The misstatement must be material

In removal proceedings, the government is required to prove that the misstatement was material. Making a misstatement alone to the US government would not make someone inadmissible unless the misstatement was material. Misstating a fact is a material misstatement when it would make a foreign national excludable or shut off a line of inquiry that may have resulted in exclusion. A remote, tenuous or fanciful connection between a misrepresentation and a line of inquiry is insufficient. A fact is material when it had a natural tendency to affect the decision regarding the immigration benefit sought. An omission of a material fact can be a misrepresentation. A material misrepresentation does not require the government officer to have relied upon the untrue statement.

The misstatement must be willful

The government is required to prove that the misstatement was willful. A willful misrepresentation requires knowledge of its falsity. If a foreign national made a material misrepresentation to the US government, but the foreign national believed it was a true statement at the time, then it was not willful. The element of willfulness is satisfied by a finding the misrepresentation was deliberate and voluntary. A material misrepresentation does not require the intent to deceive, and the government does not have to prove that the foreign national intended to deceive the other party, but it does have to prove that the foreign national knew the statement was false.

Minor children

What happens to minor children when a parent commits a fraud or material misrepresentation on their behalf? Would it be fair to subject children to a lifetime removal from the US because of the actions of their parents? When a parent makes a misrepresentation on a child’s behalf, and the child does not know that the representation is false, and the child does not specifically intend to deceive the government, the actions of the parent cannot be imputed to the child for removal purposes.

Fraud is the intent to deceive

Fraud consists of false representations of a material fact made with knowledge of its falsity and with intent to deceive the other party. Although fraud is not defined by the Immigration and Nationality Act (INA), according to judicial interpretation, Fraud is when someone commits a material misrepresentation, and does so not only knowing the statement is false, but also with the intention to deceive the other party.

The 30/60 day rule

It’s considered a material misrepresentation when a foreign national engages in activities inconsistent with the purpose of the visa, such as entering the US on a tourist visa and then getting married to a US citizen. If done within 30 days after entry, the law presumes that there was a material misrepresentation. If between 30 and 60 days, the foreign national may be required to rebut a finding of a violation of fraud or material misrepresentation. There is no presumption if after 60 days.

Discretionary waiver

Even if a foreign national is guilty of committing a material misrepresentation or fraud, there are still defenses available, which a skilled attorney can use to stop removal, so it is critical to obtain competent legal counsel as soon as possible. Findings of inadmissibility may be waived at the discretion of the attorney general. Waiver may be granted if refusal to admit would result in extreme hardship to the foreign national’s US citizen/legal permanent resident spouse, parent, or child. There is no definition of extreme hardship. Rather, it depends on the facts and circumstances of the case, and the hardship must be greater than would normally be expected. Factors to determine a waiver include LPR or USC family ties in the US, and family ties outside the US, conditions in the home country, financial impact of deportation, health issues, psychological impact, age, ability to speak home country language, fear of prosecution, and religious issues.