Fraud and Misrepresentation in the Immigration Process - Case Law Update
Any applicant that obtains a benefit under the Immigration and Nationality Act (INA) either through fraud or willful misrepresentation may be found inadmissible.
Very recently, an immigration judge denied an applicant’s adjustment of status due to a willful misrepresentation of a material fact to procure an immigration benefit. Matter of Mavis Nyarko MENSAH, 28 I&N Dec. 288 (BIA 2021). The applicant, Ms. Mensah, was from Ghana. Ms. Mensah was admitted to the U.S. as a B-2 visa holder. She married her first husband after overstaying her visa. Based on her marriage, the USCIS granted her application for conditional permanent resident state. 18 U.S.C. §1186a(a)(1). The couple filed a joint Petition to Remove Conditions – Form 751 with the USCIS pursuant to 216(c)(1)(A) of the INA Act. At the joint interview, the Director determined the testimony provided failed to establish the marriage was entered in good faith.
Essentially, the Director found that the evidence did not support the claim that Ms. Mensah resided with her husband in the same household during their marriage. As support, the Director cited the discrepancy with her tax returns listing a different address from what she claimed as the marital address. There was other evidence demonstrating that the marriage was not in good faith that supported the denial of the Joint Petition. Ms. Mensah was immediately placed in removal proceedings and she divorced her husband.
Ms. Mensah remarried during her removal proceedings. She was granted another approved petition that she used to seek another adjustment of status. The Immigration Judge denied the application for adjustment of status because “she failed to demonstrate that she is not inadmissible under section 212(a)(6)(C)(i) of the [INA] Act, because she willfully misrepresented the bona fides of her first marriage at her … interview before the USCIS.” 28I&N Dec. 288, 290 (emphasis added).
Section 212(a)(6)(C)(i) states that “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure a visa…or admission to the United States or other benefit provided under this Act is inadmissible.” Id. at 293. Fraud or willful misrepresentation can be done by way of presentation orally or written to an official of the United State government. Matter of Y-G, 20 I&N Dec. 794, 796 (BIA 1994). It need not be limited to “false testimony,” it is willful if it is “deliberately made with knowledge of … falsity.” Matter of A.J. Valdez and Z. Valdez, 27 I&N Dec. 496, 498 (BIA 2018). The information is material if it has the potential to affect the final decision by the arbiter. Kungys v. Unites States, 485U.S. 759, 780 (1988).
Ms. Mensah willfully misrepresented that she was residing with her first husband which contradicted testimony in her interview and removal proceedings of a different address. The immigration judge’s determination was that her various explanations of residency and physical address were unpersuasive and inconsistent and thereby a willful misrepresentation of fact. See Sections 212(a)(6)(C)(i), 240(c)(2)(A), (4)(A)(i), 245(a) of the INA; 8 C.F.R. sect.1240.8(d). Additionally, her misrepresentation was material. Her application was denied and removal was ordered.
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This Wandro & Associates Update is intended to inform firm clients and friends about legal developments, including recent decisions of various courts and administrative bodies. Nothing in this Practice Update should be construed as legal advice or a legal opinion, and readers should not act upon the information contained in this Update without seeking the advice of legal counsel.