DACA 2012 - Deferred Action for Childhood Arrivals

The new Deferred Action for Childhood Arrivals (DACA) Program, which commences August 15, 2012, has already been referred to by several states, attorneys general as a golden opportunity for immigration fraud both by persons who claim to be “immigration consultants” and by applicants attempting to prove eligibility by fraudulent documentation. 

Those who wish to apply for deferred action should be aware that the Department of Homeland Security will require more than colorable proof of eligibility. Evidence of the criteria to be met can include financial records, medical records, school records, employment records and military records. Affidavits will generally not be sufficient except to supplement the records referred to above, and will not be acceptable at all to prove physical presence in the US on June 15, 2012, to prove age on June 15, 2012 or to prove lack of criminal convictions. Some circumstantial evidence can also be used to meet the burden of proof.

The opinion in the recent case of Sandoval v. Holder, 2011 WL 2314728 (8 Cir., 2011) has raised two very interesting questions on the issue of  what constitutes a false claim to US citizenship, which once made is a permanent ground of inadmissibility to the US. This bar can never be waived.

            The first question is the age of capacity to commit fraud. The alien here was just sixteen when she showed her sister’s birth certificate in an attempt to enter the US from Mexico. The BIA held that she had made the false claim to US Citizenship and was forever barred.

            The Court of Appeals reversed and remanded the case to the BIA to decide whether a sixteen-year-old had the capacity to commit a fraud. It is important to note that at common law (which the BIA follows on matters involving fraud) it is impossible to commit a fraud before age seven. It is possible to commit a fraud from ages seven to fourteen, but there is a presumption against it. It is possible to commit a fraud from ages fourteen to twenty one, and there is a presumption of capability. 

             The second question on remand was whether the alien had “timely” retracted her claim when confronted by CBP at the port of entry. See 9FAM 40. 63 N4.6.

Fraud Under U.S. Immigration Laws

It is important to understand the difference between the fraud and misrepresentation provisions governing applications for lawful permanent residence and those governing naturalization. As was pointed out in the recent case of Khawantmi v Department of Homeland Security, 2011 WL 577330 (D. Conn. 2011), these can lead to opposite results.

In this case, an alien was denied administrative naturalization upon two grounds: (1) that he presented “false testimony” in his naturalization proceedings because he did not disclose the existence of a “step-child,” and (2) that his legal permanent residency was “unlawfully procured” because it was obtained through a fraudulent marriage.

The district court, upon review of the administrative naturalization denial, held that the marriage was originally entered into with the intent to share a marital life together. This meant that the lawful permanent residence of the applicant was not “unlawfully procured,” despite the birth of an adulterine child during the marriage. On the other hand, the failure of the applicant to disclose the existence of the “step-child” (the child of his wife by another man), was held to be a deliberate attempt to mislead the government and to avoid further inquiry into the bona fides of the marriage.

The good moral character requirement of Sec. 101(f) of the INA for naturalization does not require any materiality, so that any misrepresentation, however immaterial, with the subjective intent to obtain an immigration benefit, will prevent a showing of good moral character. A misrepresentation in an application for lawful permanent residency, however, must be material to the decision in order for an alien to incur the penalty of perpetual inadmissibility under Sec. 212(a)(6)(C) of the Act.

Welcome!

Welcome to my new blog!

I will be posting my thoughts on America's confusing immigration law.  My focus will be on fraud under U.S. immigration law.  If you have any questions, please feel free to email me.

Mark