Adjusting Under 245(a) Despite Having Entered Using A False Identity

To adjust his or her status to lawful permanent resident under section 245(a) of the Immigration and Nationality Act (“INA”), an individual must show the Service, or an Immigration Judge, that s/he has been admitted to the United States following inspection (or parole) by and authorization from an immigration officer, that s/he is eligible to receive an immigrant visa that is immediately available to her or him, and that s/he is admissible. Unless the applicant receives classification as an immediate relative under INA § 201(b), or as a “special immigrant” under certain other provisions, she/he must also show that s/he has not accepted unauthorized employment nor has s/he failed to maintain a lawful non-immigrant status since his or her last entry into the United States, “other than through no fault of his own or for technical reasons.” Section 245 does however offer limited exceptions to ineligibility under § 245(c).

A Procedurally Lawful Admission

The controlling decision on this issue whether an alien who entered the U.S. through the use of a false identity document has been inspected and admitted under the law, remains Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980). In Areguillin, the Board of Immigration Appeals (“BIA”) held that where an applicant provides sufficient credible evidence that s/he presented him or herself for inspection at the border, and did not make a false claim to U.S. citizenship, s/he was lawfully admitted when the inspecting officer makes the determination that s/he is not inadmissible and permits him or her to pass in to the U.S. The effect of this holding is that an applicant who has affected a procedurally lawful admission may qualify to adjust his or her status even though such admission may not have substantively complied with the law.

Despite the change in the law affected by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, wherein Congress amended INA § 101(a)(13) to define the term admission as inter alia “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer,” these earlier BIA decisions remain controlling today. Specifically, following the enactment of IIRIRA, the BIA held that a lawful entry required simply that the individual have been inspected by an immigration officer at the port-of-entry and authorized to enter the U.S. after such inspection.

The Second Circuit Court of Appeals recently held that even where the circumstances through which an individual has procured his or her admission to the U.S. may render that individual inadmissible, s/he has still been “admitted” for purposes of the INA § 101(a)(13).

Arguing Admissibility

The INA renders “[a]ny 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” inadmissible. Although a waiver of inadmissibility is available under INA § 212(i), the circumstances surrounding our client’s entry (his application for the visa and his application for admission) do not warrant a finding of inadmissibility such that he should be required to obtain a waiver of inadmissibility to adjust his status to lawful permanent resident.

In a recent, unpublished decision, the Second Circuit noted that to render an alien inadmissible, the Service must determine that:

• the alien misrepresented a fact;
• to an authorized official of the United States;
• the fact was material;
• the alien did so willfully; and

for the purpose of obtaining a visa, other documentation or entry into this country, or to obtain some other immigration and naturalization benefit.

Moreover, the Service is required to interpret the term “fraud” under its “commonly accepted legal [usage],” to include “false representations of a material fact made with knowledge of its falsity and with intent to deceive the other party,” which are “believed and acted upon by the party deceived to his disadvantage.” Although the BIA has since noted that “intent to deceive is no longer required before the willful misrepresentation charge comes into play,” to find that an individual has made a willful misrepresentation still “requires that the alien knowingly make a material misstatement to a government official for the purpose of obtaining an immigration benefit.”

Conclusion

If your visa is denied, you may be confused and frustrated. But there may be strategies available to overcome the denial. A lawyer with expertise in consular processing may be able to assist in pursuing reconsideration or re-submission of an application, supervisorial review at the consular post, an advisory opinion, judicial review, a waiver, or other strategies. Please call my immigration law office in New York for further help.