Some people, desperate for a better future in America, rely on the help of unscrupulous immigration consultants, who promise to “solve” the person’s immigration problem, secure them a work authorization, get them a green card, or the like.
These people pay their hard earned money, but may not even know or understand what the consultant is doing, or how the consultant proposes to solve their problem. In fact, rather than solving the problem, the consultant makes the situation worse. For example, the consultant may file an application for political asylum on behalf of the person, based on that person’s supposed belief that he or she will be persecuted in their home country, when in fact, he or she can’t wait to go home to visit family. Others might file for work authorization by claiming that the person had been in the US before January 1982, or had worked on a farm during the mid-80s. Still other consultants may have filed papers, in which it was made to appear that the person had married a US citizen, or filed for a working visa, based on a fake job or employer.
When the person later applies for legitimate benefits, these fraudulent filings come up during the interview, and the person is denied, because of the consultant’s fraud. This is because the USCIS has taken the position that a person is responsible for his or her agent’s fraud.
However, recently, there was a case in which the 11th Circuit Court of Appeals held that the alien was not “guilty” of fraud or willful misrepresentation based on a bogus filing by an immigration consultant. In that case, an immigration consultant was recommended to the alien, as someone who could “solve his status problem” by filing a religious worker petition. Not knowing or understanding what was going on, the alien hired the consultant, who then filed a petition that included several fraudulent documents, and indicated that the alien was an “ordained minister,” which he was not. The alien was later placed in removal proceedings, and claimed that he had never seen the documents the consultant filed, and that his signature on the documents was forged. However, the immigration judge decided that the alien must be “deemed to have full knowledge of the fraudulent documentation” submitted by the consultant, and thus was inadmissible for fraud and willful misrepresentation.
The 11th Circuit concluded that to be liable for fraud, there must be a false representation made with knowledge of its falsity and with intent to deceive. Similarly, “willful misrepresentation” also requires some sort of “willful” act of misrepresentation. The court said that because the alien did not personally make a willful misrepresentation, he was not guilty of fraud or misrepresentation. In other words, there must be “substantial evidence in the record” that a person knew of, or authorized, the submission of fraudulent documents or untruthful information, in order for that person to be liable for fraud or misrepresentation.
If you ever went to a consultant, who promised to “solve” your problems, but ended up filing things for you that contained untrue statements or fraudulent documentation, which was done without your knowledge or consent, then this case could be very helpful to you in “clearing your name” of any charge of fraud and misrepresentation. However, you should seek the advice of a reputable attorney, who can evaluate the totality of circumstances, to see if your situation is similar to this case, and help you prove that you had no knowledge or understanding of what was being done or filed.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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