CHILD IS “GUILTY” OF PARENTS’ IMMIGRATION CRIME

By Michael J. Gurfinkel, Esq.

            Recently, the Fifth Circuit Court of Appeals ruled that a child must also suffer the consequences of her parent’s immigration fraud or inadmissibility.  Although the “child” in that case was already an adult and a U.S. citizen at the time of the court’s ruling, the U.S. government still sought to have her U.S. passport revoked and the child removed/deported, because she did not have a valid immigrant visa.

            In that case, the child’s father entered the United States in the 80’s as a visitor.  He later became a permanent resident through marriage to a U.S. citizen. The problem was that he claimed that his first wife had died, such that, as a widower, he was able to legally marry the American.

            At age 9, the child was able to immigrate to the U.S. through her father.  In her immigration application, she also stated that her mother had died in 1985.  After the child and her siblings had successfully entered the U.S. and became U.S. citizens, her father divorced his American wife.  Miraculously, his “dearly departed” first wife found new life, and was able to enter the U.S. under an assumed name.   (In other words, she was never really “dead”).  She remarried the child’s father, and he petitioned his first wife for a green card. 

The root of all their problems was when the father claimed his first wife was dead, so that he could marry the American.  All the while, he knew he was still married to his first wife at the time that he married the American second wife.  Instead of taking the proper steps of terminating his first marriage (through annulment or divorce), he took the quick and “easy” way, by claiming she was dead.  Unfortunately, however, by law, since the first wife was alive, then his marriage to the American was void as bigamous. Therefore, he obtained his green card and citizenship through fraud.  The government went after them, and eventually, the father and mother pled guilty to naturalization fraud, had their citizenship revoked and they were removed/deported. 

            The government then went after the children, arguing that since they all obtained their green cards and citizenship through their father’s fraudulent immigration status, the children were also not entitled either to their green cards or U.S. citizenship.  The “child” (who was by now an adult) argued that because she was a minor at the time she immigrated to the U.S., she should not be removed/deported, because she did not know of her parent’s fraud and/or inadmissibility, and that she should not be “guilty” of her parents’ immigration crimes.

            The court disagreed, and held that a parent’s knowledge of the fraud can be imputed (attribute the fault or responsibility) to the child.  Thus, this child was forced to suffer the consequences of her parents’ immigration fraud.

            The lesson to be learned is that when faced with applying for immigration benefits, people have the choice of doing something “right” or “right now,” meaning they can do something correctly, or take quick but often illegal short cuts.  In this particular case, had the father legally terminated his marriage to his first wife (through divorce or annulment), then none of these problems would have arisen.  Instead, he chose the “right now” approach, and decided to obtain his immigration status through fraud.  He kept pushing his luck, until he was discovered.  Not only did he and his wife suffer the consequences, but their children as well.

That is why it is so important that when it comes to something as important as your immigration status, that you seek the advice of a reputable attorney, who can advise you on the “right” way to proceed.

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