Matthew Udall

I just read about an interesting “material misrepresentation” case involving the address one of the joint petitioner’s listed on an I-751. Here is a “very” brief rundown of the facts.

CLPR husband and USC wife. I-751 to remove conditions filed, but CLPR husband listed his address as the same as listed for wife, however they had split up 6 months prior to filing. They hoped to perhaps reconcile and were still in contact.

The CLPR hubby was put into removal proceedings for having procured a benefit by fraud or willfully misrepresenting a material fact. CLPR admits the misrepresentation was willful. Immigration Judge denied CLPRs motion for change of venue and to continue proceedings to permit the wife to testify on his behalf.

When case is a BIA, they affirm the lower Judge’s decision agreeing that CLPRs false representation was a material fact and a removable act, even if the CIS would not have necessarily denied the petition had it known of the separate residence.

Rule (from a denaturalization case): A concealment or misrepresentation is material if it has a natural tendency to influence or was capable of influencing, the decision of the decision-making body to which it was addressed. If materiality is established, a presumption arises against and the burden of persuasion shifts to the subject of the denaturalization proceeding regarding whether he or she is statutorily disqualified and the person may refute the presumption by establishing that he or she did in fact meet the statutory qualifications that the misrepresentation had a tendency to influence.

The CLPR case (I-751 situation) went to the court of appeals, which determined that this was indeed a material misrepresentation. Did the rebuttable presumption and burden shifting rules interpreting the word “procure” apply? (Govt. tried to argue that this only applied in denaturalization cases). Appeals court concluded that in some circumstances the deportation of a permanent resident may be at least as severe as denaturalization.

Appeals court found that had the CIS known the petitioner’s true residence, it would have lead investigators to question the bona fides of the marriage and perhaps even their decision to approve the I-751, and thus a material misrepresentation. Thus the presumption of removability applied.

But the court also found that the immigration judge and the BIA did not give the petitioner an opportunity to rebut the presumption by demonstrating the bona fides of the marriage.

So the court of appeals vacated the BIA’s order in part and remanded the case to the BIA for further processing.

That does not mean the problems are over for this CLPR, but at least he’s not dead in the water yet. All over an address someone put on an I-751.

curiousmelon

Did they have any evidence for their joint life otherwise? Is there a link to that case information?
And as a lawyer what do you think, does that guy have any chances to stay in the USA? If yes, then how?
What service center was it?

Matthew Udall

I searched a minute, and I see there are many, many, MANY old posts where the OP says they are living separately and are now getting ready to file the joint I-171. Wonder how many of them fell into the trap of listing the incorrect address for one of them (to conceal this from the CIS). Wonder if any prolific hobbyists have told others to do this, via PM or e-mail (if so, then they should now do damage control). Below is an example of how this can happen. I'm glad an actual attorney came along to save the day (doubt the prolific hobbyist carries insurance to provide some sort of relief to her client, if injured and warranted)!

http://britishexpats.com/forum/showt...eparated+I-751

Matthew Udall

As a side issue: I've read rulings that simply telling someone how to answer questions on immigration forms is legal advice in nature (involves legal skill and knowledge to know the answer… and I’m not talking about someone finding their own answer I’m talking about those who take it upon themselves the hobby of rendering answers to other people's immigration questions). The case mentioned in the thread, I believe, helps illustrate that point (brown stuff can hit the fan when many would think it's no big deal).

curiousmelon

Thank you,
How about situations where couple lives in different states but not because they are separated but because of school and job situation, but they considere one address in one state as their permament address. Will they still need to disclose that? And how to disclose that? on separate the separate sheet of paper writing why? or just simply put one address, since they are still together just in two different states because of the reasons stated above?

Matthew Udall

Yeah, I saw your posts when I did my search. I'm not your attorney so I can't tell you what to do (and most importantly, I've not had the opportunity to get to know your specific facts by asking questions before rendering an opinion). Sorry.

I can tell you that I've had clients who lived separately for reasons other than the marriage being on the rocks, and I've always spelled that out in my submissions (recall some AOS cases where this applied).

Just curious, did you receive any advice from anybody about how to fill out the I-751 address info in light of your situation? If so, was it back channel (I didn’t see any replies posted publicly that specifically addressed your question about that)?

fatbrit

Personally, I wonder if any proponents of equine bestiality have set up illicit contacts through the email system or PM system on this board, too. If you've done this, please let me tell you now that it is very wrong and you should get professional help now. I don't think you can get insurance against it, though. And I'm not sure whether an attorney would save your day...

curiousmelon

Thank you,
actually I havent received any advice about I-751 address info in my situation, and that is why I was wondering. I guess I wasnt specifically asking about address, just about couple living in two different states. And to be honest I didnt think of it untill I read this article (thank you)
I know that you cant give me any legal advice here without client-lawyer agreement. But what would you suggest your client IF your client was in similar situation like mine?

snowbunny

Looking at the current I-751, it gives "address" and "mailing address" (if different). Many people would interpret this as giving the physical address of residence, and the mailing address if different (eg PO Box).

However, given the vagaries of the definition, what someone fills in as "address" are going to vary. I love how George Bush the Elder claims a hotel room in Houston as his permanent residence. But that's not where he hangs his hat most nights, which is what USCIS seems to want in the "address" section. Or take a college student, who usually has a "campus" address and a "permanent" address.

Part of the problem I have with these forms, like tax forms, is that they are so vague that they require clarification, but there's no one at the government willing to give a definitive answer. Why should citizens employ government workers who are not required to know the rules and regs enough to stand by their statements, and instead put the burden of proof on the citizen to either represent themselves (pro se) or spend money on an accountant or lawyer? Even accountants and lawyers are wrong, and if they are wrong, the government will still penalise the original respondent. It's just that the OR now has someone to *sue* to try to recuperate financial losses.

If the USCIS wants the address where you hang your hat, or where you sleep the majority of the time, then they should be that explicit.

CaliforniaBride

Hehehe. Naughty. But Udall does make a great point. I've succesfully AOS'ed today and I'm grateful to all the information I have received from this board. But I do see people becoming more and more confident about giving their opinion as fact when it's just opinion, or their feeling on the subject. It can be dangerous as the link clearly shows.

CaliforniaBride

He's already told you what he HAS done in similair situations.

Matthew Udall

I recall this coming up an an AOS case or two, but I don't recall it happening in any I-751 cases I've worked on.

CaliforniaBride

So you recommend honesty in both cases, or just in the case of AOS

ramNagab

I have 2 questions here

1 - how did the immigration officer know the wife is residing in a different address ?

2 - As I understand I-751 list only one address for the holder of the conditional GC ? I can not remember that the USC should list address too

Folinskyinla

Hi Matt:

I just read Monter. I had a similar case a few years back and the guy is now a US Citizen. However, there was one little thing that saved his rear end -- unlike Monter, my client never traveled foreign after approval of the I-751. Section 212(a)(6)(C) never came into play.

However, the point I want to emphasize that those lies CAN COME BACK and bite on the rear end, quite hard. My client just lucked out and also had a good lawyer.