COURT RULES THAT ALIENS MUST BE GIVEN THE CHANCE TO "CLEAR THEIR NAME" OF FRAUD
by Michael J. Gurfinkel, Esq.

In a recent case, the Second Circuit Court of Appeal (which is one level below the U.S. Supreme Court) ruled that a person who commits fraud should not be automatically or conclusively ineligible for a visa.   Instead, the person should be given the opportunity or chance to show that their misrepresentation was not "material", and/or that they were otherwise entitled to the visa under the "true facts".   If the alien can successfully "rebut the presumption" of "materiality" or ineligibility, then their fraud would not disqualify them from obtaining their immigration benefit, (such as a visa or green card).

This case could have far-reaching effects for aliens found to have committed fraud, as it means that if the alien can properly package, document, and present their case, they could possibly overcome their fraud ineligibility.

In that particular case, the alien had married a U.S. citizen, but had falsely represented that he and his wife continued to live together, when in fact, they had been separated for months.   The alien was charged with fraud for having "procured a benefit by fraud or by willfully misrepresenting a material fact".   He was then placed in removal proceedings.

Both the Immigration Judge and the BIA concluded that the alien's false representations were "material".   (According to the U.S. Supreme Court, "a concealment or misrepresentation is material if it "has a natural tendency to influence or was capable of influencing, the decision of the decision-making body to which it was addressed".")   In other words, did the misrepresentation influence the immigration officer into granting a particular immigration benefit?

The Court stated, however, that even if a misrepresentation is considered "material", an alien should still be given the chance or opportunity to show that he or she did, in fact, meet the statutory qualifications (or was nevertheless entitled to the visa or other immigration benefit), notwithstanding the misrepresentation.   In this particular case, the Court found that the alien's misrepresentation concerning his living arrangements was "material".   However, he should have been given the opportunity to show that he was nevertheless entitled to the immigration benefit notwithstanding his misrepresentation.   (In that particular case, the alien could have still been eligible by demonstrating that his marriage was bona fide, and that even had he disclosed he was living apart, he would have still qualified for the green card.)

There are so many other instances or situations where people commit fraud or misrepresentations, such as providing a different name, different date of birth, altered education or experience, and the like.   This recent case provides an opportunity for such aliens to possibly "clear their name", by demonstrating eligibility for a green card, by showing that they would have nevertheless been entitled to the immigration benefit under the true information, such as their real name, real date of birth, actual work experience, etc.

Even the State Department has standing instructions that if an alien made a misrepresentation in applying for a visa, they should likewise be afforded the opportunity to demonstrate that they were nevertheless eligible for the visa, or had they told the truth, they would have still qualified for the visa:  

"Once it has been established that a misrepresentation was made in securing a visa, the burden is on the person making the misrepresentation to establish that the facts support eligibility or that, had the consular officer known the truth, a refusal of a visa could not properly have been made. The consular officer shall be receptive to any further evidence the alien may provide in order to ensure that a proper finding has been made." (Emphasis added).

That is why it is important that if somebody has been accused of fraud, they should seek the advice of a reputable attorney, who can evaluate the alleged misrepresentation, whether it is considered material, and possibly assist the alien in "rebutting the presumption" of visa ineligibility.

Back to Main