AILA-DC CHAPTER FALL 2013 CLE CONFERNCE 147

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Misrepresentation - A Manifestation Not in Accordance with the Facts By Lesa Lawrence1 This article will present a brief introduction to a finding of inadmissibility pursuant to INA 212(a)(6)(C)(i) as a result of presenting a document that contains objectively false information. Hypothetical fact patterns will be used to demonstrate some of the issues for a new practitioner to consider while preparing a rebuttal to the Consulate’s determination. Potential Client 1: You receive an early morning call from a client who was coming to the United States on a cap-exempt H-1B. She has just left the United States consulate having been refused an H-1B visa for a prior misrepresentation. It appears that on a prior vacation outside of the United States, she received notification that her job was terminated. At the time, she did not have any clear employment prospects in the United States and did not intend to overstay either the I-94 or the visa validity dates in her passport, but she needed to reenter the United States to collect her personal belongings and dispose of property. It had not occurred to her to make a visa appointment at the time to request a B-2 visa to return for her items. She reentered the United States on her H-1B visa and left about 30 days after entry. The Officer did not ask her any questions at the time of her prior entry and she did not offer an explanation as to her current employment situation. She did note when she walked away from the Officer that her I-94 had been annotated with her employer’s name. She wants to know what her options are; she has received an offer for the job of her dreams and would like to start right away! Potential Client 2: Your second call of the morning is from another client who has just received bad news from the Consulate. After his employment based immigrant visa petition had been approved by United States Citizenship and Immigration Service, he returned to the United States consulate in his home country for the visa interview. At the visa interview he was advised that he is inadmissible to the United States. He tells you that during his last entry into the United States he was not asked any questions by the officer who just flipped through his passport and he did not offer any conversation. He acknowledges that he may have been out of status when he last entered as an H-4 dependent because a divorce judgment from his H-1B spouse had been entered during his last trip abroad. Of course, he wants to return to the United States as soon as possible. He does not understand why he is being accused of misrepresentation when no one had asked him any questions about his marital status during his last entry. After the initial consultation, Counsel decides to represent both clients in visa proceedings. Both clients have been found inadmissible to the United States based on INA 212(a)(6)(C)(i). If inadmissibility is established, they are facing “lifetime inadmissibility to

1 Lesa Lawrence is an associate at Wasserman, Mancini & Chang. Her practice of expertise is Immigration and Naturalization. Lesa is a member of the American Immigration Lawyers Association and admitted to the bar in New York, Connecticut and The Law Society of Upper Canada (Ontario)


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the United States unless a waiver is obtained.”2 Considering what is at stake, it is very important to have a firm grasp of each client’s immigration history before moving forward with an inquiry to the Consulate. INA 212(a)(6)(C)(i) states in pertinent part:

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.

Pursuant to 9 FAM 40.63 N2, the criteria for finding an alien inadmissible under INA 212(a)(6)(C)(i) follows:

1. There has been a misrepresentation made by the applicant; 2. The misrepresentation was willfully made; and 3. The fact misrepresented is material; and 4. The alien by using fraud or misrepresentation seeks to procure, has sought to

procure, or has procured a visa, other documentation, admission into the United States or other benefit under the INA.

In both hypotheticals, the client took note that they were not asked any questions by the Customs and Border Protection Officer and did not offer any information about their purpose in entering the United States. They assumed their silence would protect them from a finding of misrepresentation. Assuming your client is not asked any questions, makes no statement and is not asked to present documentation at the port of entry they have not made a misrepresentation and are admissible to the United States. As stated in 9 FAM 40.63 N4.2:

In determining whether a misrepresentation has been made, it is necessary to distinguish between misrepresentation of information and information that was merely concealed by the alien’s silence. Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purposes of INA 212(a)(6)(C)(i).

Silence however, does not always protect your client from a finding of misrepresentation. If your client hands over a document without making any voluntary statements, they can still be found to have made a misrepresentation to the inspecting officer.3 As explained in 9 FAM 40.63 N4.1:

2 9 FAM 40.63 N1.3.

3 The idea that one’s silence should protect them from a finding of misrepresentation at the time of their entry into the United States may mistakenly come from cases such as Matter of Areguillin, 17 I & N Dec. 308 and Matter of Quilantan, 25 I & N Dec. 285 (BIA 2010). However, the idea that either case can be used as an example of how misrepresentation is interpreted at the port of entry is misguided as both cases discuss lawful entry only. See, Matter of [Name and A# withheld], AAO May 6, 2009, as cited in Mark Mancini, Silence is Golden: A Note on Behavior During the Admissions Process as a Species of Fraud After Matter of Areguillin, (Union Internationale des Avocats, Immigration Law and Nationality


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As used in INA 212(a)(6)(C)(i), a misrepresentation is an assertion or manifestation not in accordance with the facts. Misrepresentation requires an affirmative act taken by the alien, which can include an oral or written statement or by submitting evidence containing false information.

While your client’s silence will not constitute a misrepresentation, the presentation of a passport which contains false information (in both hypothetical cases, a passport with a valid visa stamp after the grounds of eligibility have changed) can constitute a manifestation of misrepresentation.

It is hard to imagine an entry to the United States from a foreign country without at least the presentation of a passport so the reality of “a manifestation” is always a concern for your client at subsequent entries if they have not clearly asserted their purpose in the United States on a prior entry.4 Therefore, it is important for your clients to understand that it is not only a fake passport, photo-subbed document, fake birth and/or marriage certificate that can result in their inadmissibility. Presenting a document within which the information has changed is enough for them to be deemed inadmissible to the United States, whether or not any statement has been made. In addition, your client should understand it is not only the statements and documentation produced at the visa appointment that affect their admissibility to the United States, it is every conversation and/or submission to a United States official5 related to their admission that can potentially be construed as a misrepresentation.

A finding of misrepresentation is only the first step in the analysis.6 It is important to determine whether there is a plausible explanation for the alleged misrepresentation. “Although a specific intent to deceive is not necessary for misrepresentation, an accidental statement or one that is the product of an honest mistake is not considered misrepresentation.” See, In re Tijam, 11 I&N Dec. 408 (Dec. 1998) citing Kathleen Sullivan, When Representations Cross the Line, Bender’s Immigration Bulletin, Vol. 1, No. 11 (Oct. 1996).

Taking the hypotheticals into account, if the client’s “eligibility status” had just changed before entry, determine when the change actually took effect:

Client 1 needs to identify exactly when her termination took effect. Was she advised of her immediate termination, or was she notified that her job was being eliminated and the

Newsletter) January 2010 at 15. In the article, the author concludes that “Areguillin certainly tells us what misrepresentation is not: silence and stillness.” Id.

4 As inequitable as the treatment may seem (an individual who hands over a passport with a “changed condition” and is silent receives the harsh penalty of permanent inadmissibility, while an individual who has never availed themselves of the visa process and remains silent at entry is arguably permitted to adjust status without penalty) the holdings of Areguilin and Quilantan are in fact consistent with 9 FAM 40.63 N4.2. Silence, without more, is not a misrepresentation. 5 See, 9 FAM 40.63 N4.3.

6 See, 9 FAM 40.63 N2.


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Company would perform an exit transition before removing her from payroll? As the H-1B is employer specific, depending on your client’s specific facts, it may be difficult to find that her misrepresentation, presentation of her H-1B visa after notification of termination, was an honest mistake.

To resolve the inadmissibility of Client 2, it may be a good first step to contact local counsel in the jurisdiction of divorce. In terms of addressing the criteria of INA 212(a)(6)(C)(i) it will be important to determine who filed for divorce and when the divorce became effective. Depending on the laws of the foreign country, the divorce may not have been in effect on the date of the Judgment of Divorce that is now in the Consulate’s possession. The term “willfully” is defined at 9 FAM 40.63 N5.1:

The term “willfully” as used in INA 212(a)(6)(C)(i) is interpreted to mean knowingly and intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise. In order to find the element of willfulness, it must be determined that the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement.

As presented in the hypothetical, if Client 2 entered the United States after a divorce judgment has been signed but before the appeal period had expired, the act of handing over a passport that may ultimately contain false information may not constitute willful misrepresentation of a material fact (knowingly, intentionally and deliberately made an untrue statement). For example in, Matter of Salazar, I & N Dec. 167 (BIA 1979), the respondent entered the United States with notice of his wife’s intention to withdraw the visa petition but before it could be proven he had actual notice of the petition’s revocation. The Board held “given this state of affairs, and the apparent uncertainty of his marriage at that time, it cannot be said that the Service has carried its burden in establishing that the applicant was in fact aware of what had transpired concerning his visa petition, and that his failure to volunteer information on the subject to the consulate constituted a willful misrepresentation of a material fact.” Matter of Salazar, Id. Since 9 FAM 40.63 N2 is written in the conjunctive, even if you determine that a misrepresentation has been made, consider the remaining elements of 9 FAM 40.63 N2. If after a full consideration of the facts, you determine that your client is admissible you should move forward with submission of a rebuttal to the United States Consulate (and LegalNet if required). Your client’s submission of a passport does not end the analysis under 9 FAM 40.63 N2. If there are additional facts that explain that the submission of the passport was not made to “knowingly, intentionally or deliberately” misrepresent a material fact, it should be brought to the consular officer’s attention.7 Please take note that while you 7 We will assume for the purpose of this hypothetical that the client’s admissibility is resolved after an analysis of the first two criteria of 9 FAM 40.63 N2. The third criterion is materiality. Materiality is defined at 9 FAM 40.63 N6.1:

The Attorney General has declared the definition of “materiality” with respect to INA 212(a)(6)(C)(i) to be as follows: “A misrepresentation made in connection with an application for a visa or other documents, or with entry into the United States, is material if either:

(1) The alien is inadmissible on the true facts; or


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can and should prepare a submission indicating why your client has not made a misrepresentation, the burden does not necessarily shift to your client.8 If however, counsel completes his/her analysis and determines that the client is inadmissible, they should consider whether they are eligible for a nonimmigrant waiver pursuant to INA 212(d)(3)(A).9 A waiver will be the only way your client will be admissible to the United States.10 Returning again to clients 1 and 2, they left the United States to consular process their visas in their home countries. Had they remained in the United States, they may still have been required to respond to a finding of misrepresentation, but they would have been in the United States while doing so. Assuming either client had contacted you before returning to their home consulate, all of their previous entries should be reviewed to make a determination as to the best jurisdiction for processing their application for permanent residence, or their nonimmigrant extension. If their immigration history dictates that they must consular process their immigrant visa application, they should fully understand the implications of INA 212(a)(6)(C)(i) and approach the visa appointment with a waiver application in hand. A detailed intake sheet and consultation confirming all your client’s prior entries, applications and conversations with United States officials related to admission to the United States should be thoroughly discussed in order to determine how to proceed with representation.

(2) The misrepresentation tends to shut of a line of inquiry which is relevant to the

alien’s eligibility and which might well have resulted in a proper determination that he or she be inadmissible.” (Matter of S- and B-C, 9 I & N 436, at 447.).

Looking at the hypotheticals, if there is no further explanation, the clients would have been inadmissible on the true facts. An individual fired from their H-1B employment (Client 1) would not be admissible to the United States in H-1 Status. In addition, a derivative spouse (Client 2) with a final order of divorce is not admissible to the United States in their prior derivative visa category. The fact misrepresented, or in these cases, the manifestation was material.

8 See, Mark Mancini, Fraud Under the Immigration and Nationality Act, 56 Notre Dame L. Rev. 668 (1981), for a discussion of fraud and misrepresentation including an explanation of why the burden of proof never shifts to the foreign national.

9 See, 9 FAM 40.63 N16.1.

10 See, 9 FAM 41.63 N1.3.


AILA-DC CHAPTER FALL 2013 CLE CONFERNCE 147 · 2013-11-09 · the presentation of a passport so the...

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