What's the difference between misrepresentation and material misrepresentation?
Nov 25th 2006, 11:09 pm
#1
BE Enthusiast
Thread Starter
Joined: Dec 2005
Posts: 327
What's the difference between misrepresentation and material misrepresentation?
I read these in one of the forums, what's the difference between just a "misrepresentation" and "material misrepresentation"? And what could be considered as a material misrepresentation?
Nov 26th 2006, 1:43 am
#2
Guest
Posts: n/a
Re: What's the difference between misrepresentation and material misrepresentation?
To start off on the easy one: a material misrepresentation concerns
misrepresenting material facts. Such as stating that you have a job,
where it can be factually proven you don't have one. A material fact is
in that case something that is not open to intepretation or ambigious.
When you claim to enter solely for a holiday trip, and then you stick
around, get a job, wife and kids, you might have misrepresented your
non immigrant intent. This is not a material fact as a thing as intent
itself (not additional evidence that might give your intent away) is
not something that can be established as being factual.
So any misrepresentation that deals with factual statements that can be
measured to be true or false are material misrepresentations. These are
the absolute no-no issues when it comes to the USCIS.
On Nov 25, 7:09 pm, curiousmelon <member45935@british_expats.com>
wrote:
> I read these in one of the forums, what's the difference between just a
> "misrepresentation" and "material misrepresentation"? And what could be
> considered as a material misrepresentation?
>
> --
> Posted viahttp://britishexpats.com
misrepresenting material facts. Such as stating that you have a job,
where it can be factually proven you don't have one. A material fact is
in that case something that is not open to intepretation or ambigious.
When you claim to enter solely for a holiday trip, and then you stick
around, get a job, wife and kids, you might have misrepresented your
non immigrant intent. This is not a material fact as a thing as intent
itself (not additional evidence that might give your intent away) is
not something that can be established as being factual.
So any misrepresentation that deals with factual statements that can be
measured to be true or false are material misrepresentations. These are
the absolute no-no issues when it comes to the USCIS.
On Nov 25, 7:09 pm, curiousmelon <member45935@british_expats.com>
wrote:
> I read these in one of the forums, what's the difference between just a
> "misrepresentation" and "material misrepresentation"? And what could be
> considered as a material misrepresentation?
>
> --
> Posted viahttp://britishexpats.com
Nov 26th 2006, 8:44 am
#3
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: What's the difference between misrepresentation and material misrepresentation?
Originally Posted by curiousmelon
I read these in one of the forums, what's the difference between just a "misrepresentation" and "material misrepresentation"? And what could be considered as a material misrepresentation?
"Misrepresentation" and "materiality" are two different things. I make this comment because I've worked on some cases where I've seen the two concepts conflated in making findings of "material misrepresenation."
The reason for this conflation is a difference between the law of denaturalization and that of immigration. On the immigration side of the house, there has to be a misepresentation and it has to be material. On the other hand, for denaturalization, the simple withholding of a "material" fact is grounds for denaturaliztion.
The denaturalization cases have made their way to the Supreme Court several times and many times in the Courts of Appeal in regards to Nazis, Communists, and Mafioso. So there is a large body of law on "materiality."
Nov 26th 2006, 6:03 pm
#4
Forum Regular
Joined: Jun 2005
Posts: 234
Re: What's the difference between misrepresentation and material misrepresentation?
I have a question here, please advise,
me and my USC spouse filed joint I-751 for me. But the thing is that he (USC) currently resides on the East Coast, and I am in the West Coast, the reason is that I attend school here, and he goes to school and works there, BUT we are planning to move in together as soon as we get our education (and be able to apply for better jobs).
When we filed our I-751, we put the address where I (perm.resident) live, because eventually we are planning to live in the West Coast, and we consider this address as our perm. address. All our joint bills, statements and everything else comes to that address. We are very much in love with each other, and we consider this our current situation as a temp. one.
Would this be considered as a material misrepresentation?
We were reading MONTER v. GONZALES, and from what we've understood, Monter filed joint I-751 even though him and his wife were separated at that time (planning to get divorced, I guess), and they put one address for both of them on their I-751, even they werent together anymore.
But me and my hubby are together and in love, it's just we arent residing at the same residence because of education/work. What do you think should we do? Should we just leave it as it is, or should we file address change for the sponsor?
me and my USC spouse filed joint I-751 for me. But the thing is that he (USC) currently resides on the East Coast, and I am in the West Coast, the reason is that I attend school here, and he goes to school and works there, BUT we are planning to move in together as soon as we get our education (and be able to apply for better jobs).
When we filed our I-751, we put the address where I (perm.resident) live, because eventually we are planning to live in the West Coast, and we consider this address as our perm. address. All our joint bills, statements and everything else comes to that address. We are very much in love with each other, and we consider this our current situation as a temp. one.
Would this be considered as a material misrepresentation?
We were reading MONTER v. GONZALES, and from what we've understood, Monter filed joint I-751 even though him and his wife were separated at that time (planning to get divorced, I guess), and they put one address for both of them on their I-751, even they werent together anymore.
But me and my hubby are together and in love, it's just we arent residing at the same residence because of education/work. What do you think should we do? Should we just leave it as it is, or should we file address change for the sponsor?
Nov 26th 2006, 6:59 pm
#5
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: What's the difference between misrepresentation and material misrepresentation?
Originally Posted by bantik2005
I have a question here, please advise,
me and my USC spouse filed joint I-751 for me. But the thing is that he (USC) currently resides on the East Coast, and I am in the West Coast, the reason is that I attend school here, and he goes to school and works there, BUT we are planning to move in together as soon as we get our education (and be able to apply for better jobs).
When we filed our I-751, we put the address where I (perm.resident) live, because eventually we are planning to live in the West Coast, and we consider this address as our perm. address. All our joint bills, statements and everything else comes to that address. We are very much in love with each other, and we consider this our current situation as a temp. one.
Would this be considered as a material misrepresentation?
We were reading MONTER v. GONZALES, and from what we've understood, Monter filed joint I-751 even though him and his wife were separated at that time (planning to get divorced, I guess), and they put one address for both of them on their I-751, even they werent together anymore.
But me and my hubby are together and in love, it's just we arent residing at the same residence because of education/work. What do you think should we do? Should we just leave it as it is, or should we file address change for the sponsor?
me and my USC spouse filed joint I-751 for me. But the thing is that he (USC) currently resides on the East Coast, and I am in the West Coast, the reason is that I attend school here, and he goes to school and works there, BUT we are planning to move in together as soon as we get our education (and be able to apply for better jobs).
When we filed our I-751, we put the address where I (perm.resident) live, because eventually we are planning to live in the West Coast, and we consider this address as our perm. address. All our joint bills, statements and everything else comes to that address. We are very much in love with each other, and we consider this our current situation as a temp. one.
Would this be considered as a material misrepresentation?
We were reading MONTER v. GONZALES, and from what we've understood, Monter filed joint I-751 even though him and his wife were separated at that time (planning to get divorced, I guess), and they put one address for both of them on their I-751, even they werent together anymore.
But me and my hubby are together and in love, it's just we arent residing at the same residence because of education/work. What do you think should we do? Should we just leave it as it is, or should we file address change for the sponsor?
I just read Monter, which was from the Second Circuit [New York & Connecticut] in 2005. I note that they cite to the Kungys case -- which is one of the mother cases from the Supremes on "materiality" in the denaturalization context.
It should be noted that Monter made a big mistake -- he traveled after having the condition removed. I had a case where there was an actual misrepresentation on the I-751 that the couple was living together, when in fact they were not. Howver, a false statement on an immigration application after admission to LPR is not a ground of "deportability" but IS a ground of "inadmissability." The fact that there was a misrepresentation was not an issue at all in the case -- the former INS tried it on the ground that there had been no valid marriage from its inception. As a bit of strategy, the misprepresentation was a crime so it allowed us to take the 5th, which is normally not allowed in Immigration cases. [BTW, my client did not travel foreign until he was safely in possession of a US Passport].
There are several defenses to materiality -- one of which is "would the true facts have had an adverse effect" and "if blocking the true facts cut off a relevant line of inquiry that would have lead to a denial."
Do note that the Monter court sent it back to afford him an opportunity to assert his defense.
Nov 26th 2006, 7:56 pm
#6
Forum Regular
Joined: Jun 2005
Posts: 234
Re: What's the difference between misrepresentation and material misrepresentation?
What do you mean that Monter made a mistake travelling after having the condition removed? He wasnt allowed to?
Also, about that case you've had, were they together though, even they didnt live together?
thanks
Also, about that case you've had, were they together though, even they didnt live together?
thanks
Originally Posted by Folinskyinla
Hi:
I just read Monter, which was from the Second Circuit [New York & Connecticut] in 2005. I note that they cite to the Kungys case -- which is one of the mother cases from the Supremes on "materiality" in the denaturalization context.
It should be noted that Monter made a big mistake -- he traveled after having the condition removed. I had a case where there was an actual misrepresentation on the I-751 that the couple was living together, when in fact they were not. Howver, a false statement on an immigration application after admission to LPR is not a ground of "deportability" but IS a ground of "inadmissability." The fact that there was a misrepresentation was not an issue at all in the case -- the former INS tried it on the ground that there had been no valid marriage from its inception. As a bit of strategy, the misprepresentation was a crime so it allowed us to take the 5th, which is normally not allowed in Immigration cases. [BTW, my client did not travel foreign until he was safely in possession of a US Passport].
There are several defenses to materiality -- one of which is "would the true facts have had an adverse effect" and "if blocking the true facts cut off a relevant line of inquiry that would have lead to a denial."
Do note that the Monter court sent it back to afford him an opportunity to assert his defense.
I just read Monter, which was from the Second Circuit [New York & Connecticut] in 2005. I note that they cite to the Kungys case -- which is one of the mother cases from the Supremes on "materiality" in the denaturalization context.
It should be noted that Monter made a big mistake -- he traveled after having the condition removed. I had a case where there was an actual misrepresentation on the I-751 that the couple was living together, when in fact they were not. Howver, a false statement on an immigration application after admission to LPR is not a ground of "deportability" but IS a ground of "inadmissability." The fact that there was a misrepresentation was not an issue at all in the case -- the former INS tried it on the ground that there had been no valid marriage from its inception. As a bit of strategy, the misprepresentation was a crime so it allowed us to take the 5th, which is normally not allowed in Immigration cases. [BTW, my client did not travel foreign until he was safely in possession of a US Passport].
There are several defenses to materiality -- one of which is "would the true facts have had an adverse effect" and "if blocking the true facts cut off a relevant line of inquiry that would have lead to a denial."
Do note that the Monter court sent it back to afford him an opportunity to assert his defense.
Nov 27th 2006, 7:30 am
#7
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: What's the difference between misrepresentation and material misrepresentation?
Originally Posted by bantik2005
What do you mean that Monter made a mistake travelling after having the condition removed? He wasnt allowed to?
Also, about that case you've had, were they together though, even they didnt live together?
thanks
Also, about that case you've had, were they together though, even they didnt live together?
thanks
I used "mistake" in the sense that his travel foreign was the last item for invoking removability. Had he not traveled foreign after making the misrepresentation, he would not have been removable for his misrepreentation -- that is all.
As to the case I tried, we'll have to go with the finding of the Immigration Judge -- "The marriage may have been quite 'unconventional' but the Government failed to prove fraud" and we'll leave it at that. By the way, this was from a very "conservative" IJ.
Nov 27th 2006, 2:59 pm
#8
Forum Regular
Joined: Jun 2005
Posts: 234
Re: What's the difference between misrepresentation and material misrepresentation?
Thank you, Mr.Folinskyinla
Originally Posted by Folinskyinla
Hi:
I used "mistake" in the sense that his travel foreign was the last item for invoking removability. Had he not traveled foreign after making the misrepresentation, he would not have been removable for his misrepreentation -- that is all.
As to the case I tried, we'll have to go with the finding of the Immigration Judge -- "The marriage may have been quite 'unconventional' but the Government failed to prove fraud" and we'll leave it at that. By the way, this was from a very "conservative" IJ.
I used "mistake" in the sense that his travel foreign was the last item for invoking removability. Had he not traveled foreign after making the misrepresentation, he would not have been removable for his misrepreentation -- that is all.
As to the case I tried, we'll have to go with the finding of the Immigration Judge -- "The marriage may have been quite 'unconventional' but the Government failed to prove fraud" and we'll leave it at that. By the way, this was from a very "conservative" IJ.
Nov 27th 2006, 5:01 pm
#9
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: What's the difference between misrepresentation and material misrepresentation?
Originally Posted by bantik2005
Thank you, Mr.Folinskyinla
By the way, I don't want to imply that a person who lied on the I-751 would not be deportable due to the lie -- its just that he would not be deportable "per se" for having lied. I can imagine several ways on how to frame the charging document -- I just don't care to educate DHS on how to do it.
I find it amusing, in the criminal law arena, criminal charges are filed by the prosecuting ATTORNEY -- it is not uncommon to see a police arrest for some charge and the disposition is a "DA reject." In the immigration field, it is the enforcement agencies that prepare and file the charging document, usually untouched and unseen by a government attorney. This often makes for rocky starts to removal proceedings if the alien's attorney is the least bit agressive and challenges the charging document. [I have a friend who always challenges the charging document -- "You never know when they have made a mistake or are unable to prove their case." And the doctrines of "res judicata" and "collateral estoppel" can have some mighty interesting consequences].
