By: Aurora Vega-Buzon, Esq.
Rene, a permanent resident since 2002 is in removal (deportation) proceedings. He arrived in the U.S. on March 7, 2002 on an approved petition filed by his permanent resident mother in 1990 for a single adult child. At 28, he and his girlfriend Gina lived together and had 3 children all born out of wedlock. However, all their children’s birth certificate state Rene and Gina’s “date of marriage” as December 30, 1994. Gina was afraid Rene may not be able to petition for her children if they don’t carry his surname. So, she asked her cousin to get a fake marriage contract from Manila City Hall and she gave a copy of that to the hospital whenever she gave birth.
During his interview at the US Embassy in November 2001, Rene told the Consular Officer he is single and has no children – he was afraid that the Consular Officer will see his children’s birth certificates which all state that he and Gina are married. Rene received his immigrant visa but 2 days before leaving for the U.S., he and Gina were married by a Judge on March 5, 2002. Upon arrival in Los Angeles airport, Rene was again asked by the CBP officer at the port of entry if he is single and if he has any children. Again, he stated he’s single and has no children.
In 2005, Rene and Gina had a big church wedding in Manila also on March 5 (the 3rd year anniversary of their real marriage). In 2008, and without consulting an attorney, he applied for citizenship thinking that he has more than 5 years of permanent residency. In his naturalization application, he stated he and Gina were married on March 5, 2005 (the church wedding) and listed all his 3 children. During his interview, the Interviewing Officer found out that Rene was single when he was interviewed and issued an immigrant visa in November 2001; that he was already married when he arrived in the US in March 2002; that he lied in his application for immigrant visa when he stated he has no children; and that he lied at the port of entry when he stated he’s still single and has no children. Rene’s citizenship application was denied on the ground he never became a permanent resident. Subsequently, Rene received a Notice to Appear that he is removable as an inadmissible alien at the time of his entry. The Government alleges that Rene used an immigrant visa for a single adult child of a permanent resident (F2B) but he was already married and longer entitled to that visa. Thus, Rene is an “inadmissible alien”, and is deportable under Section 237(a)(1)(A) of the Immigration & Nationality Act (INA), which provides: “Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.”
Rene is removable (deportable) as charged because while he was single when he received his immigrant visa (F2B), he was already married when he used that visa to immigrate to the U.S. Section 212(a)(6)(C)(i) of the INA known as the “fraud provision” states “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.”
There is no preference category or immigrant visa for a married child of a permanent resident. Rene’s mother remained a permanent resident and has not applied for U.S. citizenship because she has other approved petitions for her 2 children (Rene’s brothers) who are still waiting for their immigrant visas. She’s afraid that if she becomes a U.S. citizen, her 2 children will wait longer (this is incorrect and she is obviously misinformed, but that will be the subject of another article).
However, being a son of a permanent resident, Rene has an available immigration relief and can “waive” the ground for his removability under INA Section 237(a)(1)(H) – known as the “fraud waiver”. Said Section allows the Attorney General to waive provisions relating to “the removal of aliens within the U.S. on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent for any alien who is the spouse, parent, son, or daughter of a US citizen or permanent resident; and who was in possession of an immigrant visa or equivalent document and was otherwise admissible at the time of such admission.” In Vasquez v. Holder, the 9th Circuit Court of Appeals stated “the effect of the fraud waiver is to transform an individual who enters the U.S. with an invalid immigrant visa to the status of one who entered as a non-preference immigrant, despite the fact that a valid nonimmigrant visa would never have been available to the individual at the time of entry”. The Court also noted that the fraud waiver was enacted as a humanitarian gesture to preserve families in the U.S. with a family member who is either a US citizen or a permanent resident. A waiver of deportation for fraud or misrepresentation under the fraud waiver also operates to waive removal based on the grounds of inadmissibility directly resulting from the underlying fraud or misrepresentation.