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Materiality of misrepresentations

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Materiality of misrepresentations

  1. 1. Materiality of Misrepresentations By Joseph P. Whalen (January 20, 2013)Often, aliens seek to enter the United States out of desperation and may lietheir heads off to accomplish this goal. If their underlying motivation is tocommit crimes, terrorism, espionage, or anything other than anoverwhelming desire to rejoin family or seek employment which may inturn be the lifeblood of their family’s survival then they are pretty much outof luck, save a few exceptions not discussed herein. That said, those fewwho are desperate to survive and thrive, MIGHT be eligible for a waiver [I-601] if they otherwise qualify. The waiver for misrepresentation is found at:INA § 212 [8 U.S.C. § 1182] - GENERAL CLASSES OF ALIENS INELIGIBLETO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF (i) (1) The Attorney General [or Secretary of Homeland Security, as applicable] may, in the discretion of the Attorney General [or Secretary of Homeland Security, as applicable], waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General [or Secretary of Homeland Security, as applicable] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien 25b/ or, in the case of a VAWA self-petitioner 6aa/ , the alien demonstrates extreme hardship to the alien or the aliens United States citizen, lawful permanent resident, or qualified alien parent or child. (2) No court shall have jurisdiction to review a decision or action of the Attorney General [or Secretary of Homeland Security, as applicable] regarding a waiver under paragraph (1). FN25b Language inserted by section 1505(c)(1) of Public Law 106-386, dated October 28, 2000. FN 6aa Section 6(a) and (b) of Public Law 109-271, dated August 12, 2006, amended sections (a)(4)(C)(1), (a)(6)(A)(ii), (a)(9)(C)(ii), (g)(1), (h)(1), and (i)(1) of the Act.But what is it that one is seeking to waive through this waiver application[USCIS Form I-601]? Let’s take a closer look at the referenced sectioncross-listed in INA § 212(i). Page 1 of 3
  2. 2. (a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States: * * * * * (6) Illegal entrants and immigration violators.- * * * * * (C) Misrepresentation.- (i) In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.So, the subject waiver is for certain relatives of USCs or LPRs who got a visaor tried to “by fraud or willfully misrepresenting a material fact”. Thewaiver is limited to would-be immigrants who are spouses, sons, or daughtersof the qualifying relative—NOT PARENTS. Note to crackpot anti-immigrationists: there is no fraud and misrepresentation waiver for parentswhich means that there is no such thing as an anchor baby in the INA 212(i)context! Besides, a son or daughter must be 21 years of age or older andqualify to file an I-864 in order to immigrate their alien parents.Back to the matter at hand. How do we define the “misrepresentations” whichmay require a waiver? In 1961, Robert F. Kennedy decided the issue of whatmisrepresentations are to be considered material and established a test for it.Matter of S- and B-C-, 9 I&N Dec, 436 (A.G. 1961)1, held: (1) A misrepresentation under section 212(a) (19) of the Act is material if either: (A) the alien is excludable on the true facts, or (B) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he be excluded. (2) The same test for determining materiality is applicable to misrepresentations involving identity, which are no longer to be accorded a special status. (3) Where it is shown that the aliens misrepresentation choked off a relevant line of inquiry which might have resulted in a proper determination of excludability, the alien has the burden of establishing the true facts and bears the risk that uncertainties resulting from his own obstruction of the inquiry may be resolved against him.1See also: http://www.slideshare.net/BigJoe5/matter-of-s-and-bc-9-in-dec-436-ag-1961(Annotated copy). Page 2 of 3
  3. 3. The key concept from S- and B-C- which made it into the regulations, andremains there, is found at 8 CFR § 103.2(b)(14) and to a lesser degree (15):§ 103.2 Submission and Adjudication of Benefit Requests. (b) Evidence and processing. * * * * * (14) Effect of request for decision. Where an applicant or petitioner does not submit all requested additional evidence and requests a decision based on the evidence already submitted, a decision shall be issued based on the record. Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the benefit request. Failure to appear for required fingerprinting or for a required interview, or to give required testimony, shall result in the denial of the related benefit request. (15) Effect of withdrawal or denial due to abandonment. The USCIS acknowledgement of a withdrawal may not be appealed. A denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen under § 103.5. Withdrawal or denial due to abandonment does not preclude the filing of a new benefit request with a new fee. However, the priority or processing date of a withdrawn or abandoned benefit request may not be applied to a later application petition. Withdrawal or denial due to abandonment shall not itself affect the new proceeding; but the facts and circumstances surrounding the prior benefit request shall otherwise be material to the new benefit request.A material line of inquiry being cut-off by the actions (misrepresentations orfraud) of the alien shifts a heavy burden upon such person to make it goaway. Once such fraud or misrepresentation has been identified, whether asdetected by DHS, DOS, and/or DOJ (other any other source shared withimmigration authorities); or if volunteered by the alien, it will remain aproverbial albatross around the perpetrator’s neck. The U.S. government has aVERY LONG memory and can be VERY unforgiving. The concept ofmateriality and consequences of any misrepresentation apply across ALLcontexts.Since most of my readers are concerned about EB-5, let’s flesh out somescenarios where these issues intersect EB-5. Think back to Victorville RegionalCenter’s Termination. Certain letters were submitted discussing financing andcommitment to the project. These various letters contradicted each other.There was no way they could talk themselves out of that self-inflicted woundto their credibility. Once caught in a lie, a HEAVY BURDEN is placed on theliar to explain things away. If there was ONE bad actor in a group, perhapsthere is a fall-guy, maybe not. Page 3 of 3

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