By Atty. Emmanuel S. Tipon
President Trump was busy officiating a naturalization ceremony for new Americans and welcoming them to our great country during the Republican Convention on August 25, 2020.
Unfortunately, the President’s subalterns at the U.S. Citizenship and Immigration Services are also busy doing the opposite by denying naturalization applications for questionable reasons or asking applicants to withdraw naturalization applications or else the applications would be denied. These subalterns were seemingly on a rampage – destroying the hopes and dreams of scores of immigrants who want to be citizens of our nation. I had not seen the word “rampage” since I bought the book “Rampage” by James M. Scott a few days ago. The book describes the “rampage” by Japanese forces in the Battle of Manila in February 1945.
Such naturalization applicant might have failed to disclose in the application a previous “arrest” for an alleged crime that happened many years ago for which he was not charged or did not state in his application for an immigrant visa that the applicant had a child.
Take the case of an applicant who did not state that he had a child in his immigrant visa application at the U.S. Consulate. There are quite a number of such applicants with varying reasons for not disclosing, such as that the child was illegitimate, the illegitimate child’s mother did not want the father to include the child in his visa application lest he take the child with him to the U.S.A. and would no longer go back to marry her, or that the applicant simply forgot that he had a child. In the good old days according to anecdotal evidence the previous INS would not deny naturalization applications of aliens who failed to disclose in their immigrant visa application that they had a child.
Nowadays, USCIS would deny the application on the ground that the applicant has not demonstrated that he was lawfully admitted for permanent residence because he committed misrepresentation and that the applicant has not established that he was a person of good moral character.
Section 212(a)(6)(c)(i) of Immigration and Nationality Act provides that “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.”
Bingo. The USCIS will tell the alien that by not disclosing that you had a child when you sought to procure a visa you were inadmissible to the United States. In fact, you are deportable.
Section 237(a)(1)(A) of the Act provides: “Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by existing law at such time is deportable.”
However, the officer might tell you that if you will withdraw your naturalization application, we might not deport you.
Some aliens, trembling in fear, will plead “please do not deport me, I will withdraw my application.”
Others will fight arguing that the nondisclosure of the child was not willfully made and there was no intent to deceive. Furthermore, having a child or no child is not material because the petitioner is a parent. If the visa applicant disclosed that he had a child would the outcome be different? In other words would the visa have been denied? Of course not, since having a child or no child is not a requirement for an immigrant visa petition by a parent. USCIS will not listen to such arguments, even though the alien cites cases to support his arguments.
Another naturalization applicant was denied naturalization on the ground that he did not disclose that he had been arrested for a sexual offense. The alien had submitted his arrest record issued by the court which listed all his arrests for minor offenses but did not list that particular sex offense.
The immigration officer confronted the applicant as to why he did not disclose the arrest for the sexual offense, the officer waving a document showing the arrest. The applicant’s attorney asked to see the document but the officer refused. The lawyer argued that in court when a lawyer wishes to confront a witness with documentary records, the lawyer must show the witness the document. The officer refused saying you can file a Freedom of Information Act request.
The lawyer said that the government must not have regarded this so-called “arrest” as an arrest otherwise it would have listed it in the arrest record. The officer just ignored the argument.
The applicant said that he forgot about the incident since it was a long time ago. He said that he was not even sure whether he was “arrested” since the police just asked him to go with them and that he did not remember whether he was handcuffed. The applicant said that the police did not charge him with the alleged sex crime. The officer said that he knew that but kept asking why the applicant did not disclose the “arrest”. The officer remarked that people of good moral character do not get arrested.
The officer asked if the applicant wanted to withdraw his naturalization application. The applicant refused and USCIS denied it. The alien did not want to pursue the application any further.
There are scores of other naturalization denials by USCIS which could be challenged in court.
Aliens can fight naturalization denials by filing a case with the United States District Court which will make its own findings of fact and conclusions of law de novo. INA Section 310(c). Would the alien spend around $10,000 to go to court? Is being naturalized worth that much? Some think it is and will spend even more than that and go to the Supreme Court.
COMMENT: “Lies told out of ‘embarrassment, fear, or a desire for privacy’ (rather than ‘for the purpose of obtaining [immigration] benefits”) are not generally disqualifying under the statutory requirement of “good moral character.” Kungys v. United States, 485 U.S. 759, 780; 8 U.S.C. 1101(f)(6).” Cited in Maslenjak v. United States, No. 16- 309, June 22, 2017, 582 U.S. ___ (2017). Tell this to the USCIS. Good luck.
RECOMMENDATION: Consult with a very competent and reputable immigration lawyer before applying for naturalization. Many people tend to forget unpleasant incidents in their lives or do not want to disclose it. Try to remember all negative matters about yourself that may affect your good moral character and tell the lawyer about those matters. Let the lawyer evaluate whether it will have a negative effect on your naturalization application.
ATTY. TIPON has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He is co-author of the best-seller “Winning by Knowing Your Election Laws” published by Rex Publishing. He writes columns for Filipino-American newspapers and co-hosts “The Tipon Report,” Honolulu’s most witty and useful radio show. He practices law in Honolulu, Hawaii, focusing on immigration and other federal laws. Tel. 808-225-2645. E-mail: firstname.lastname@example.org
By Atty. Emmanuel S. Tipon