by Atty. Emmanuel S. Tipon
There are men and women who do not tell a visa interviewer, such as a consul or immigration officer, that they have an illegitimate child. Illegitimacy is considered shameful. But the truth can never be hidden.
If an alien conceals an illegitimate child, USCIS will find out about it, sooner or later. Somebody might squeal on the liar. The liar might apply for an immigration benefit. Sometimes the liar brings it out himself. And sometimes the illegitimate child discloses it and seeks out the father like a well-known nonagenarian from Cagayan whom the late-Philippine President Ferdinand Marcos trusted but who betrayed him.
As they say in Ilocoslovakia, “Saan mo nga fifiaren ti bastardo.” (Do not trust a bastard). To which I add a caveat: “Fuera de los buenos.”
So what should the liar do when confronted by an immigration officer? It depends.
In one case, the woman liar denied it. When confronted with birth certificates of the illegitimate children, she said that they were fake.
In another case, an alien was being interviewed for a naturalization application. The immigration officer said that he had lied about his illegitimate children to the consular officer at the U.S. consulate in Manila and to the immigration officer at the airport when he arrived and in his naturalization application. Three times he lied, the officer said. He would be placed in removal proceedings.
I represented him at the interview, but I did not prepare his naturalization application. I asked the officer: “If the applicant were to withdraw his naturalization application would the officer still recommend his removal?”
The officer said that she would consider it but would not make any promises. I told the alien to fight but he said he would accept a deal and withdraw his application. Here’s a good case. An alien was interviewed for a naturalization application. In his application, he listed an illegitimate child in the Philippines with the expectation that he would be able to petition for him. The interviewer told him that they had obtained his consular file and that he did not disclose that he had an illegitimate child in the Philippines when he applied for an immigrant visa. He did not have a lawyer and did not know how to make a deal. He was placed in removal proceedings.
The Notice to Appear alleged that he was admitted to the U.S. as a child of a U.S. citizen (IR2) but procured his visa by fraud or by willfully misrepresenting a material fact, by failing to disclose that he had a child born out of wedlock in the Philippines.
Therefore, he was removable under Section 237(a)(1)(A) of the Immigration and Nationality Act (INA) because he was inadmissible as an alien who had sought to procure or had procured his admission or visa by fraud or by willfully misrepresenting a material fact, under INA Section 212(a)(6)(C)(i) and under Section 237(a)(1)(A) because he was inadmissible as an alien immigrant who was not in possession of a valid unexpired immigrant visa or other valid entry document required by INA.
Motion to dismiss and/or terminate
He retained our services. I moved to dismiss the charges in the Notice to Appear and/or terminate the removal proceedings. I argued that:
1. The DHS has the burden of proof to establish by clear and convincing evidence the allegations in the Notice to Appear and that the alien is deportable, but the DHS had not met its burden of proving that the alien committed fraud or willfully misrepresented a material fact to procure a visa or admission to the United States.
2. The fact that alien had a child born out of wedlock is not material and relevant to his eligibility for an IR2 visa. An IR2 visa is awarded to children of a United States citizen under INA Sec. 201(b). The requirement for an IR2 visa is the existence of a parent-child relationship between the petitioner and the beneficiary. Whether or not such children of a U.S. citizen petitioner have a child of their own, legitimate or illegitimate, is not a qualification for the issuance of an IR2 visa. Therefore, failure to disclose an immaterial and irrelevant fact does not constitute fraud or willful misrepresentation of a material fact. Failure to disclose that he had a child born out of wedlock is not material because it did not have a “natural tendency to influence or was capable of influencing the decisions of the decision-making body” and it did not lead to the alien “gaining some advantage or benefit to which he or she may not have been entitled under the true facts.”
3. The DHS had not established that if the alien had disclosed that he had a child out of wedlock it would have justified denial of an IR2 visa. DHS had not established that not disclosing the fact that the alien had child out of wedlock was willful and with intent to deceive the government. The DHS had neither alleged nor established that not disclosing the fact that the alien had a child out of wedlock was intended to induce the consular officer to issue a visa. The DHS had neither alleged nor established that not disclosing the fact that the alien had child out of wedlock was believed and acted upon by the consular officer to the disadvantage of the government.
4. The alien’s immigrant visa IR2 was validly issued.
5. The alien was not deportable and the Notice to Appear was improvidently issued and should have been cancelled by the Field Office Director who issued it. Since he did not, the Immigration Judge should cancel it.
Dhs files own motion to dismiss
To our surprise, the DHS filed its own Motion to Dismiss. It must have found our arguments were convincing and did not want to lose. But its motion was “without prejudice” meaning that it could re-file the case at any time. Before I could oppose the DHS motion, the Immigration Judge ordered the case dismissed. There was no coletilla “without prejudice” at the end of his order.
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ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publisher and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m. Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: firstname.lastname@example.org. Website: https://www.tiponlaw.com.