In previous articles I have addressed the issue of Filipino’s who have lied in order to immigrate to the United States. These Filipinos are deportable and may have to return to the Philippines unless they obtain a waiver of the fraud. Generally, this waiver is available only to individuals who have spouses, parents or children who are United States Citizens or lawful permanent residents. If an individual is eligible for the waiver, the immigration judge may grant the waiver “in the exercise of discretion” if the person applying for the waiver is of good moral character. Currently, the immigration judge cannot consider the initial fraud in determining whether the waiver should be granted. In other words, if your fraudulent entry is the only thing you have done wrong, the immigration judge must conclude that you have good moral character and, in most cases, must also grant your fraud waiver application.
This waiver has proven invaluable to Filipinos, many of whom immigrated to the United States by claiming they were single, even though they were actually married. However, I am currently handling a Supreme Court case which may modify the fraud waiver.
In INS vs. Yang, the Supreme Court will determine what acts of fraud may be considered by the immigration judge. Typically, when an alien lies in order to immigrate to the U.S., he or she will repeat that same lie at least twice, and perhaps several times. He or she will have to lie both to the Consular Officer in the Philippines and to the INS officer at the port of entry. In addition, many married Filipinos in this situation will also claim that they are single on subsequent visa petitions they file on behalf of their family, and on their naturalization applications. They may also have submitted one or more fraudulent documents to the INS either here or in the Philippines in order to conceal their earlier marriage.
I have always taken the position that these acts are all part of the same initial fraud and therefore cannot be considered by the INS. So far, the Ninth Circuit Court of Appeal has agreed with this reasoning and this has been the law in the states within the Ninth Circuit’s jurisdiction, including California. In INS vs. Yang, the INS is asking the Supreme Court to change this rule and allow the INS to deny applications for the waiver if the alien has repeated the misrepresentation in a visa petition or naturalization application. I will be traveling to Washington D.C. in October of this year to argue against this change in front of the Supreme Court.
Because of the Yang case, the future of the fraud waiver is uncertain for many aliens. However, most aliens will remain unaffected. If you have misrepresented your marital status, or some other fact, in order to immigrate, but have not yet filed a naturalization application or any visa petitions, it is likely that your waiver application will be unaffected by the outcome of Yang. If you are in this situation and you are thinking of becoming naturalized or petitioning your family members, you must consult with a lawyer experienced in this area before the application is filed. Proper preparation at this stage can vastly improve your chances in obtaining a fraud waiver later on.
Even if you have continued the misrepresentation in subsequent applications or petitions, obtaining a fraud waiver may still be possible, even if the Supreme Court sides with the INS; this column only summarizes the broader issues involved and is not intended to explain all the issues and nuances involved in a Supreme Court case. If you or someone you know has made a misrepresentation, either about their marriage or some other fact, in order to immigrate, the case should be carefully evaluated by an attorney experienced in this area. Obtaining a fraud waiver has the effect of “wiping the slate clean” and means that you will never have to worry about the INS again. It seems to me that such a benefit is worth a little investigation.
