SusanPai

This is General Information Provided for the Benefit of this Forum. This is not specific legal advice. In fact, I consider this to be simple common sense.

A GOOD RULE OF THUMB

DON'T LIE. If you've been convicted for shoplifting, you and your attorney can deal with this. However, if you lie about it on your immigration forms or to an immigration official, it becomes a completely different matter. What is a relatively simple issue (shoplifting) now must be dealt with as potential immigration fraud. Remember, an adjudication of immigration fraud can lead to a permanent bar to immigration benefits. Also, your attorney can not represent you to the best of her or his ability if you are not 100% truthful with her or him.


TEST FOR MATERIALITY

The test of materiality is not whether the false statements in fact influenced immigration officials to grant a visa, but whether the false statement had a natural tendency to influence the officials' decision. Materiality under 18 U.S.C. § 1001 requires that the misstatement be relevant to a fact that is a precondition to the grant of the particular benefit sought. Thus, while a misstatement that relates to an ancillary, non-determinative fact is not material, a misstatement that would have a natural tendency to affect a decision to issue a document is material. Excerpt from 3 Immigration Law Service 2d § 17:173 (2009) citing Robles v United States, 279 F2d 401 (1960, CA9 Ariz), cert den 365 US 836, 5 L Ed 2d 745, 81 S Ct 750, reh den 365 US 890, 6 L Ed 2d 201, 81 S Ct 1032; U.S. v. Dedhia, 1998 WL 19912 (6th Cir. 1998); United States v Naserkhaki, 722 F Supp 242 (1989, ED Va).

CONCEALMENT OF MATERIAL FACT

For purposes of the provision dealing with revocation of naturalization, proof of materiality of the misrepresentation or concealment establishes a rebuttable presumption that one who obtained citizenship in a proceeding where he or she made material misrepresentations was disqualified for naturalization, and the burden then shifts to the naturalized citizen to refute the presumption by showing, through a preponderance of the evidence, that the statutory requirement, as to which the misrepresentation had a natural tendency to produce a favorable decision, was in fact met. Excerpt from 3C Am. Jur. 2d Aliens and Citizens §2498.

Observation: The Supreme Court has raised the possibility that the test for materiality of misrepresentations in applications for citizenship may differ from that applicable to false statements in visa applications. A court of appeals has subsequently held that while misrepresentations to immigration officials when securing an immigrant visa must be material to form a basis for denaturalization, the government need not prove that the applicant would not have received a visa if he or she had not made the misrepresentation. The Supreme Court has also raised the possibility that misrepresentations or concealments made in applying for an immigrant visa may render the visa invalid, thereby rendering the person subject to denaturalization under the provision dealing with citizenship that was illegally procured because lawful residence is another requirement of naturalization. Excerpt from 3C Am. Jur. 2d Aliens and Citizens §2498.

Folinskyinla

Hi:

Amen, sister!

I would like to add a point that is often missed by the Immigration Authorities -- there is a difference between "misrepresentation" and "concealment." However, much of the law on "materiality" arose in the denaturalization context involving certain person who, from 1933 to 1945 would have just have killed people like me. [I will admit that my background gives me a somewhat jaundiced eye towards the practitioners of the ideology of National Socialism, but I digress].

It is pretty hard to engage in "concealment" without crossing the line over into "misrepresentation."

So, not only should one avoid "fraud," one should even avoid the hint of the beastie. Of course, this might lead to a long and expensive relationship with a lawyer.

[BTW, I have a case involving a B-2 entry in 19-eighty-7 -- the government claims fraud as such: "You falsely stated you were coming to see your boyfriend. The true fact was that you had a home and job of three years in the United States you were returning to." There is no stated evidence whatsoever to establish that my client did not have a boyfriend. My client was returning to her job in the US, her home in the US, and her boyfriend in the US. Would you believe that the Government has now argued before the court of appeals that the truthfulness of the alleged false statement is immaterial due to the concealment? BTW, we need not discuss our argument that April 15, 1987 and not the same date as June 21, 1987 and that Miami is not Los Angeles. ]

Moral -- you don't want the government people to even think there is fraud involved.

MsElui

Does this affect the general advice given to people who are at POE to only answer specifically the question asked and not to volunteer anything 'material'.

fatbrit

It was also one concern of mine when I read the original post. Although "don't lie" and "tell them everything" are certainly not the same, some readers may interpret it as such and get themselves in hot water, too.

Moreover, it clashes with the #1 rule of criminal law: don't open your mouth except to give your name, rank and serial number without your attorney present.

SusanPai

I don't mean to sound facetious so please do not take this response as such. Don't lie means don't lie. E.g., if you've been arrested for something in the past, don't say or write that you haven't been. And, again, this is not specific advice for any particular case - these are merely general guidelines.

If you're in the middle of a scheduled or impromptu interview with law enforcement or immigration officials and find yourself confused about what to say and how to say it (i.e., you get that "I'm digging myself deeper" feeling), politely stop the interview and say you want to retain counsel. Keep saying you want to talk to an attorney until the interview stops. And, for love of all things holy never sign anything for law enforcement or immigration officials without having had the chance to discuss what you are signing with your attorney.

If you are representing yourself or can not afford an attorney I would follow this general guideline: Answer only the question asked and answer it in as concise a manner as possible ("yes, officer" and "no, officer") -- and, of course, answer truthfully.

Here are some practical general guidelines.

Only identify yourself by name - do not identify anyone else with you or anyone else residing at your home.

If law enforcement or immigration comes to your home, again, verify your name only and say:
"If you do not have a valid warrant, I cannot unlock the door. If you have a valid warrant, slip it under the door."

"I am represented by counsel. Please contact my lawyer at [phone #]."

"If I am detained, I request to contact my attorney immediately. I am choosing to exercise my right to remain silent and the right to not answer your questions. I am also exercising my right to refuse to sign anything until I consult with my attorney."

"I wish to contact an attorney."

meauxna

MrF's famous 'Do you know what time it is?' example.

fatbrit

Euphemisms on lying include being economical with the truth. Indeed, the uniformed brigade are trained to convey the idea that very idea, i.e. if you don't tell them everything, you are lying to them.

Another thing that worries me here is that non-immigrant aliens have very few rights in border areas. Calling for an attorney as, for example, a prospective VWP entrant being given the nth degree is simply not going to work.

SusanPai

The best remedy for such a situation is to be well prepared for such processing upon entry to the U.S. A good immigration attorney should be able to prepare you for primary and secondary processing at the border.

But, let's say you're at the border and you're in pickle. Your choices are (1) to answer questions in a truthful but very concise manner and in doing so irritate Immigration so much that you get yourself turned away and sent back home or (2) to go through secondary or tertiary processing or even detention and a full scale interrogation without assistance of counsel and in doing so, getting yourself possibly turned away and sent back home anyway. But, in this scenario you may have also unwittingly given Immigration something to use against you for the rest of your life. In my opinion, this situation is analagous to getting arrested for a crime. It's not a pleasant experience, but it's much better to get arrested and then acquitted then not to be arrested but later convicted of a crime.

ian-mstm

I'm genuinely curious about this... does a non-US citizen, not on US soil actually have the right to remain silent? or the right to not answer questions? or the right to refuse to sign anything? Does being inside a US Embassy/Consulate constitute being on US soil? Is the guy who interviews you for a visa considered a law enforcement agent?

Ian

SusanPai

The most important sources of legal protection against governmental discrimination or abuse are the Fifth and Fourteenth Amendments to the Constitution. They provide that no person shall be deprived of life, liberty or property without due process of law and that no person shall be deprived of the equal protection of the laws. Thus, the right to due process, equal protection and the other fundamental rights that are encompassed by these principles apply to all persons in the United States, including non-citizens. -American Civil Liberties Union.

Folinskyinla

Hi:

I give the same advice as Susan. I tell them that the ONLY thing they are required to disclose is their name and nothing else. Otherwise they should keep saying "I want my lawyer" or "I want to see the judge" followed by "I want my lawyer." I also tell them that not to trust ANYTHING that a DHS employee tells you -- THEY have the right to lie, you don't.

Also, once you say you are foreign born, you just confessed to being in the US illegally until proven otherwise.

If the person gets tired of repeating "I want my lawyer" feel free to talk about the Dodgers or the Lakers.

us-aspirant

Really interesting topic..

What if you are asked whether you plan to apply for GC in future during visa interview for E2 or E3.

Non-immigrant visas and obvious answer is NO. Still many people go there with the intent of migrating...

SusanPai

This topic is soooo serious! Pumpkin Pai reminds you to smile.

Folinskyinla

Hi:

Sigh, you miss the point of "dual intent" -- this term is often misused. The dual intent issue was fought and resolved in the 1980's.

The root of the answer goes to the definition of "immigrant" -- found at 101(a)(15) of the Immigration & Nationality Act -- it is all aliens except for defined categories. Now, section 214(b) presumes that an alien is an "immigrant" unless they establish they are in one of the categories of the exceptions at 101(a)(15).

So, lets take an example of a certain non-citizen [aka "alien"] -- HRH Elizabeth II. Inasmuch as she is not a US Citizen and does not fall within any of the non-immigrant categories, she is an "immigrant" and a lawful one at that! [Please note that the phrase "lawfully admitted for permanent residence" is somewhat different].

Now, most, but not all of the non-immigrant categories have language containing a foreign residence with no intent to abandon same. Among the categories not containing language about a foreign residence are the E, H-1b and L categories. In fact, there are non-immigrant classifications that specifically involve a an intent to immigrate -- the K-1 being the obvious example.

So, on that E-2 example, if the person is asked -- do you intend to immigrate?: it is perfectly OK to say "if the opportunity presents itself I would like that. If not, then I have to leave."

Look, an F-1 does have the home abroad requirement and yet many F-1's come here with the idea of getting that degree and getting EB based immigrant status. This is more difficult, but this is generally considered perfectly fine as long as the intent is a future hope.

Now that B-2 tourist -- no way -- it is a temporary visit for pleasure.

This issue was resolved a long time ago. That said, I will say that many people are confused by the terms of 214(g) which was added in 1990 to make sure that H & L would not be disqualified by a pending labor certificate or I-140 application. This has often been misinterpreted as defining the only visas which allow "dual intent." Although a common misinterpretation, it is still a misinterpretation.

ian-mstm

Okay... this just made me a huge fan! I'm standing down!

Ian