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Deportation: Fraud Waiver Granted to Permanent Resident

by Carl Shusterman

The surest way to doom your chances to become a permanent resident is to lie on an application for immigration benefits. Fraud creates a bar to admissibility to the U.S.

Yet, strict as they are, the immigration laws allow for waivers to be granted to some persons who obtained permanent residence through fraud or misrepresentation.

Recently, an Immigration Judge granted our client's application to remain in the United States despite a material misrepresentation on his application for a green card. In 1989, the U.S. Embassy in his country issued him a visa to come to the U.S. as a lawful permanent resident. He claimed eligibility to become a lawful permanent resident based on an approved visa petition submitted on his behalf by his mother, a U.S. citizen.

The application was based upon the fact that he was an "unmarried son" of a U.S. citizen. At the time of his immigrant visa interview at the Embassy, he claimed to be unmarried although he was married with two children.

Five years later, he applied for naturalization. The INS conducted an overseas investigation and discovered that he was married prior to immigrating to the U.S.

He was charged with committing fraud and misrepresentation and placed in deportation proceedings before an Immigration Judge. He hired our law firm to represent him in Immigration Court. We filed an application for a "waiver" on his behalf under 237(a)(1)(h) of the Immigration and Nationality Act.

This type of waiver is available to certain sons, daughters, spouses, and parents of U.S. citizens or lawful permanent residents.

In determining whether to grant a waiver, an Immigration Judge must balance the "adverse and favorable" factors in the individual's case.

Adverse factors include:

  1. Nature of the underlying circumstances of the fraud or misrepresentation involved;
  2. Nature, seriousness, and recentness of any criminal record;
  3. Other evidence of bad character or undesirability.
Favorable factors include:
  1. Family ties in the United States;
  2. Residence of long duration in the United States, particularly where it commenced when the individual was young;
  3. Evidence of hardship to individual or family if deportation occurs;
  4. A stable employment history;
  5. Existence of property or business ties;
  6. Evidence of value and service to the community;
  7. Other evidence of the individual's good character.
In our client's case, he is the sole support for his wife and two children who are living in an impoverished third world country. His wife suffered a heart attack two years ago, and is unemployed. Although our client attended a vocational school for automotive training before coming to the U.S., he was unable to get a job there. Since coming to the U.S., he has had numerous jobs. He sends about $200 to $300 a month to his wife and children. His family ties in the U.S. include his mother, sister and three brothers, all of whom are citizens. Other than one misdemeanor shoplifting conviction in 1994, he has not been in trouble with the authorities.

In support of his application for a waiver, we submitted the following documents to the Immigration Judge:

  • Record from the State Bureau of Criminal Identification;
  • Articles regarding the current country and economic conditions in his native country;
  • Letter from a psychologist as to his state of mind;
  • Certified tax returns from the IRS;
  • Money orders and cancelled checks sent to his wife;
  • Employment letter;
  • Medical reports for family members;
  • Naturalization certificates of family members.

Based on this information and his testimony, the Immigration Judge found that if he had to return to his native country, he would be unable to provide for his wife and two children. The Immigration Judge held that his family members in the U.S. would be burdened with providing him with assistance.

The Judge granted his application for a waiver. This enables him to remain in the U.S. and apply for citizenship. After he becomes an American citizen, he will be able to obtain permanent residence for his wife and children.

About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.