Immigration Law Violations

Immigration Law Violations

Inadmissibility. There are a broad range of immigration violations that can prevent a person from gaining future lawful admission; in other words, they constitute grounds of inadmissibility. Inadmissibility can attach due to violations at the time of entry (misrepresentation, smuggling, etc.); inadmissibility as a repercussion for prior removal; and violations occurring after proper entry that lead to unlawful status while within the United States.

8 USC §1182(a)(6) (violations at entry) and (9) (later unlawful presence and inadmissibility as a result of prior removal), INA §§212(a)(6) (violations at entry) and (9) (later unlawful presence and inadmissibility as a result of prior removal).

Pursuant to INA §212(a)(6), inadmissibility attaches to persons in the United States who: (1) were not admitted or paroled; (2) failed to attend their removal hearing without reasonable cause; (3) committed fraud and misrepresentation; (4) are stowaways; (5) knowingly encourage, induce, assist, or aid another to enter the United States in violation of the law; (6) have been fined for making false documents or use someone else’s lawfully issued documents; or (7) entered the United States to study at a private institution and improperly switched to a public institution in violation of the statute.

Importantly, among the immigration violations that have the most serious consequences for inadmissibility are those having to do with fraud or willful misrepresentation.

The INA provides that where a person willfully misrepresents a material fact in obtaining or seeking to obtain a visa, documentation, or admission to the United States, he or she is thereafter inadmissible forever. Materiality is determined by whether the misrepresented fact closed off a line of inquiry or has a “natural tendency” to affect the decision that might have led to a denial of the visa or document.

The fraud or misrepresentation must be willful and perpetrated on a U.S. government official. Furthermore, once a fraud or willful misrepresentation occurs, it cannot be cured unless there was a timely retraction.

For example, a person who entered into a fraudulent marriage and attempted to obtain immigration benefits, and later sought to annul the marriage, has still attempted to commit a fraud.

A large number of persons are inadmissible for failure to have the proper admission documents, such as a valid passport, a valid immigrant or nonimmigrant visa, or other documentation necessary for entry. After 9/11, DHS instituted a program called National Security Entry-Exit Registration System (NSEERS).

While the NSEERS program was suspended in December 2003, persons who were subject to it must still notify DHS upon departure from the United States.

In addition to requiring that males born in certain designated countries register with DHS for interviews, fingerprinting, and photographing, the regulation also required that the person register upon departure.

Nationals from the following countries are subject to the NSEERS program: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, The Sudan, Syria, Tunisia, United Arab Emirates, and Yemen.

A person who has failed to register without good cause upon departure “shall be presumed to be inadmissible” as a person the Attorney General believes has engaged in unlawful activity.

As a result of a prior removal, inadmissibility can attach to someone who has been ordered removed in the past through summary (expedited) removal or regular removal proceedings initiated upon arrival and may not be readmitted for five years; where there has been a second removal, the period is extended to 20 years.

A person who fails to attend his or her removal hearing without “reasonable cause” and later seeks readmission is inadmissible for five years.

Someone who has been removed pursuant to a regular removal hearing that is not initiated upon arrival or who departed while an order of removal was outstanding may not return to the United States for 10 years (or 20 years in the case of a second removal or for conviction of an aggravated felony) unless that person has first been granted permission by DHS.

The statute also imposes criminal penalties of up to two years imprisonment for persons who return without permission. This provision does not appear to apply to persons who departed following the commencement of removal proceedings but where an order of removal was not entered.

According to DHS, this section applies only if the person has departed the United States and is seeking re-admission.

 

Finally, a person who was previously removed as a result of an aggravated felony conviction is permanently inadmissible.

Regarding inadmissibility for unlawful presence, persons who are unlawfully present in the United States for more than 180 consecutive days, but less than one year, and who voluntarily depart the United States before proceedings have commenced may not return for three years from their departure or removal; this provision does not apply if the person was granted voluntary departure by the IJ.

Persons who have been unlawfully present for one or more years are similarly prohibited from returning, but for 10 years.

Deportability. There are several provisions that are unique to deportability and fall within the category of immigration violations. They are: (1) inadmissibility at time of entry;  (2) failure to maintain status; and (3) failure to notify change of address, unless it was due to excusable neglect, or not willful.

 

A person who was inadmissible at the time of inspection but somehow managed to gain legal admission is nevertheless subject to removal as a deportable person. However, deportability is not presumed, and the burden rests on the government, as it does in other deportability cases.

 

Someone who is admitted to the United States and fails to follow the terms of his or her admission also is deportable. Terms of admission include departing by a specific date (or otherwise obtaining an extension of permission to remain), or fulfilling the specific requirements of the nonimmigrant visa under which the person has been admitted.

In addition, all noncitizens are required to notify DHS of a change of address within 10 days, and the failure to do so is a separate ground of deportability.

A person may be deportable for “marriage fraud” if the person was admitted to the United States with an immigrant visa or documentation based on a marriage that was entered into less than two years prior to entry and terminated after entry, unless the person can establish that the marriage was not entered into to evade the immigration laws.  This statute was designed to shift the burden of proof in cases where a marriage was terminated within the period noted in the statute, and to facilitate the person’s removal.

Waivers. The inadmissibility grounds for fraud or willful misrepresentation can be waived for the spouse, son, or daughter of a U.S. citizen or LPR upon a showing that the denial of the immigrant visa or permanent resident status would result in extreme hardship to the U.S. citizen or LPR spouse or parent.

An immigrant not in possession of a valid visa, passport, or admission document may obtain a waiver at the discretion of the government if the person either did not know or could not have reasonably known of the defect regarding the documentation.

 

There is no waiver for marriage fraud; the petitioning spouse and beneficiary bear the burden of showing that the marriage was bona fide.

The unlawful presence bars, may be waived for a person who is otherwise eligible for an immigrant visa and is the spouse, son, or daughter of a U.S. citizen or LPR and can show extreme hardship to the spouse or parent.

INA §212(a)(9)(C) may be waived for a battered spouse or child who has been granted status as such, if he or she can establish a connection between the unlawful presence and the extreme cruelty or battery to which he or she was subjected.

 

A person’s failure to comply with the change of address requirements may be waived where it was reasonably excusable or not willful.

The deportability grounds based on inadmissibility at the time of admission for a misrepresentation in procuring a visa or other documentation for entry may be waived for a person who is the spouse, parent, son, or daughter of a U.S. citizen or LPR. This waiver, like many others, is discretionary.

There is some question as to whether a person who entered into a fraudulent marriage is eligible for this waiver.  The waiver is not available for persons who are Nazis. When considering the waiver, the nature of the fraud can be a factor in whether it should be granted.

Refugees and asylees seeking adjustment of status to permanent residency or admission to the United States are not subject to the documentation grounds of inadmissibility and may seek a waiver for past immigration violations for humanitarian purposes–to ensure family unity or when otherwise in the public interest.

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