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How might falsus in uno falsus in omnibus apply to eb5 applications and petitions


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How might falsus in uno falsus in omnibus apply to eb5 applications and petitions

  1. 1. How Might Falsus In Uno, Falsus In OmnibusApply To E-5 Applications and Petitions?By Joseph P. Whalen (May 20, 2013)This is a follow-up article to an earlier more general article1 of thesame date. To briefly reiterate the definition of this Latin phrasedmaxim, falsus in uno, falsus in omnibus means false in one thing,false in everything, and allows one verified falsehood to contaminatethe remaining evidence whether it is oral testimony, documentaryevidence, or both. There are five circumstances where it isinappropriate to invoke this maxim. The following five items areparaphrased from the original. See Siewe v. Gonzales, 480 F.3d 160,170 (2d Cir. 2007) (relying on the maxim to find that once an IJconcludes that a document is false, he or she is “free to deem suspectother documents (and to disbelieve other testimony) that depend forprobative weight upon [the applicant’s] veracity”).The five circumstances in which the assumption that when the alien’sevidence (both oral and documentary) is false in one thing, they areprobably false in all things is inapplicable are:1) Alternate evidence is independently corroborated as true.2) False statements were made and phony documents were created inorder to escape persecution. I might add to escape war, poverty,and/or starvation.3) The falsehood is immaterial and irrelevant to the matter at handUNLESS, it bolsters a finding of overall lack of credibility there beingsome additional falsehood(s) either oral or documentary or both.4) Falsehood was based upon fear of the U.S. authority to which it wasmade. I might add that, initially and early on in the U.S., thefalsehood was due to cultural misunderstanding.5) The alien did not know and had no reason to know that somethingwas false. Example: an older relative such as a sibling or parent oreven grandparent. Additionally, in the refugee context where aperson was born in a camp, the workers who kept the records couldhave made a mistake.This essay seeks to ask but not necessarily answer three questions.They are: 1) Does falsus in uno, falsus in omnibus ever apply to theimmigration benefits context?; 2) If yes, how does this maxim apply?1 See:
  2. 2. and; 3) If it applies at all, how would it apply within the EB-5Immigrant Investor context, including both Regional Centers andindividual investors?INA § 291 [8 USC § 1361] states:Burden of proof upon alienWhenever any person makes application for a visa or any other documentrequired for entry, or makes application for admission, or otherwise attemptsto enter the United States, the burden of proof shall be upon such person toestablish that he is eligible to receive such visa or such document, or is notinadmissible under any provision of this chapter, and, if an alien, that he isentitled to the nonimmigrant, immigrant, special immigrant, immediaterelative, or refugee status claimed, as the case may be. If such person fails toestablish to the satisfaction of the consular officer that he is eligible to receive avisa or other document required for entry, no visa or other document requiredfor entry shall be issued to such person, nor shall such person be admitted tothe United States unless he establishes to the satisfaction of the AttorneyGeneral …[or Secretary of Homeland Security]… that he is not inadmissibleunder any provision of this chapter. In any removal proceeding under part IVof this subchapter against any person, the burden of proof shall be upon suchperson to show the time, place, and manner of his entry into the United States,but in presenting such proof he shall be entitled to the production of his visa orother entry document, if any, and of any other documents and records, notconsidered by the Attorney General to be confidential, pertaining to such entryin the custody of the Service. If such burden of proof is not sustained, suchperson shall be presumed to be in the United States in violation of law.That covers visas, entry, and removal proceedings therefore would beapplicable to the I-526, Immigrant Petition by Alien Entrepreneurand to a degree the I-829, Petition by Entrepreneur to RemoveConditions which has additional burden specifications elsewhereunder INA § 216A [8 USC § 1186b]. That section deals with the liftingof conditions from status and any initiation of Removal Proceedings.(b) Termination of status if finding that qualifying entrepreneurshipimproper* * * * *(2) Hearing in removal proceedingAny alien whose permanent resident status is terminated under paragraph(1) may request a review of such determination in a proceeding to remove thealien. In such proceeding, the burden of proof shall be on the Attorney Generalto establish, by a preponderance of the evidence, that a condition described inparagraph (1) is met.
  3. 3. * * * * *(c) Requirements of timely petition and interview for removal ofcondition* * * * *(2) Termination of permanent resident status for failure to filepetition or have personal interview* * * * *(B) Hearing in removal proceedingIn any removal proceeding with respect to an alien whose permanentresident status is terminated under subparagraph (A), the burden of proofshall be on the alien to establish compliance with the conditions ofparagraphs (1)(A) and (1)(B).* * * * *(3) Determination after petition and interview* * * * *(D) Hearing in removal proceedingAny alien whose permanent resident status is terminated undersubparagraph (C) may request a review of such determination in aproceeding to remove the alien. In such proceeding, the burden of proof shallbe on the Attorney General to establish, by a preponderance of the evidence,that the facts and information described in subsection (d)(1) of this sectionand alleged in the petition are not true with respect to the qualifyingcommercial enterprise.What about the I-924, Application For Regional Center Under theImmigrant Investor Pilot Program ?Perhaps the generally applicable provisions are the best route to ouranswer?INA § 287 [8 USC §1357] covers:Powers of immigration officers and employees* * * * *(b) Administration of oath; taking of evidenceAny officer or employee of the Service designated by the Attorney General,whether individually or as one of a class, shall have power and authority toadminister oaths and to take and consider evidence concerning the privilege ofany person to enter, reenter, pass through, or reside in the United States, orconcerning any matter which is material or relevant to theenforcement of this chapter and the administration of the Service;and any person to whom such oath has been administered, (or who
  4. 4. has executed an unsworn declaration, certificate, verification, orstatement under penalty of perjury as permitted under section 1746 oftitle 28) under the provisions of this chapter, who shall knowingly orwillfully give false evidence or swear (or subscribe under penalty ofperjury as permitted under section 1746 of title 28) to any falsestatement concerning any matter referred to in this subsection shallbe guilty of perjury and shall be punished as provided by section 1621of title 18.Regardless of the statutory source, it is safe to say that anyoneseeking any benefit under the Immigration and Nationality Act is theone with the burden of proof. When attempting to meet that burdenif anyone lies, then they can get in deep trouble. That said, when canthe DHS (in this situation, USCIS) invoke falsus in uno, falsus inomnibus? I ask because of the severe consequences that may comewith such a determination. Also, in the realm of EB-5 ImmigrantInvesting, there is great uncertainty inherent anyway. Lastly, thecomplexity makes it quite easy to make an inadvertent error or onemight just simply be confused by.I would like to see something definitive from USCIS and/or AAOeither through “Final Guidance”, regulation, and/or Precedent.When is it fake, and when is it only a mistake? I have seen some naïvemistake and some gross errors in my day. However, I have also seenblatant obfuscation (bull crap). As the at least Second Circuit andprobably other Circuits have stated:“….. Falsus in uno is a natural and instinctive tool of the factfinder, like acarpenters hammer or plumbers wrench. Here, the IJ found that theletter purporting to appoint Siewe as campaign director was "a fraudulentdocument," and accordingly rejected Siewes explanations for otherapparent inconsistencies and debated facts in his testimony. This finding,supported by substantial evidence, casts doubt on all of Siewesuncorroborated evidence, and supports other inferences drawn by the IJ.”Siewe, supra at ¶75 [Underline Added]Let’s start a discussion on this topic and see where it leads us, OK?That’s my two cents, for