§ 1292.1 Representation of others.
(a) A person entitled to representation may be represented by any of the following:
(1) Attorneys in the United States. Any attorney as defined in §1001.1(f) of this chapter.
(2) Disclosure of information for the purpose of conducting a preliminary inquiry. The EOIR disciplinary counsel, in the exercise of discretion, may disclose documents and information concerning complaints and preliminary inquiries to the following individuals and entities:
(i) He or she is appearing at the request of the person entitled to representation;
(ii) In the case of a law student, he or she has filed a statement that he or she is participating, under the direct supervision of a faculty member, licensed attorney, or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization, and that he or she is appearing without direct or indirect remuneration from the alien he or she represents;
(iii) In the case of a law graduate, he or she has filed a statement that he or she is appearing under the supervision of a licensed attorney or accredited representative and that he or she is appearing without direct or indirect remuneration from the alien he or she represents; and
(iv) The law student's or law graduate's appearance is permitted by the official before whom he or she wishes to appear (namely an immigration judge, district director, officer-in-charge, regional director, the Commissioner, or the Board). The official or officials may require that a law student be accompanied by the supervising faculty member, attorney, or accredited representative.
(3) Reputable individuals. Any reputable individual of good moral character, provided that:
(i) He is appearing on an individual case basis, at the request of the person entitled to representation;
(ii) He is appearing without direct or indirect renumeration and files a written declaration to that effect;
(iii) He has a pre-existing relationship or connection with the person entitled to representation (e.g., as a relative, neighbor, clergyman, business associate or personal friend), provided that such requirement may be waived, as a matter of administrative discretion, in cases where adequate representation would not otherwise be available; and
(iv) His appearance is permitted by the official before whom he wished to appear (namely, a special inquiry officer, district director, officer-in-charge, regional commissioner, the Commissioner, or the Board), provided that such permission shall not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself out to the public as qualified to do so.
(4) Accredited representatives. A person representing an organization described in §1292.2 of this chapter who has been accredited by the Board.
(5) Accredited officials. An accredited official, in the United States, of the government to which an alien owes allegiance, if the official appears solely in his official capacity and with the alien's consent.
(b) Persons formerly authorized to practice. A person, other than a representative of an organization described in §1292.2 of this chapter, who on December 23, 1952, was authorized to practice before the Board and the Service may continue to act as a representative, subject to the provisions of §1292.3 of this chapter.
(c) Former employees. No person previously employed by the Department of Justice shall be permitted to act as a representative in any case in violation of the provisions of 28 CFR 45.735–7.
(d) Amicus curiae. The Board may grant permission to appear, on a case-by-case basis, as amicus curiae, to an attorney or to an organization represented by an attorney, if the public interest will be served thereby.
(e) Except as set forth in this section, no other person or persons shall represent others in any case.
[40 FR 23271, May 29. 1975, as amended at 53 FR 7728, Mar. 10, 1988; 55 FR 49251, Nov. 27, 1990; 61 FR 53610, Oct. 15, 1996; 62 FR 23635, May 1, 1997; 73 FR 76927, Dec. 18, 2008]
Wednesday, November 25, 2009
Fraudulent marriage conspiracy Chicago - 10 indicted in Chicago sham marriage conspiracy
November 23, 2009
10 indicted in Chicago sham marriage conspiracy
CHICAGO - An immigration attorney and five current and former Cook County Traffic Court employees were among those charged on Monday for allegedly arranging sham marriages to evade U.S. immigration laws. The charges resulted from an investigation by U.S. Immigration and Customs Enforcement (ICE).
A federal grand jury returned a 14-count indictment last week that was unsealed Nov. 23 after ICE agents arrested five of the defendants. Among the 10 individuals charged are a Chicago immigration attorney and five current or former Cook County Traffic Court employees. However, the charges do not allege that their employment played any role in the alleged fraud scheme.
According to the indictment, Maria F. Cruz and others recruited U.S. citizens and foreign nationals, primarily Filipinos, who entered into at least 15 sham marriages to evade immigration laws. The foreign nationals paid Cruz about $3,000 each to arrange for them to marry U.S. citizens. Cruz allegedly promised U.S. citizens that in return for marrying a foreign national they would receive about $3,000 after the marriage and about $350 a month until the foreign national obtained U.S. citizenship.
Foreign nationals who marry U.S. citizens can become U.S. permanent residents - and ultimately obtain U.S. citizenship - but not if the marriage is identified as a sham solely to evade immigration laws.
Cruz, 49, formerly of Chicago and currently living in American Canyon, Calif., was arrested on an initial complaint in late August; she was released on a $200,000 secured bond. She was a Cook County Traffic Court employee until this past summer when she moved to California.
In addition to the 15 allegedly fraudulent marriages detailed in the indictment, Cruz allegedly attempted to arrange two additional marriages between individuals and ICE agents during an undercover portion of the investigation.
Among the five people arrested Monday was Manny Aguja, 53, of Chicago, an immigration attorney with an office at 3144 W. Montrose Ave. Also arrested were two of Aguja's employees: his twin brother, Marc Aguja, 53; and Celeste Ligutan-Lopez, 36, both of Chicago.
According to the indictment, between July 2003 and October 2009 Cruz allegedly paid fees to individuals who referred U.S. citizens to her who were willing to enter into fraudulent marriages. Cruz then drove them to weddings and took photos before and after, knowing that they would be used to make it appear that the sham marriages were legitimate. She also advised the participants of steps they needed to take to make their marriages appear legitimate.
Cruz allegedly referred sham marriage participants to Manny Aguja's law office to prepare paperwork in support of the conspiracy. In addition to preparing allegedly fraudulent immigration papers, the Aguja brothers and Ligutan-Lopez met with participants and coached them on how to make the marriages appear legitimate. The indictment also seeks forfeiture of Manny Aguja's law office.
Also arrested Monday were Keisha McGary, 33; and Eugene Wilson, 30, both Cook County employees residing in Chicago. The Aguja brothers, Ligutan-Lopez, McGary and Wilson are scheduled to appear at 1:30 p.m. Monday before U.S. District Judge Samuel Der-Yeghiayan, Northern District of Illinois.
Cruz and the remaining four defendants will be ordered to appear for arraignment at a later date. They include Maria Cyd Adriatico-Fernandez, 53, of Oakbrook, and the following three Cook County Traffic Court employees: Sonia Maki, 43; DeShawn Barksdale, 39; and Eugene Wilson's sister, Latrice Wilson, 37, all of Chicago.
Each defendant was charged with conspiracy to commit marriage fraud. Some defendants were charged with additional counts of marriage or immigration fraud, including Cruz who faces 10 counts of marriage fraud. The Aguja brothers were also charged with conspiracy to induce foreign nationals to reside illegally in the United States.
"ICE will not tolerate those who engage in sham marriages to circumvent and exploit our nation's immigration system," said ICE Assistant Secretary John Morton. "Marriage fraud poses a significant vulnerability that must not go unchallenged. ICE aggressively investigates those who take illegal shortcuts to citizenship, whether they do so to gain an immigration benefit or simply for personal profit."
ICE was assisted in the investigation by the U.S. Citizenship and Immigration Service's Fraud Detection and National Security (FDNS) program.
Assistant U.S. Attorney Jason Yonan, Northern District of Illinois, is prosecuting the case.
Conspiracy to commit marriage fraud and marriage fraud carry a maximum penalty of five years in prison and a $250,000 fine. Other immigration fraud counts in the indictment carry a maximum penalty of 10 years in prison and a $250,000 fine. If convicted, however, the Court would impose a sentence it deems reasonable under the advisory U.S. Sentencing Guidelines.
The public is reminded that an indictment contains only charges and is not evidence of guilt. The defendants are presumed innocent and are entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.
10 indicted in Chicago sham marriage conspiracy
CHICAGO - An immigration attorney and five current and former Cook County Traffic Court employees were among those charged on Monday for allegedly arranging sham marriages to evade U.S. immigration laws. The charges resulted from an investigation by U.S. Immigration and Customs Enforcement (ICE).
A federal grand jury returned a 14-count indictment last week that was unsealed Nov. 23 after ICE agents arrested five of the defendants. Among the 10 individuals charged are a Chicago immigration attorney and five current or former Cook County Traffic Court employees. However, the charges do not allege that their employment played any role in the alleged fraud scheme.
According to the indictment, Maria F. Cruz and others recruited U.S. citizens and foreign nationals, primarily Filipinos, who entered into at least 15 sham marriages to evade immigration laws. The foreign nationals paid Cruz about $3,000 each to arrange for them to marry U.S. citizens. Cruz allegedly promised U.S. citizens that in return for marrying a foreign national they would receive about $3,000 after the marriage and about $350 a month until the foreign national obtained U.S. citizenship.
Foreign nationals who marry U.S. citizens can become U.S. permanent residents - and ultimately obtain U.S. citizenship - but not if the marriage is identified as a sham solely to evade immigration laws.
Cruz, 49, formerly of Chicago and currently living in American Canyon, Calif., was arrested on an initial complaint in late August; she was released on a $200,000 secured bond. She was a Cook County Traffic Court employee until this past summer when she moved to California.
In addition to the 15 allegedly fraudulent marriages detailed in the indictment, Cruz allegedly attempted to arrange two additional marriages between individuals and ICE agents during an undercover portion of the investigation.
Among the five people arrested Monday was Manny Aguja, 53, of Chicago, an immigration attorney with an office at 3144 W. Montrose Ave. Also arrested were two of Aguja's employees: his twin brother, Marc Aguja, 53; and Celeste Ligutan-Lopez, 36, both of Chicago.
According to the indictment, between July 2003 and October 2009 Cruz allegedly paid fees to individuals who referred U.S. citizens to her who were willing to enter into fraudulent marriages. Cruz then drove them to weddings and took photos before and after, knowing that they would be used to make it appear that the sham marriages were legitimate. She also advised the participants of steps they needed to take to make their marriages appear legitimate.
Cruz allegedly referred sham marriage participants to Manny Aguja's law office to prepare paperwork in support of the conspiracy. In addition to preparing allegedly fraudulent immigration papers, the Aguja brothers and Ligutan-Lopez met with participants and coached them on how to make the marriages appear legitimate. The indictment also seeks forfeiture of Manny Aguja's law office.
Also arrested Monday were Keisha McGary, 33; and Eugene Wilson, 30, both Cook County employees residing in Chicago. The Aguja brothers, Ligutan-Lopez, McGary and Wilson are scheduled to appear at 1:30 p.m. Monday before U.S. District Judge Samuel Der-Yeghiayan, Northern District of Illinois.
Cruz and the remaining four defendants will be ordered to appear for arraignment at a later date. They include Maria Cyd Adriatico-Fernandez, 53, of Oakbrook, and the following three Cook County Traffic Court employees: Sonia Maki, 43; DeShawn Barksdale, 39; and Eugene Wilson's sister, Latrice Wilson, 37, all of Chicago.
Each defendant was charged with conspiracy to commit marriage fraud. Some defendants were charged with additional counts of marriage or immigration fraud, including Cruz who faces 10 counts of marriage fraud. The Aguja brothers were also charged with conspiracy to induce foreign nationals to reside illegally in the United States.
"ICE will not tolerate those who engage in sham marriages to circumvent and exploit our nation's immigration system," said ICE Assistant Secretary John Morton. "Marriage fraud poses a significant vulnerability that must not go unchallenged. ICE aggressively investigates those who take illegal shortcuts to citizenship, whether they do so to gain an immigration benefit or simply for personal profit."
ICE was assisted in the investigation by the U.S. Citizenship and Immigration Service's Fraud Detection and National Security (FDNS) program.
Assistant U.S. Attorney Jason Yonan, Northern District of Illinois, is prosecuting the case.
Conspiracy to commit marriage fraud and marriage fraud carry a maximum penalty of five years in prison and a $250,000 fine. Other immigration fraud counts in the indictment carry a maximum penalty of 10 years in prison and a $250,000 fine. If convicted, however, the Court would impose a sentence it deems reasonable under the advisory U.S. Sentencing Guidelines.
The public is reminded that an indictment contains only charges and is not evidence of guilt. The defendants are presumed innocent and are entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.
Tuesday, November 24, 2009
Deceased U.S. Citizens and their Children - Guidance Regarding Surviving Spouses (Neufeld Memo 06/15/2009)
U.S. Citizenship and Immigration Services
June 15, 2009
Memorandum
TO: Field Leadership
FROM: Donald Neufeld Acting Director
SUBJECT: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children
I. Purpose
This memorandum provides guidance to U.S. Citizenship and Immigration Services (USCIS) field offices and service centers regarding the processing of surviving spouses of deceased U.S. citizens and qualifying children of the surviving spouses. It affords a new process by which they may apply for deferred action. This policy guidance will be in effect until further notice and may be revised as needed.
II. Background
Section 205. 1 (a)(3)(i)(C) of title 8 of the Code of Federal Regulations (8 CFR) requires that the approval of Form 1-130, Petition for Alien Relative, be automatically revoked upon the death of the petitioner if the beneficiary has not adjusted status in the United States or been inspected and admitted as an immigrant. In such instances, the beneficiary may request a reinstatement of the approval and USCIS, in its discretion, may grant such a request for humanitarian reasons. 8 CFR 20S.1(a)(3)(i)(C)(2).
However, no avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen's death and (1) the immigrant petition filed by the citizen on behalf of the surviving spouse has not been adjudicated by USCIS at the time of the citizen's death, or (2) no petition was filed by the citizen before the citizen's death. This issue has caused a split among the circuit courts of appeal and is also the subject of proposed legislation in the U.S. Congress (bills S. 815 and H.R. 1870).
1 Depending on context, the term beneficiary in this guidance may include both actual and potential beneficiaries of Forms 1-130 filed on their behalf.
III. Policy Guidance
This policy guidance covers only (1) surviving spouses of U.S. citizens who died before the second anniversary of the marriage, who have not remarried and were not legally separated from the citizen spouse at the time of the citizen’s death, and who are residing in the United States,2 and (2) such surviving spouses’ qualifying children. For purposes of this policy guidance, “qualifying children” are any children of the surviving spouse of the deceased U.S. citizen who remain unmarried and under 21 years of age (age determinations for beneficiaries of Forms I-130 should be made as provided in section 201(f) of the INA).
This guidance applies to the aforementioned beneficiaries without regard to their manner of entry into the United States. Such surviving spouses are covered without restrictions on how long the U.S. citizen spouse has been deceased as long as the surviving spouse has not remarried.3
This guidance does not cover surviving spouses or qualifying children of deceased U.S. citizens who are residing outside the United States or surviving spouses and children of a lawful permanent resident or other non-U.S. citizen. This guidance also does not cover surviving spouses or qualifying children of deceased U.S. citizens if the surviving spouse remarried at any time after the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated). This guidance does not cover any beneficiary who was legally separated from his or her U.S. citizen spouse at the time of the citizen’s death, or such beneficiary’s children.
Since current section 201(b)(2)(A)(i) of the Immigration and Nationality Act (INA) treats covered widow(er)s of U.S. citizens and their children as immediate relatives based upon a self-petition, they are not covered by this guidance. They may file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, in accordance with the instructions on the Form.
In order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens, USCIS is instituting the following policy guidance, which is effective immediately and until further notice.
A. Form I-130 Approved Prior to the Death of the U.S. Citizen Spouse (Petitioner)
Upon the death of the U.S. citizen petitioner, the approved Form I-130 is automatically revoked pursuant to 8 CFR 205.1(a)(3)(i)(C). The beneficiary, however, may request reinstatement of the revoked petition pursuant to 8 CFR 205.1(a)(3)(i)(C)(2). USCIS may then exercise discretion and grant the reinstatement after considering the facts and humanitarian considerations of the particular
2 Section III(A) of this memorandum, however, regarding humanitarian reinstatement, shall apply to surviving spouses outside the United States. 3 This guidance is also applicable to a beneficiary who entered the United States on a K-1 Nonimmigrant Visa and married a U.S. citizen other than the U.S. citizen petitioner who filed the I-129F. If the U.S. citizen spouse died before the second anniversary of the marriage, the widow(er) is eligible for deferred action or humanitarian reinstatement as described herein.
case. If the request for humanitarian reinstatement is approved, the beneficiary may proceed to the adjustment of status or consular processing stage.
This memorandum does not alter the process for reviewing a Form I-130 returned to USCIS by a U.S. Consular Officer overseas when the beneficiary is seeking a humanitarian reinstatement. If USCIS reinstates the Form I-130 returned by the consular officer, the I-130 should be forwarded to the National Visa Center to allow the beneficiary to resume consular processing. Section III(A) of this guidance, relating to humanitarian reinstatement, applies to beneficiaries who are within or outside the United States.
If a beneficiary covered by this guidance requests humanitarian reinstatement, adjudicators should presume that humanitarian reasons support a grant of the request. Absent extraordinary factors or a failure to meet the regulatory requirements of 8 CFR 205.1(a)(3)(i)(C)(2), adjudicators should favorably exercise discretion accordingly. If the request for reinstatement cannot be granted for any reason other than confirmed or suspected fraud or issues of criminality or national security, the beneficiary should be informed that he or she may request deferred action in the manner described in III(E) below.
In a case governed by First, Sixth or Ninth Circuit law, officers should consult with local USCIS counsel before treating an approved spousal immediate relative petition as “revoked” under 8 CFR 205.1(a)(3)(i)(C). Courts in those jurisdictions have held that the visa petitioner’s death does not end a surviving spouse’s eligibility for classification as an immediate relative. Taing v. Napolitano, ___ F.3d ___, 2009 WL 1395836 (1st Cir. 2009); Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009); Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006).
B. Form I-130 Pending at the Time of Death of the U.S. Citizen Spouse (Petitioner) – Married Less than 2 Years at Time of Death
Once USCIS has received a copy of the U.S. citizen petitioner’s death certificate, the pending, stand¬alone Form I-130 should be held in abeyance at the pending location. Petitions may be transferred to the Vermont Service Center to be consolidated with the A-file housing a deferred action request, if such a request is made by the beneficiary (see further guidance below).
Any concurrently filed Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-130, should be held in abeyance at the National Benefits Center until further guidance. The beneficiary will remain eligible to receive the interim benefits of advance parole and employment authorization on the basis of the pending adjustment of status application.
If a Form I-485 was not concurrently filed, the beneficiary should be informed that he or she may request deferred action in the manner described in section III(E) below.
Note: In instances where the beneficiary and deceased U.S. citizen petitioner were married for at least two years at the time of the petitioner’s death, the Form I-130 should be denied under existing
procedures. Instructions should be provided to the beneficiary regarding the availability of the Form I-360 as a special immigrant widow/widower. Any associated Form I-485 should also be denied.
C. Form I-130 Denied (Prior to the Issuance of this Guidance) due to the Death of the U.S. Citizen Spouse (Petitioner)
A beneficiary who is the surviving spouse of a U.S. citizen petitioner and whose petition was denied by USCIS (1) due to the death of the U.S. citizen petitioner, and (2) prior to the issuance of this guidance, may request deferred action in the manner described in section III(E) below.
D. Form I-130 Not Filed Prior to the Death of the U.S. Citizen Spouse
A beneficiary who was legally married to a now deceased U.S. citizen at the time of the U.S. citizen’s death, but for whom no Form I-130 was filed, may request deferred action in the manner described in section III(E) below.
If the beneficiary was not legally married to, or was legally separated from, the deceased U.S. citizen at the time of the U.S. citizen’s death, a qualifying relationship does not exist. The beneficiary is therefore not eligible to submit Form I-360 based on the specific policy guidance set forth in section III(E) below.
E. Required Documentation for Requests for Deferred Action
Beneficiaries may request deferred action by submitting the following:
1) A Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with the appropriate, nonwaivable filing fee (currently $375), completed in the format explained below; and 2) All of the documents requested in the Form I-360 filing instructions for widow/widowers.
The beneficiary of the Form I-360 must check box “m. Other, explain:” in Part 2 of the petition and cite the basis for eligibility as “Deferred Action --Surviving spouse of a deceased U.S. citizen, married less than 2 years.” The Form I-360 must be submitted to the Vermont Service Center for deferred action consideration. Note that while USCIS is utilizing Form I-360 for these deferred action requests, such filings are NOT immigrant self-petitions under current law. They should be adjudicated as requests for deferred action only. In addition to the Part 2 information described above, the applicant must complete Parts 1, 3, 4, 7, 9, 10 and 11 of the Form I-360.
F. Decision on Requests for Deferred Action
Requests for deferred action based on the specific policy guidance set forth in this memorandum may only be considered for: 1) surviving spouses of U.S. citizens whose U.S. citizen spouse died before the second anniversary of the marriage and who are unmarried and residing in the United States; and 2) their qualifying children who are residing in the United States.
The following persons are ineligible for deferred action: 1) beneficiaries whose visa petition was denied or revoked for any reason other than or in addition to the death of the petitioning U.S. citizen spouse; 2) widow(er)s who have remarried or were legally separated from the U.S. citizen spouse at the time of the U.S. citizen’s death; and 3) beneficiaries with other serious adverse factors, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety reasons. A grant of deferred action is a discretionary action on the part of USCIS. It is intended that this discretion should be liberally applied to provide a humanitarian benefit to eligible beneficiaries. However, deferred action may be denied for serious adverse factors, whether or not such factors are specifically identified in this guidance.
Requests for deferred action based on the specific policy guidance set forth in this memorandum will not be considered for beneficiaries who: 1) are surviving spouses or qualifying children of non-U.S. citizens; 2) are residing outside the United States; 3) meet the conditional marriage period set forth in INA 201(b)(2)(A)(i); or 4) have remarried subsequent to the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated).
Once a decision on the request for deferred action has been made, the decision must be communicated to the beneficiary via a decision letter. If the request has been granted, the deferred action grant letter must state that the beneficiary is eligible to file Form I-765, Application for Employment Authorization. If the request has been denied, the deferred action denial letter must cite the reasons for the denial. A decision on a request for deferred action falls within the discretion of the Secretary. A denial of a request for deferred action is not subject to administrative appeal or judicial review, see INA § 242(a)(2)(B), and (g).
G. Validity Period for Deferred Action
The validity period of deferred action based on the policy guidance set forth in this memorandum is two (2) years from the date of grant of the Form I-360 request for deferred action.
H. Eligibility for Employment Authorization
The appropriate classification for Form I-765 filed on the basis of a deferred action grant is (C)(14) pursuant to 8 CFR 274a.12(c)(14). Beneficiaries may submit Form I-765, with the appropriate filing fee (currently $340), using this classification at any time after the grant (but prior to the expiration) of deferred action. However, they must demonstrate an economic necessity. The validity period for an employment authorization document (EAD) under the classification (C)(14), based on the specific policy guidance set forth in this memorandum is two (2) years, not to exceed the expiration date of the grant of deferred action.
All requests for employment authorization based on the policy guidance set forth in this memorandum must contain the appropriate required supporting documentation. Applicants must follow currently established filing procedures for the Form I-765 in accordance with the instructions on the form. Fee waiver of the Form I-765 fee is available on a case-by-case basis for substantiated inability to pay as provided in 8 CFR 103.7(c)(1).
A beneficiary whose Form I-485 is being held in abeyance may also file a Form I-765, with the appropriate filing fee. The appropriate classification for employment authorization filed on such a basis is (C)(9) pursuant to 8 CFR 274a.12(c)(9). Evidence of an economic necessity is not required if using this classification. A beneficiary whose application is being held in abeyance may have been issued an employment authorization document valid for one year under category (C)(9). When such an applicant files a Form I-765 for renewal of his or her EAD under the classification (C)(9), based on the specific policy guidance set forth in this memorandum, the validity period will be two
(2) years. An applicant with a valid EAD under the classification (C)(9) may file for renewal no more than 90 days prior to the expiration date of the valid document. The employment authorization may then be granted for two (2) years based on the specific policy guidance set forth in this memorandum.
I. Effect of Grant of Deferred Action
The grant of deferred action by USCIS does not confer or alter any immigration status. It does not convey or imply any waivers of inadmissibility that may exist, regardless of whether that inadmissibility is known to DHS or other agencies at the time of the request for deferred action. A grant of deferred action also does not eliminate any period of prior unlawful presence. However, periods of time in deferred action do not count as unlawful presence for the purposes of sections 212(a)(9)(B) and (C) of the INA. Any period of time in deferred action qualifies as a period of stay authorized by the Secretary of Homeland Security for those purposes.
J. Eligibility for Advance Parole
Beneficiaries granted deferred action based on the policy guidance set forth in this memorandum or whose applications for adjustment of status are being held in abeyance may request advance parole. Such request may be made by filing Form I-131, Application for Travel Document, in accordance with the Form I-131 instructions and with the appropriate fee. Note, however, that departure from the United States and return, even under a grant of advance parole, may adversely affect eligibility for adjustment of status of aliens with past periods of unlawful presence.
K. Implementation
USCIS offices and centers are to begin implementing the instructions established in this memorandum immediately.
L. Contact Information
Questions regarding this memorandum should be directed to the Office of Domestic Operations through appropriate channels.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.
Distribution:
Regional Directors District Directors Field Office Directors National Benefits Center Director Service Center Directors
June 15, 2009
Memorandum
TO: Field Leadership
FROM: Donald Neufeld Acting Director
SUBJECT: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children
I. Purpose
This memorandum provides guidance to U.S. Citizenship and Immigration Services (USCIS) field offices and service centers regarding the processing of surviving spouses of deceased U.S. citizens and qualifying children of the surviving spouses. It affords a new process by which they may apply for deferred action. This policy guidance will be in effect until further notice and may be revised as needed.
II. Background
Section 205. 1 (a)(3)(i)(C) of title 8 of the Code of Federal Regulations (8 CFR) requires that the approval of Form 1-130, Petition for Alien Relative, be automatically revoked upon the death of the petitioner if the beneficiary has not adjusted status in the United States or been inspected and admitted as an immigrant. In such instances, the beneficiary may request a reinstatement of the approval and USCIS, in its discretion, may grant such a request for humanitarian reasons. 8 CFR 20S.1(a)(3)(i)(C)(2).
However, no avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen's death and (1) the immigrant petition filed by the citizen on behalf of the surviving spouse has not been adjudicated by USCIS at the time of the citizen's death, or (2) no petition was filed by the citizen before the citizen's death. This issue has caused a split among the circuit courts of appeal and is also the subject of proposed legislation in the U.S. Congress (bills S. 815 and H.R. 1870).
1 Depending on context, the term beneficiary in this guidance may include both actual and potential beneficiaries of Forms 1-130 filed on their behalf.
III. Policy Guidance
This policy guidance covers only (1) surviving spouses of U.S. citizens who died before the second anniversary of the marriage, who have not remarried and were not legally separated from the citizen spouse at the time of the citizen’s death, and who are residing in the United States,2 and (2) such surviving spouses’ qualifying children. For purposes of this policy guidance, “qualifying children” are any children of the surviving spouse of the deceased U.S. citizen who remain unmarried and under 21 years of age (age determinations for beneficiaries of Forms I-130 should be made as provided in section 201(f) of the INA).
This guidance applies to the aforementioned beneficiaries without regard to their manner of entry into the United States. Such surviving spouses are covered without restrictions on how long the U.S. citizen spouse has been deceased as long as the surviving spouse has not remarried.3
This guidance does not cover surviving spouses or qualifying children of deceased U.S. citizens who are residing outside the United States or surviving spouses and children of a lawful permanent resident or other non-U.S. citizen. This guidance also does not cover surviving spouses or qualifying children of deceased U.S. citizens if the surviving spouse remarried at any time after the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated). This guidance does not cover any beneficiary who was legally separated from his or her U.S. citizen spouse at the time of the citizen’s death, or such beneficiary’s children.
Since current section 201(b)(2)(A)(i) of the Immigration and Nationality Act (INA) treats covered widow(er)s of U.S. citizens and their children as immediate relatives based upon a self-petition, they are not covered by this guidance. They may file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, in accordance with the instructions on the Form.
In order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens, USCIS is instituting the following policy guidance, which is effective immediately and until further notice.
A. Form I-130 Approved Prior to the Death of the U.S. Citizen Spouse (Petitioner)
Upon the death of the U.S. citizen petitioner, the approved Form I-130 is automatically revoked pursuant to 8 CFR 205.1(a)(3)(i)(C). The beneficiary, however, may request reinstatement of the revoked petition pursuant to 8 CFR 205.1(a)(3)(i)(C)(2). USCIS may then exercise discretion and grant the reinstatement after considering the facts and humanitarian considerations of the particular
2 Section III(A) of this memorandum, however, regarding humanitarian reinstatement, shall apply to surviving spouses outside the United States. 3 This guidance is also applicable to a beneficiary who entered the United States on a K-1 Nonimmigrant Visa and married a U.S. citizen other than the U.S. citizen petitioner who filed the I-129F. If the U.S. citizen spouse died before the second anniversary of the marriage, the widow(er) is eligible for deferred action or humanitarian reinstatement as described herein.
case. If the request for humanitarian reinstatement is approved, the beneficiary may proceed to the adjustment of status or consular processing stage.
This memorandum does not alter the process for reviewing a Form I-130 returned to USCIS by a U.S. Consular Officer overseas when the beneficiary is seeking a humanitarian reinstatement. If USCIS reinstates the Form I-130 returned by the consular officer, the I-130 should be forwarded to the National Visa Center to allow the beneficiary to resume consular processing. Section III(A) of this guidance, relating to humanitarian reinstatement, applies to beneficiaries who are within or outside the United States.
If a beneficiary covered by this guidance requests humanitarian reinstatement, adjudicators should presume that humanitarian reasons support a grant of the request. Absent extraordinary factors or a failure to meet the regulatory requirements of 8 CFR 205.1(a)(3)(i)(C)(2), adjudicators should favorably exercise discretion accordingly. If the request for reinstatement cannot be granted for any reason other than confirmed or suspected fraud or issues of criminality or national security, the beneficiary should be informed that he or she may request deferred action in the manner described in III(E) below.
In a case governed by First, Sixth or Ninth Circuit law, officers should consult with local USCIS counsel before treating an approved spousal immediate relative petition as “revoked” under 8 CFR 205.1(a)(3)(i)(C). Courts in those jurisdictions have held that the visa petitioner’s death does not end a surviving spouse’s eligibility for classification as an immediate relative. Taing v. Napolitano, ___ F.3d ___, 2009 WL 1395836 (1st Cir. 2009); Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009); Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006).
B. Form I-130 Pending at the Time of Death of the U.S. Citizen Spouse (Petitioner) – Married Less than 2 Years at Time of Death
Once USCIS has received a copy of the U.S. citizen petitioner’s death certificate, the pending, stand¬alone Form I-130 should be held in abeyance at the pending location. Petitions may be transferred to the Vermont Service Center to be consolidated with the A-file housing a deferred action request, if such a request is made by the beneficiary (see further guidance below).
Any concurrently filed Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-130, should be held in abeyance at the National Benefits Center until further guidance. The beneficiary will remain eligible to receive the interim benefits of advance parole and employment authorization on the basis of the pending adjustment of status application.
If a Form I-485 was not concurrently filed, the beneficiary should be informed that he or she may request deferred action in the manner described in section III(E) below.
Note: In instances where the beneficiary and deceased U.S. citizen petitioner were married for at least two years at the time of the petitioner’s death, the Form I-130 should be denied under existing
procedures. Instructions should be provided to the beneficiary regarding the availability of the Form I-360 as a special immigrant widow/widower. Any associated Form I-485 should also be denied.
C. Form I-130 Denied (Prior to the Issuance of this Guidance) due to the Death of the U.S. Citizen Spouse (Petitioner)
A beneficiary who is the surviving spouse of a U.S. citizen petitioner and whose petition was denied by USCIS (1) due to the death of the U.S. citizen petitioner, and (2) prior to the issuance of this guidance, may request deferred action in the manner described in section III(E) below.
D. Form I-130 Not Filed Prior to the Death of the U.S. Citizen Spouse
A beneficiary who was legally married to a now deceased U.S. citizen at the time of the U.S. citizen’s death, but for whom no Form I-130 was filed, may request deferred action in the manner described in section III(E) below.
If the beneficiary was not legally married to, or was legally separated from, the deceased U.S. citizen at the time of the U.S. citizen’s death, a qualifying relationship does not exist. The beneficiary is therefore not eligible to submit Form I-360 based on the specific policy guidance set forth in section III(E) below.
E. Required Documentation for Requests for Deferred Action
Beneficiaries may request deferred action by submitting the following:
1) A Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with the appropriate, nonwaivable filing fee (currently $375), completed in the format explained below; and 2) All of the documents requested in the Form I-360 filing instructions for widow/widowers.
The beneficiary of the Form I-360 must check box “m. Other, explain:” in Part 2 of the petition and cite the basis for eligibility as “Deferred Action --Surviving spouse of a deceased U.S. citizen, married less than 2 years.” The Form I-360 must be submitted to the Vermont Service Center for deferred action consideration. Note that while USCIS is utilizing Form I-360 for these deferred action requests, such filings are NOT immigrant self-petitions under current law. They should be adjudicated as requests for deferred action only. In addition to the Part 2 information described above, the applicant must complete Parts 1, 3, 4, 7, 9, 10 and 11 of the Form I-360.
F. Decision on Requests for Deferred Action
Requests for deferred action based on the specific policy guidance set forth in this memorandum may only be considered for: 1) surviving spouses of U.S. citizens whose U.S. citizen spouse died before the second anniversary of the marriage and who are unmarried and residing in the United States; and 2) their qualifying children who are residing in the United States.
The following persons are ineligible for deferred action: 1) beneficiaries whose visa petition was denied or revoked for any reason other than or in addition to the death of the petitioning U.S. citizen spouse; 2) widow(er)s who have remarried or were legally separated from the U.S. citizen spouse at the time of the U.S. citizen’s death; and 3) beneficiaries with other serious adverse factors, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety reasons. A grant of deferred action is a discretionary action on the part of USCIS. It is intended that this discretion should be liberally applied to provide a humanitarian benefit to eligible beneficiaries. However, deferred action may be denied for serious adverse factors, whether or not such factors are specifically identified in this guidance.
Requests for deferred action based on the specific policy guidance set forth in this memorandum will not be considered for beneficiaries who: 1) are surviving spouses or qualifying children of non-U.S. citizens; 2) are residing outside the United States; 3) meet the conditional marriage period set forth in INA 201(b)(2)(A)(i); or 4) have remarried subsequent to the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated).
Once a decision on the request for deferred action has been made, the decision must be communicated to the beneficiary via a decision letter. If the request has been granted, the deferred action grant letter must state that the beneficiary is eligible to file Form I-765, Application for Employment Authorization. If the request has been denied, the deferred action denial letter must cite the reasons for the denial. A decision on a request for deferred action falls within the discretion of the Secretary. A denial of a request for deferred action is not subject to administrative appeal or judicial review, see INA § 242(a)(2)(B), and (g).
G. Validity Period for Deferred Action
The validity period of deferred action based on the policy guidance set forth in this memorandum is two (2) years from the date of grant of the Form I-360 request for deferred action.
H. Eligibility for Employment Authorization
The appropriate classification for Form I-765 filed on the basis of a deferred action grant is (C)(14) pursuant to 8 CFR 274a.12(c)(14). Beneficiaries may submit Form I-765, with the appropriate filing fee (currently $340), using this classification at any time after the grant (but prior to the expiration) of deferred action. However, they must demonstrate an economic necessity. The validity period for an employment authorization document (EAD) under the classification (C)(14), based on the specific policy guidance set forth in this memorandum is two (2) years, not to exceed the expiration date of the grant of deferred action.
All requests for employment authorization based on the policy guidance set forth in this memorandum must contain the appropriate required supporting documentation. Applicants must follow currently established filing procedures for the Form I-765 in accordance with the instructions on the form. Fee waiver of the Form I-765 fee is available on a case-by-case basis for substantiated inability to pay as provided in 8 CFR 103.7(c)(1).
A beneficiary whose Form I-485 is being held in abeyance may also file a Form I-765, with the appropriate filing fee. The appropriate classification for employment authorization filed on such a basis is (C)(9) pursuant to 8 CFR 274a.12(c)(9). Evidence of an economic necessity is not required if using this classification. A beneficiary whose application is being held in abeyance may have been issued an employment authorization document valid for one year under category (C)(9). When such an applicant files a Form I-765 for renewal of his or her EAD under the classification (C)(9), based on the specific policy guidance set forth in this memorandum, the validity period will be two
(2) years. An applicant with a valid EAD under the classification (C)(9) may file for renewal no more than 90 days prior to the expiration date of the valid document. The employment authorization may then be granted for two (2) years based on the specific policy guidance set forth in this memorandum.
I. Effect of Grant of Deferred Action
The grant of deferred action by USCIS does not confer or alter any immigration status. It does not convey or imply any waivers of inadmissibility that may exist, regardless of whether that inadmissibility is known to DHS or other agencies at the time of the request for deferred action. A grant of deferred action also does not eliminate any period of prior unlawful presence. However, periods of time in deferred action do not count as unlawful presence for the purposes of sections 212(a)(9)(B) and (C) of the INA. Any period of time in deferred action qualifies as a period of stay authorized by the Secretary of Homeland Security for those purposes.
J. Eligibility for Advance Parole
Beneficiaries granted deferred action based on the policy guidance set forth in this memorandum or whose applications for adjustment of status are being held in abeyance may request advance parole. Such request may be made by filing Form I-131, Application for Travel Document, in accordance with the Form I-131 instructions and with the appropriate fee. Note, however, that departure from the United States and return, even under a grant of advance parole, may adversely affect eligibility for adjustment of status of aliens with past periods of unlawful presence.
K. Implementation
USCIS offices and centers are to begin implementing the instructions established in this memorandum immediately.
L. Contact Information
Questions regarding this memorandum should be directed to the Office of Domestic Operations through appropriate channels.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.
Distribution:
Regional Directors District Directors Field Office Directors National Benefits Center Director Service Center Directors
Monday, November 23, 2009
Writ Coram Nobis - Requirements
The writ of error coram nobis is a common law writ that means, "an error remains in our presence." Only the court that issued the judgment has jurisdiction to grant the writ. To warrant coram nobis relief, the petitioner must satisfy four requirements, including a showing that fundamental error occurred in the proceedings and that there are valid reasons why the petitioner did not act to attack the conviction earlier. See Hirabayashi I,. United States, 828 F.2d 591. 604 (9th Cir.1987). The Ninth Circuit Court of Appeals, the jurisdiction in which this case arises, has made it clear that the writ of error coram nobis is a "highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable." United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir.2007). "[A] petitioner must show the following to qualify for coram nobis relief: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of
Article 111; and (4) the error is of the most fundamental character." Id. at 1006 (citation omitted).
Article 111; and (4) the error is of the most fundamental character." Id. at 1006 (citation omitted).
Immigration Consequences of Guilty Plea in Criminal Proceedings in CT - Conn. Gen. Stat. § 54-1j
Sec. 54-1j. Ascertainment that defendant understands possible immigration and naturalization consequences of guilty or nolo contendere plea. (a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands that if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States. If the defendant has not discussed these possible consequences with the defendant's attorney, the court shall permit the defendant to do so prior to accepting the defendant's plea.
(b) The defendant shall not be required at the time of the plea to disclose the defendant's legal status in the United States to the court.
(c) If the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant's plea and conviction may have one of the enumerated consequences, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.
(P.A. 82-177; P.A. 97-256, S. 6; P.A. 03-81, S. 1.)
History: P.A. 97-256 amended Subsec. (c) by imposing a three-year time period after the acceptance of the plea for the defendant to show that his plea and conviction may have one of the enumerated consequences, and deleting provision that, in the absence of a record that the court provided the required advice, the defendant is presumed not to have received such advice; P.A. 03-81 amended Subsec. (a) to replace former provision prohibiting the court accepting plea unless the court "advises" the defendant of the possible immigration or naturalization consequences of conviction if the defendant is not a citizen and setting forth specific language of such advisement with provision that prohibits the court accepting plea unless the court first addresses the defendant personally and determines that the defendant fully understands such possible consequences, add "removal" from the United States as a possible consequence and add provision requiring the court to permit the defendant to discuss these possible consequences with the defendant's attorney prior to accepting plea, amended Subsec. (b) to make a technical change for purposes of gender neutrality and amended Subsec. (c) to make provisions applicable if court fails "to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section" rather than if court fails "to advise a defendant, as required in subsection (a) of this section" and make a technical change for purposes of gender neutrality.
Court found that the time limit for filing motion was procedural in nature and therefore could be applied retroactively. 251 C. 617. Warning of deportation and denial was substantial compliance with provisions of statute since defendant was warned guilty plea implicates immigration status. 257 C. 653.
Court need only inform defendant of potential deportation consequences rather than engaging defendant in a manner to ensure full understanding. 62 CA 805. Section is in place only to call defendant's attention to potential immigration consequences under federal law, not to inform defendant of every possible consequence of a plea. 68 CA 499.
(b) The defendant shall not be required at the time of the plea to disclose the defendant's legal status in the United States to the court.
(c) If the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant's plea and conviction may have one of the enumerated consequences, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.
(P.A. 82-177; P.A. 97-256, S. 6; P.A. 03-81, S. 1.)
History: P.A. 97-256 amended Subsec. (c) by imposing a three-year time period after the acceptance of the plea for the defendant to show that his plea and conviction may have one of the enumerated consequences, and deleting provision that, in the absence of a record that the court provided the required advice, the defendant is presumed not to have received such advice; P.A. 03-81 amended Subsec. (a) to replace former provision prohibiting the court accepting plea unless the court "advises" the defendant of the possible immigration or naturalization consequences of conviction if the defendant is not a citizen and setting forth specific language of such advisement with provision that prohibits the court accepting plea unless the court first addresses the defendant personally and determines that the defendant fully understands such possible consequences, add "removal" from the United States as a possible consequence and add provision requiring the court to permit the defendant to discuss these possible consequences with the defendant's attorney prior to accepting plea, amended Subsec. (b) to make a technical change for purposes of gender neutrality and amended Subsec. (c) to make provisions applicable if court fails "to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section" rather than if court fails "to advise a defendant, as required in subsection (a) of this section" and make a technical change for purposes of gender neutrality.
Court found that the time limit for filing motion was procedural in nature and therefore could be applied retroactively. 251 C. 617. Warning of deportation and denial was substantial compliance with provisions of statute since defendant was warned guilty plea implicates immigration status. 257 C. 653.
Court need only inform defendant of potential deportation consequences rather than engaging defendant in a manner to ensure full understanding. 62 CA 805. Section is in place only to call defendant's attention to potential immigration consequences under federal law, not to inform defendant of every possible consequence of a plea. 68 CA 499.
Welfare fraud is not a “theft offense” - 24 I. & N. Dec. 436, MATTER OF LIDUINA DE FATIMA GARCIA-MADRUGA
24 I. & N. Dec. 436, Interim Decision 3596, 2008 WL 192487 (BIA)
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
MATTER OF LIDUINA DE FATIMA GARCIA-MADRUGA, RESPONDENT
Decided January 17, 2008
(1) A “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2000), ordinarily requires the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent. Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000), clarified.
(2) The respondent's welfare fraud offense in violation of section 40-6-15 of the General Laws of Rhode Island is not a “theft offense” under section 101(a)(43)(G) of the Act.
FOR RESPONDENT:
John H. Ruginski, Jr., Esquire, Providence, Rhode Island
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated August 21, 2007, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an alien convicted of an aggravated felony “theft offense” for which the term of imprisonment was at least 1 year under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2000). The Immigration Judge also incorporated a separate decision denying the respondent's motion to terminate the proceedings. The respondent has appealed from the Immigration Judge's decision. The Department of Homeland Security (“DHS”) has not filed a brief in this matter. [FN1] The respondent's appeal will be sustained, and the proceedings will be terminated.
I. FACTUAL AND PROCEDURAL HISTORY
The record reflects that the respondent was convicted on March 31, 2006, of welfare fraud in violation of section 40-6-15 of the General Laws of Rhode Island, for which she was sentenced to a 5-year term of imprisonment. That statute provides as follows:
Any person who by any fraudulent device obtains, or attempts to obtain, or aids or abets any person to obtain public assistance, pursuant to this chapter, to which he or she is not entitled, or who willfully fails to report income or resources as provided in this chapter, shall be guilty of larceny and, upon conviction thereof, shall be punished by imprisonment of not more than five (5) years or by a fine of not more than one thousand dollars ($1,000) or both, if the value of the public assistance to which he or she is not entitled shall exceed five hundred dollars ($500), or by imprisonment by less than one year or by a fine of not more than five hundred dollars ($500) or by both, if the value of the public assistance to which he or she is not entitled shall not exceed five hundred dollars ($500).
The conviction record reflects that the respondent was found guilty under that portion of the above statute that criminalizes fraudulently obtaining, or attempting to obtain, public assistance to which she was not entitled. Citing Matter of V-Z-S-, 22 I&N Dec. 1338, 1346 (BIA 2000), the Immigration Judge concluded that the respondent's offense of welfare fraud qualified as an aggravated felony under section 101(a)(43)(G) of the Act.
II. ISSUE
On appeal, the respondent contends that the Immigration Judge erred in finding that her Rhode Island welfare fraud offense fits within the definition of a “theft offense” as contemplated by section 101(a)(43)(G) of the Act. She asserts that the offense defined by the portion of the statute under which she was convicted-obtaining, or attempting to obtain, or aiding or abetting any person to obtain, public assistance to which she is not entitled, by fraudulent device-is not a “theft offense.” She argues that it represents instead a separate and distinct aggravated felony, i.e., “an offense that involves fraud or deceit” under section 101(a)(43)(M)(i) of the Act. [FN2]
III. ANALYSIS
In Matter of V-Z-S-, supra, we addressed the question of what constitutes a “theft offense” for purposes of section 101(a)(43)(G) of the Act and concluded, after an exhaustive analysis of relevant authorities, that “a taking of property constitutes a ‘theft’ whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” Id. at 1346. Our focus in that case was not, however, on the meaning of a “taking” and whether theft could overlap with fraud, but on whether the deprivation must be permanent. [FN3] Specifically, we examined, among other things, Federal laws, State statutes, decisions of several Federal courts of appeals, and section 223.2(1) of the Model Penal Code, defining “theft.” However, we did not consider whether a conviction under the adjoining section of the Model Penal Code, entitled “Theft by Deception,” would represent a “theft offense.” See Model Penal Code § 223.3.
Our decision in Matter of V-Z-S-, supra, has been well received by the Federal courts. Moreover, in the wake of Matter of V-Z-S-, every Federal court of appeals to have addressed the meaning of “theft offense” under section 101(a)(43)(G) has determined that it necessarily includes the requirement that the property have been obtained from its owner “without consent.” See Burke v. Mukasey, No. 06-60710, 2007 WL 4295386, at *2 (5th Cir. Dec. 10, 2007) (per curiam) (involving a conviction for criminal possession of stolen property); Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir. 2004) (involving a conviction for larceny); Nugent v. Ashcroft, 367 F.3d 162, 173-74 (3d Cir. 2004) (involving a conviction for theft by deception for having passed a bad check); United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc) (involving a conviction for petty theft of cigarettes and beer); United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001) (involving a conviction for attempting to knowingly receive or transfer a stolen motor vehicle); Hernandez-Mancilla v. INS, 246 F.3d 1002, 1008-09 (7th Cir. 2001) (involving a conviction for possession of a stolen motor vehicle). The Supreme Court has also observed with apparent approval that “[t]he Ninth Circuit, like other Circuits and the BIA, accepted as a generic definition of theft, the ‘taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.”’ Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 820 (2007) (quoting Penuliar v. Gonzales, 435 F.3d 961, 969 (9th Cir. 2006)). Other than *439 Nugent v. Ashcroft, supra, however, none of these cases addressed whether fraud crimes may also be encompassed in the definition of theft.
In contrast, the Fourth Circuit examined the interplay between a “theft offense” and “an offense that involves fraud” in Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005). [FN4] The alien in that case was convicted of the fraudulent use of a credit card for having misrepresented that she was the holder of a credit card, without the card holder's consent, to obtain property in excess of $200. Like the respondent, the alien argued that she was not convicted of a “theft offense” under section 101(a)(43)(G) of the Act but, rather, a “fraud” offense covered by section 101(a)(43)(M)(i). The court noted our unpublished order in that case, in which we agreed with the alien that her offense “‘by its terms, involves fraud,”’ but nonetheless found that the theft and fraud provisions of sections 101(a)(43)(G) and (M)(i) were not mutually exclusive and that “‘a crime which involves fraud may also involve theft.”’ Id. at 279 (quoting the Board's decision). After determining that the plain text of section 101(a)(43) shows that Congress specifically distinguished fraud from theft, and that it meant for the two offenses to be treated differently, the court examined the Black's Law Dictionary definition of each from several editions, concluding as follows:
When a theft offense has occurred, property has been obtained from its owner “without consent”; in a fraud scheme, the owner has voluntarily “surrendered” his property, because of an “intentional perversion of truth,” or otherwise “act[ed] upon” a false representation to his injury. The key and controlling distinction between these two crimes is therefore the “consent” element-theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained.
*440 Id. at 282. Thus, the court held that the alien's crime would not qualify as an aggravated felony “theft offense” under section 101(a)(43)(G) of the Act under the “modified” categorical approach, as the indictment underlying the alien's conviction for credit card fraud did not charge that she had actually obtained any property from the cardholder or taken goods without the consent of the merchant.
In sum, the Federal courts of appeals' analysis of theft offenses under section 101(a)(43)(G) of the Act requires that the stolen property be obtained from its owner “without consent,” and the courts have read Matter of V-Z-S-, supra, to include this element as well. We believe the courts' interpretation of Matter of V-Z-S- is correct, since the natural reading of the definition we adopted there, i.e., that there must be a “ taking” of property (as opposed, e.g., to an acquiring of property), is that the property must be obtained “without consent.”
We therefore find that we are in substantial agreement with Soliman v. Gonzales, supra, that the offenses described in sections 101(a)(43)(G) and (M)(i) of the Act ordinarily involve distinct crimes. Whereas the taking of property without consent is required for a section 101(a)(43)(G) “theft offense,” a section 101(a)(43)(M)(i) “offense that involves fraud or deceit” ordinarily involves the taking or acquisition of property with consent that has been fraudulently obtained [FN5] Accordingly, we now refine the definition in Matter of V-Z-S-, supra, to clarify that a theft offense within the meaning of section 101(a)(43)(G) consists of the taking of, or exercise of control over, property [FN6] without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.
IV. CONCLUSION
We conclude that the respondent's offense of welfare fraud under section 40-6-15 of the General Laws of Rhode Island does not constitute the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership. The respondent has therefore not been convicted of an aggravated felony “theft offense” as defined in section 101(a)(43)(G) of the Act. Accordingly, the respondent's appeal will be sustained, and the proceedings will be terminated.
ORDER: The appeal is sustained, and the removal proceedings are terminated.
FN1. The DHS did, however, submit a brief on the issue before the Immigration Judge.
FN2. An aggravated felony under section 101(a)(43)(M)(i) of the Act is defined as an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.
FN3. We note that the statute involved in Matter of V-Z-S-, supra, specifically required a taking “‘without the consent of the owner.”’ Id. at 1347 (quoting section 10851 of the California Vehicle Code).
FN4. In Nugent v. Ashcroft, supra, the Third Circuit likewise considered the relationship between a section 101(a)(43)(G) “theft offense” and a section 101(a)(43)(M)(i) “offense involving fraud or deceit.” The court found that Pennsylvania's theft by deception statute fell under section 101 (a)(43)(G) as a “theft offense,” but also was in the nature of an offense based on fraud or deceit under section 101(a)(43)(M)(i). Id. at 176-79. The court further held that, for such a “hybrid” offense consisting of both a theft and a fraud crime, the elements of both needed to be satisfied before an alien would be removable. See also Valansi v. Ashcroft, 278 F.3d 203, 213 n.8 (3d Cir. 2002) (“The fact that the BIA classified embezzlement as … a theft offense under § 1101(a)(43)(G) does not mean that it could not also classify it as an offense involving fraud or deceit under § 1101(a)(43)(M)(i)”). However, to date, the Third Circuit has not identified another “hybrid” offense occasioning application of Nugent v. Ashcroft, supra. See, e.g., Bobb v. Att'y Gen. of U.S., 458 F.3d 213 (3d Cir. 2006) (distinguishing Nugent v. Ashcroft).
FN5. However, the definition in Soliman v. Gonzales, supra, of a fraud offense is not before us, and we need not decide whether it is sufficiently inclusive. That is, we do not discount the possibility that the theft and fraud aggravated felony compartments are not watertight such that certain crimes, like the theft by deception offense at issue in Nugent v. Ashcroft, supra, may constitute both a theft offense and one “involv[ing] fraud.” See Valansi v. Ashcroft, supra (holding that the elements of an offense that “involves fraud” need not be coextensive with a crime of fraud); see also Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) (same). That does not mean, however, that we subscribe to the Nugent court's holding that in such an instance the elements of both aggravated felony branches must be demonstrated. Nor need we determine in this case the precise meaning of “consent,” for example, whether it applies to consent induced by coercion. See 18 U.S.C. § 1951(b)(2) (2000).
FN6. The language “exercise of control” does not come from Matter of V-Z-S-, but we incorporate it inasmuch as the Supreme Court in Duenas-Alvarez v. Gonzalez, supra, employed that phrase in summarizing the theft definition adopted by the courts of appeals and the Board. Presumably, the “exercise of control” formulation is designed to better capture the concept of an indirect “taking” or a situation where the owner originally relinquished the property on a consensual, nonfraudulently induced basis (e.g., where it was lent to the offender for a limited time or purpose, but the offender later determined to keep it for himself).
24 I. & N. Dec. 436, Interim Decision 3596, 2008 WL 192487 (BIA)
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
MATTER OF LIDUINA DE FATIMA GARCIA-MADRUGA, RESPONDENT
Decided January 17, 2008
(1) A “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2000), ordinarily requires the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent. Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000), clarified.
(2) The respondent's welfare fraud offense in violation of section 40-6-15 of the General Laws of Rhode Island is not a “theft offense” under section 101(a)(43)(G) of the Act.
FOR RESPONDENT:
John H. Ruginski, Jr., Esquire, Providence, Rhode Island
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated August 21, 2007, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an alien convicted of an aggravated felony “theft offense” for which the term of imprisonment was at least 1 year under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2000). The Immigration Judge also incorporated a separate decision denying the respondent's motion to terminate the proceedings. The respondent has appealed from the Immigration Judge's decision. The Department of Homeland Security (“DHS”) has not filed a brief in this matter. [FN1] The respondent's appeal will be sustained, and the proceedings will be terminated.
I. FACTUAL AND PROCEDURAL HISTORY
The record reflects that the respondent was convicted on March 31, 2006, of welfare fraud in violation of section 40-6-15 of the General Laws of Rhode Island, for which she was sentenced to a 5-year term of imprisonment. That statute provides as follows:
Any person who by any fraudulent device obtains, or attempts to obtain, or aids or abets any person to obtain public assistance, pursuant to this chapter, to which he or she is not entitled, or who willfully fails to report income or resources as provided in this chapter, shall be guilty of larceny and, upon conviction thereof, shall be punished by imprisonment of not more than five (5) years or by a fine of not more than one thousand dollars ($1,000) or both, if the value of the public assistance to which he or she is not entitled shall exceed five hundred dollars ($500), or by imprisonment by less than one year or by a fine of not more than five hundred dollars ($500) or by both, if the value of the public assistance to which he or she is not entitled shall not exceed five hundred dollars ($500).
The conviction record reflects that the respondent was found guilty under that portion of the above statute that criminalizes fraudulently obtaining, or attempting to obtain, public assistance to which she was not entitled. Citing Matter of V-Z-S-, 22 I&N Dec. 1338, 1346 (BIA 2000), the Immigration Judge concluded that the respondent's offense of welfare fraud qualified as an aggravated felony under section 101(a)(43)(G) of the Act.
II. ISSUE
On appeal, the respondent contends that the Immigration Judge erred in finding that her Rhode Island welfare fraud offense fits within the definition of a “theft offense” as contemplated by section 101(a)(43)(G) of the Act. She asserts that the offense defined by the portion of the statute under which she was convicted-obtaining, or attempting to obtain, or aiding or abetting any person to obtain, public assistance to which she is not entitled, by fraudulent device-is not a “theft offense.” She argues that it represents instead a separate and distinct aggravated felony, i.e., “an offense that involves fraud or deceit” under section 101(a)(43)(M)(i) of the Act. [FN2]
III. ANALYSIS
In Matter of V-Z-S-, supra, we addressed the question of what constitutes a “theft offense” for purposes of section 101(a)(43)(G) of the Act and concluded, after an exhaustive analysis of relevant authorities, that “a taking of property constitutes a ‘theft’ whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” Id. at 1346. Our focus in that case was not, however, on the meaning of a “taking” and whether theft could overlap with fraud, but on whether the deprivation must be permanent. [FN3] Specifically, we examined, among other things, Federal laws, State statutes, decisions of several Federal courts of appeals, and section 223.2(1) of the Model Penal Code, defining “theft.” However, we did not consider whether a conviction under the adjoining section of the Model Penal Code, entitled “Theft by Deception,” would represent a “theft offense.” See Model Penal Code § 223.3.
Our decision in Matter of V-Z-S-, supra, has been well received by the Federal courts. Moreover, in the wake of Matter of V-Z-S-, every Federal court of appeals to have addressed the meaning of “theft offense” under section 101(a)(43)(G) has determined that it necessarily includes the requirement that the property have been obtained from its owner “without consent.” See Burke v. Mukasey, No. 06-60710, 2007 WL 4295386, at *2 (5th Cir. Dec. 10, 2007) (per curiam) (involving a conviction for criminal possession of stolen property); Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir. 2004) (involving a conviction for larceny); Nugent v. Ashcroft, 367 F.3d 162, 173-74 (3d Cir. 2004) (involving a conviction for theft by deception for having passed a bad check); United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc) (involving a conviction for petty theft of cigarettes and beer); United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001) (involving a conviction for attempting to knowingly receive or transfer a stolen motor vehicle); Hernandez-Mancilla v. INS, 246 F.3d 1002, 1008-09 (7th Cir. 2001) (involving a conviction for possession of a stolen motor vehicle). The Supreme Court has also observed with apparent approval that “[t]he Ninth Circuit, like other Circuits and the BIA, accepted as a generic definition of theft, the ‘taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.”’ Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 820 (2007) (quoting Penuliar v. Gonzales, 435 F.3d 961, 969 (9th Cir. 2006)). Other than *439 Nugent v. Ashcroft, supra, however, none of these cases addressed whether fraud crimes may also be encompassed in the definition of theft.
In contrast, the Fourth Circuit examined the interplay between a “theft offense” and “an offense that involves fraud” in Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005). [FN4] The alien in that case was convicted of the fraudulent use of a credit card for having misrepresented that she was the holder of a credit card, without the card holder's consent, to obtain property in excess of $200. Like the respondent, the alien argued that she was not convicted of a “theft offense” under section 101(a)(43)(G) of the Act but, rather, a “fraud” offense covered by section 101(a)(43)(M)(i). The court noted our unpublished order in that case, in which we agreed with the alien that her offense “‘by its terms, involves fraud,”’ but nonetheless found that the theft and fraud provisions of sections 101(a)(43)(G) and (M)(i) were not mutually exclusive and that “‘a crime which involves fraud may also involve theft.”’ Id. at 279 (quoting the Board's decision). After determining that the plain text of section 101(a)(43) shows that Congress specifically distinguished fraud from theft, and that it meant for the two offenses to be treated differently, the court examined the Black's Law Dictionary definition of each from several editions, concluding as follows:
When a theft offense has occurred, property has been obtained from its owner “without consent”; in a fraud scheme, the owner has voluntarily “surrendered” his property, because of an “intentional perversion of truth,” or otherwise “act[ed] upon” a false representation to his injury. The key and controlling distinction between these two crimes is therefore the “consent” element-theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained.
*440 Id. at 282. Thus, the court held that the alien's crime would not qualify as an aggravated felony “theft offense” under section 101(a)(43)(G) of the Act under the “modified” categorical approach, as the indictment underlying the alien's conviction for credit card fraud did not charge that she had actually obtained any property from the cardholder or taken goods without the consent of the merchant.
In sum, the Federal courts of appeals' analysis of theft offenses under section 101(a)(43)(G) of the Act requires that the stolen property be obtained from its owner “without consent,” and the courts have read Matter of V-Z-S-, supra, to include this element as well. We believe the courts' interpretation of Matter of V-Z-S- is correct, since the natural reading of the definition we adopted there, i.e., that there must be a “ taking” of property (as opposed, e.g., to an acquiring of property), is that the property must be obtained “without consent.”
We therefore find that we are in substantial agreement with Soliman v. Gonzales, supra, that the offenses described in sections 101(a)(43)(G) and (M)(i) of the Act ordinarily involve distinct crimes. Whereas the taking of property without consent is required for a section 101(a)(43)(G) “theft offense,” a section 101(a)(43)(M)(i) “offense that involves fraud or deceit” ordinarily involves the taking or acquisition of property with consent that has been fraudulently obtained [FN5] Accordingly, we now refine the definition in Matter of V-Z-S-, supra, to clarify that a theft offense within the meaning of section 101(a)(43)(G) consists of the taking of, or exercise of control over, property [FN6] without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.
IV. CONCLUSION
We conclude that the respondent's offense of welfare fraud under section 40-6-15 of the General Laws of Rhode Island does not constitute the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership. The respondent has therefore not been convicted of an aggravated felony “theft offense” as defined in section 101(a)(43)(G) of the Act. Accordingly, the respondent's appeal will be sustained, and the proceedings will be terminated.
ORDER: The appeal is sustained, and the removal proceedings are terminated.
FN1. The DHS did, however, submit a brief on the issue before the Immigration Judge.
FN2. An aggravated felony under section 101(a)(43)(M)(i) of the Act is defined as an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.
FN3. We note that the statute involved in Matter of V-Z-S-, supra, specifically required a taking “‘without the consent of the owner.”’ Id. at 1347 (quoting section 10851 of the California Vehicle Code).
FN4. In Nugent v. Ashcroft, supra, the Third Circuit likewise considered the relationship between a section 101(a)(43)(G) “theft offense” and a section 101(a)(43)(M)(i) “offense involving fraud or deceit.” The court found that Pennsylvania's theft by deception statute fell under section 101 (a)(43)(G) as a “theft offense,” but also was in the nature of an offense based on fraud or deceit under section 101(a)(43)(M)(i). Id. at 176-79. The court further held that, for such a “hybrid” offense consisting of both a theft and a fraud crime, the elements of both needed to be satisfied before an alien would be removable. See also Valansi v. Ashcroft, 278 F.3d 203, 213 n.8 (3d Cir. 2002) (“The fact that the BIA classified embezzlement as … a theft offense under § 1101(a)(43)(G) does not mean that it could not also classify it as an offense involving fraud or deceit under § 1101(a)(43)(M)(i)”). However, to date, the Third Circuit has not identified another “hybrid” offense occasioning application of Nugent v. Ashcroft, supra. See, e.g., Bobb v. Att'y Gen. of U.S., 458 F.3d 213 (3d Cir. 2006) (distinguishing Nugent v. Ashcroft).
FN5. However, the definition in Soliman v. Gonzales, supra, of a fraud offense is not before us, and we need not decide whether it is sufficiently inclusive. That is, we do not discount the possibility that the theft and fraud aggravated felony compartments are not watertight such that certain crimes, like the theft by deception offense at issue in Nugent v. Ashcroft, supra, may constitute both a theft offense and one “involv[ing] fraud.” See Valansi v. Ashcroft, supra (holding that the elements of an offense that “involves fraud” need not be coextensive with a crime of fraud); see also Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) (same). That does not mean, however, that we subscribe to the Nugent court's holding that in such an instance the elements of both aggravated felony branches must be demonstrated. Nor need we determine in this case the precise meaning of “consent,” for example, whether it applies to consent induced by coercion. See 18 U.S.C. § 1951(b)(2) (2000).
FN6. The language “exercise of control” does not come from Matter of V-Z-S-, but we incorporate it inasmuch as the Supreme Court in Duenas-Alvarez v. Gonzalez, supra, employed that phrase in summarizing the theft definition adopted by the courts of appeals and the Board. Presumably, the “exercise of control” formulation is designed to better capture the concept of an indirect “taking” or a situation where the owner originally relinquished the property on a consensual, nonfraudulently induced basis (e.g., where it was lent to the offender for a limited time or purpose, but the offender later determined to keep it for himself).
24 I. & N. Dec. 436, Interim Decision 3596, 2008 WL 192487 (BIA)
Sunday, November 22, 2009
Immigration Attorney Fraud - Georgia attorney pleads guilty to filing fraudulent immigration documents
November 18, 2009
Georgia attorney pleads guilty to filing fraudulent immigration documents
Lawyer helped clients obtain legal immigration status through fraud
ATLANTA - A 63-year-old of Duluth, Ga., pleaded guilty today in federal district court to one count of filing a false document with the U.S. Department of Labor (DOL) in a fraudulent effort to assist a client in obtaining legal immigration status in the United States following a U.S. Immigration and Customs Enforcement's (ICE) Document and Benefit Fraud Task Force investigation.
According to the charges and other information presented in court, Sai Hyun Lee, a licensed attorney in Georgia, charged an alien seeking lawful status in the United States $25,000 to substitute the client on an approved labor certificate that had been issued to an employer but for a different foreign worker.
Lee then assisted her client in using the labor certificate to apply for lawful resident status in the United States based upon employment, with knowledge that the client did not work for the employer and did not intend to work for the employer to which the labor certificate was issued, as is required by federal law.
Based upon the application which fraudulently represented that Lee's client was working in compliance with the approved labor certificate, the client obtained legal status as a lawful resident alien. Lee's client never worked for the employer and the employer was not aware that Lee used the labor certificate to assist her client in obtaining legal status.
Further investigation revealed that Lee assisted at least 16 other aliens in the same way. In some instances, aliens who hired Lee to help them obtain legal status did not know they were supposed to be working for a particular employer when they became legal resident aliens. In many instances, the employers did not know that Lee used labor certificates issued to them to assist her clients in obtaining lawful status through fraud.
"Immigration fraud poses a severe threat to national security and public safety because it creates a vulnerability that may enable terrorists, criminals, and illegal aliens to gain entry to and remain in the United States," said Kenneth Smith, special agent in charge of ICE's Office of Investigations in Atlanta. "ICE will continue using its Document and Benefit Fraud Task Forces to target unscrupulous attorneys who knowingly circumvent our immigration laws and procedures for financial reasons."
Daniel R. Petrole, acting inspector general, Department of Labor, stated: "Today's guilty plea is the result of a successful collaboration between the Office of the U. S. Attorney, ICE and the Department of Labor, Office of Inspector General. This investigation uncovered an immigration lawyer who sought to personally profit by defrauding the foreign labor certification process. My office is committed to working with the Document and Benefit Fraud Task Force to bring to justice individuals who perpetrate these crimes."
U. S. employers who can demonstrate a particular need for a foreign worker may apply to the Department of Labor for a labor certification for the foreign worker. Once the employer obtains a labor certification, the employer may apply for an immigrant visa and adjustment of status for the foreign worker. After the approval of the visa application and change of status, the foreign worker is afforded the benefit of lawful permanent residence in the United States and is expected to begin working for the employer who petitioned to bring him to the United States.
Lee faces a maximum sentence of up to 10 years in prison and a fine of up to $250,000. She also agreed to forfeit to the United States $100,000 which represents the fees that she charged the 17 aliens to assist them in submitting fraudulent applications for legal status.
Sentencing is scheduled for Feb. 18, 2010, before U. S. District Judge Thomas W. Thrash, Jr.
Assistant U. S. Attorneys William L. McKinnon, Jr., Susan Coppedge and Mary Kruger are prosecuting the case.
Georgia attorney pleads guilty to filing fraudulent immigration documents
Lawyer helped clients obtain legal immigration status through fraud
ATLANTA - A 63-year-old of Duluth, Ga., pleaded guilty today in federal district court to one count of filing a false document with the U.S. Department of Labor (DOL) in a fraudulent effort to assist a client in obtaining legal immigration status in the United States following a U.S. Immigration and Customs Enforcement's (ICE) Document and Benefit Fraud Task Force investigation.
According to the charges and other information presented in court, Sai Hyun Lee, a licensed attorney in Georgia, charged an alien seeking lawful status in the United States $25,000 to substitute the client on an approved labor certificate that had been issued to an employer but for a different foreign worker.
Lee then assisted her client in using the labor certificate to apply for lawful resident status in the United States based upon employment, with knowledge that the client did not work for the employer and did not intend to work for the employer to which the labor certificate was issued, as is required by federal law.
Based upon the application which fraudulently represented that Lee's client was working in compliance with the approved labor certificate, the client obtained legal status as a lawful resident alien. Lee's client never worked for the employer and the employer was not aware that Lee used the labor certificate to assist her client in obtaining legal status.
Further investigation revealed that Lee assisted at least 16 other aliens in the same way. In some instances, aliens who hired Lee to help them obtain legal status did not know they were supposed to be working for a particular employer when they became legal resident aliens. In many instances, the employers did not know that Lee used labor certificates issued to them to assist her clients in obtaining lawful status through fraud.
"Immigration fraud poses a severe threat to national security and public safety because it creates a vulnerability that may enable terrorists, criminals, and illegal aliens to gain entry to and remain in the United States," said Kenneth Smith, special agent in charge of ICE's Office of Investigations in Atlanta. "ICE will continue using its Document and Benefit Fraud Task Forces to target unscrupulous attorneys who knowingly circumvent our immigration laws and procedures for financial reasons."
Daniel R. Petrole, acting inspector general, Department of Labor, stated: "Today's guilty plea is the result of a successful collaboration between the Office of the U. S. Attorney, ICE and the Department of Labor, Office of Inspector General. This investigation uncovered an immigration lawyer who sought to personally profit by defrauding the foreign labor certification process. My office is committed to working with the Document and Benefit Fraud Task Force to bring to justice individuals who perpetrate these crimes."
U. S. employers who can demonstrate a particular need for a foreign worker may apply to the Department of Labor for a labor certification for the foreign worker. Once the employer obtains a labor certification, the employer may apply for an immigrant visa and adjustment of status for the foreign worker. After the approval of the visa application and change of status, the foreign worker is afforded the benefit of lawful permanent residence in the United States and is expected to begin working for the employer who petitioned to bring him to the United States.
Lee faces a maximum sentence of up to 10 years in prison and a fine of up to $250,000. She also agreed to forfeit to the United States $100,000 which represents the fees that she charged the 17 aliens to assist them in submitting fraudulent applications for legal status.
Sentencing is scheduled for Feb. 18, 2010, before U. S. District Judge Thomas W. Thrash, Jr.
Assistant U. S. Attorneys William L. McKinnon, Jr., Susan Coppedge and Mary Kruger are prosecuting the case.
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