On August 23, the Immigration and Customs Enforcement (ICE) agency issued a new directive in favor of the use of discretion and more consideration in handling cases of undocumented parents of American citizens. This is a response to the immigrant outcry against the indiscriminate deportation and removal of undocumented parents—even when the consequences for their minor children could include foster care, extended family care, neglect or abandonment.
While the change in guidelines allow a more sensible way of addressing this problem, questions remain on how the directive will be applied in specific situations. What options are now available to enable parents who were deported to return to the United States? What if there was a fraud and misrepresentation issue in the past?
For example, single-mom Elizabeth entered the US in 2005, leaving her daughter, Sue, in the Philippines. Elizabeth exceeded her authorized stay in the US. She took whatever odd jobs were available to her to be able to send money with some regularity back to the Philippines for Sue’s education.
In 2008, Elizabeth got married to Jonas, a US citizen. A petition was filed by Jonas for Elizabeth. Elizabeth got her green card but after a few months, Jonas abandoned her to live with another woman. Elizabeth decided to depart voluntarily back to the Philippines.
Sue finished college and graduated with a degree in engineering. She was petitioned by a US employer and obtained a green card and eventually US citizenship. She filed a petition for Elizabeth to return to the US and live with her.
Visa denied
The I-130 visa petition was approved but when Elizabeth appeared at the US Embassy consular section for her immigrant visa interview, her visa was denied. According to the consular officer, Elizabeth committed marriage fraud when she married Jonas.
Elizabeth was disheartened about the consular officer’s finding. Her relatives were all in California and she yearned to be reunited with her family. She knew that she had a genuine relationship with Jonas and that she never engaged in marriage fraud. She contacted Jonas and discovered that it was Jonas’ girlfriend who provided the information that Jonas was in a fixed marriage. She alleged that Elizabeth paid Jonas to file a petition. Elizabeth said this was an outright lie, apparently made during the height of an argument between Jonas and his girlfriend, who was jealous of her. She thought Elizabeth and Jonas were reconciling.
Unlike other grounds of inadmissibility, marriage fraud carries a stiffer penalty. It bars the applicant from receiving future immigrant visas even if there is an approved petition from another relative. What can Elizabeth do? Will she be separated completely from her family members who all now reside in the US?
Contesting fraud
Denials of past visa applications, derogatory records and other immigration papers may be available to the consular officer during the interview. In the event of a denial due to fraud, a document with a printed section of the pertinent law violated is usually issued to the applicant. The document will also state whether or not a ‘waiver’ application can overcome the fraud finding.
Most of the time, the finding of fraud is a conclusion that is reached after the interview and after review of all available information. There are cases, however, where the basis for the finding of fraud are not clear or are even unsubstantiated. In such a situation, instead of simply accepting the denial, the applicant should ask for more time and submit documents to prove the contrary.
The option of a ‘waiver’ to overcome the fraud finding should not be utilized under these circumstances. To do so would be an admission that the applicant in fact engaged in fraud and misrepresentation.
No one should admit to fraud or misrepresentation that is based on a manufactured statement or a lie. An applicant should instead contest the fraud.
In Elizabeth’s case, a waiver is not even an option. Marriage fraud may not be waived. Her recourse is to contest this finding by submitting evidence in her favor. She could ask her ex-husband to execute a declaration to verify the validity of their marriage, as well as provide other available evidence that would show that the marriage was entered into in good faith. Here, Elizabeth did not commit fraud but had only incurred unlawful presence when she overstayed. Instead of being permanently barred, she should be allowed to file a waiver for her overstay.
Concerted action
Family unity should always be the driving force behind immigration policy. The “tough” stance on enforcement for even the least offensive violations of immigration rules, regardless of the impact on families and family unity, is reaching a breaking point. The cry for immigration reform and a more sensible approach in dealing with undocumented immigrants is reaching fever pitch.
The new ICE directives issued last Aug. 23 is a way to alleviate growing tension caused by the indiscriminate enforcement of immigration laws. This new direction in policy is also a manifestation of the inherent power of our concerted action, our continued vigilance, and our unceasing demand for justice for our immigrant brothers and sisters.
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(Lourdes Tancinco may be reached at law@tancinco.com or at 8877177 or 7211963; or her website at www.tancinco.com)