Thursday, January 26, 2017

Fraud / Misrepresentation and Alien Smuggling Cases Section 212(a)(6)(c)(i) and 212(a)(6)(E)


Material, willful misrepresentation of facts or misrepresentation of identity or fraud or alien smuggling are most common grounds of U.S. visa refusal/ineligibility given by Consular Officers of U.S. Embassy in Dhaka, Bangladesh against Bangladeshi visa applicants and one of the most complicated areas of U.S. Immigration Law.

Material Misrepresentation- 212(a)(6)(c)(i)

A misrepresentation is a statement not in accord with the truth—made by either the visa applicant or his agent on his behalf. It must be a statement or a submitted document; silence or failure to volunteer information is not considered a misrepresentation. For Example- a Travel Agent or visa consultant erroneously completed a visa application does not save the visa applicant. Similarly, an applicant who does not know English is not saved because he misunderstood a question; the inaccurate information is still considered a misrepresentation.

Refusal of U.S. visa application by U.S. Embassy in Dhaka, Bangladesh on the issue for Material Misrepresentation or Fraud which has been deals under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA).

The visa applicant has been refused, or found ineligible, for a visa under section 212(a)(6)(C)(i) because the visa applicant attempted to receive a visa or enter the United States by willfully misrepresenting a material fact or committing fraud. This is a permanent ineligibility.

Misrepresentation must be willful, which means that it must have been done knowingly and intentionally, and not made accidentally, inadvertently, or in an honest belief that the facts are otherwise.

Let’s say a visa applicant applied for visa using a passport under a different name or date of birth or showing as unmarried instead of married. Now, in this case whether the facts are material or immaterial, by itself are question of facts, law and material evidences.

Materiality is determined in the context of the individual case as to whether the misrepresentation was of direct and objective significance to the proper resolution of the alien's application for a visa. A timely retraction will serve to purge a misrepresentation.

Alien Smuggling- 212(a)(6)(E)

The visa applicant has been refused, or found ineligible, for a visa under section 212(a)(6)(E), if the visa applicant at any time knowingly has encouraged, induced, assisted abetted, or aided any other alien or visa applicant including his close family member to enter or to try to enter the United States in violation of Immigration law. With regard to a visa application, the visa applicant who knowingly makes false oral or written statements on behalf of other visa applicant, including a family member, is ineligible under this section, provided the false statement was material (i.e., the visa applicant was or would have been found eligible for the visa based on the alien’s false statement but, on the true facts the visa applicant was not eligible for the visa) ;

One of the critical elements and prerequisites to making such a finding is that the person must knowingly intend to help another person obtain a visa who is not eligible. Therefore, an honest misunderstanding of a person’s status is an absolute defense to such an accusation. For example, a parent who does not know his son got married cannot be charged with alien smuggling because the parent did not know of his true marital status. As can be seen, these decisions can often be disputed and challenged. Consular Officers of U.S. Embassy in Dhaka are not mind readers; discerning a person’s intent and knowledge can be difficult.

We are suggesting and advising our clients and all the readers of this post, so far the rejection of visa application for misrepresentation or fraud or alien smuggling is a lifetime bar. But each case facts are individual in nature. Therefore, the visa refusal under section 212(a)(6)(c)(i) for Material Misrepresentation of Facts or Misrepresentation of Identity and 212(a)(6)(E) for alien Smuggling both issues are question of Facts and Law.

Consular Officers of U.S. Embassy in Dhaka, Bangladesh have a difficult job. They have very little time to interview applicants. Because of their limited time and resources, it is not surprising that consular officers frequently make factual mistakes, misunderstand applicants, make legal errors, and ignore relevant facts and documentation in reviewing legitimate applications. Consular officers, in general, are not Lawyers, and have limited training in US immigration Laws. Individuals who were permanently ineligible to enter into the United States, barred for 3 and 10 years, and continuously denied visas have been able to receive visas to visit, work, and immigrate to the United State of America.

Decision of Consular Officers of U.S. Embassy in Dhaka can and should be challenged, if they do not have a factual or legal basis. The Visa applicants can attempt to challenge to overcome erroneous or unfounded findings or refusals under section 212(a)(6)(c)(1) for Material Misrepresentation of Facts or Misrepresentation of Identity or Fraud and under section 212(a)(6)(E) for Alien Smuggling or have waivers approved on the basis that he or she did not willfully make the misrepresentation of facts or identity or fraud or alien smuggling.

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