contest the findings of abandonment by the Department of Homeland Security. Whether or not an individual green card holder will be brought to an immigration judge for a hearing will depend on the circumstances of the case. If there are valid reasons to show that there was no intent to abandon, then the individual will not be removed and will be allowed to retain his green card.

Contesting Abandonment

When there is absence of more than one year, a green card holder may either contest abandonment through the consular office of the U.S. Embassy or before the Immigration Court upon entry to the United States.

To avoid the trouble of prolonged interviews or extensive questioning at the port of entry upon arrival in the United States, contesting abandonment before entry may be done before the consular officer at the U.S. Embassy. This means applying for and getting approval for an SB-1 visa or a returning resident visa. A returning resident visa application is filed directly with the U.S. Embassy by filling up form DS117 and DS230. There is a non-refundable fee of $380.

Returning residents must show the consular officer that when they departed from the United States, they had every intention of returning and have not abandoned their US residency. In addition, they should be able to show that their trip outside the United States was temporary; that their protracted stay was caused by reasons beyond the green card holders’ control for which they are not responsible.

Documents Showing Unrelinquished U.S. Residence

The Department of State’s guidelines on what constitutes proof of ‘abandonment’ include failure to pay U.S. taxes and strong ties in the Philippines. If the green card holder has family members, properties, businesses located outside the United States and there were frequent absences from the United States, there is greater likelihood that permanent residence status would be considered abandoned and the green card revoked.

It is important therefore that the application for returning resident visa must be supported by sufficient evidence in order to establish his clear intention to maintain his US residency despite a lengthy absence. Proof of this intention may include a valid driver’s license from the State where he is a resident, a showing that the extended visit was caused by unforeseen circumstances, payment of U.S. income taxes, among others.

Studying Outside the United States

Despite lengthy absences of green card holders who happen to be students getting their education outside the US, applications for returning resident visas for this class of permanent residents are likely to be approved. Temporary purpose is not necessarily determined by lapse of time. As long as there is a projected time of return, the green card holder will not be charged with abandonment.

For students studying outside the United States, proof that a degree will be obtained within a definitive time frame is important in obtaining the returning resident visa to establish intent to go back to the United States after completion of study. Consular officers will consider evidence of family still living in the United States and a showing that the green card holder student returns to United States at the end of each academic term to rebut a presumption of abandonment.

Jeremiah’s Case

Since Jeremiah traveled back to the United States without a re-entry permit or a returning resident visa, proof of non-abandonment of status must now be established before the immigration court.  Jeremiah would be covered by the same Department of State guidelines and required to take on the same evidentiary burdens that a returning resident would be required to do before the consular officer at the U.S. Embassy, only this time, he would have to do so before an immigration judge.

Remember that an immigrant’s residence status is not a right but simply a privilege. As such, it may be revoked if there is a failure to appropriately contest the issue of abandonment.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)