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The Golden Door

News and views on immigration law

“Have you ever …. [in America]?”

September 4th, 2012 by Djung Tran

Lately, I have been encountering a way of thinking that can have dangerous results in immigration applications.  I call it the “If it didn’t happen in America then it didn’t happen” syndrome.  The thinking here is that when an applicant is asked specific questions on immigration applications such as “Have you ever been married?” or “Do you have any children?” or “Have you ever committed a crime?” the applicant responds “No” – even when there has been a marriage, or children, or criminal history – when these events happened outside of the United States.  But, not surprisingly, the answer is only “No” when the applicant believes that to say “Yes” would be detrimental to the application.  When the event that occurred outside the United States would be clearly beneficial, such as when the foreign national applicant married a U.S. citizen abroad, then the answer is “Yes.”

Ironically, sometimes a “Yes” answer would have no adverse consequence but a false “No” may.  For instance, a naturalization applicant told me that she had been married and divorced in her home country prior to emigrating to the United States as the adult, unmarried child of a refugee.  However, she had never disclosed the marriage, answering the question “Have you ever been married?” with a “No,” and the question “What is your marital status” as “Single, never married.”  The fact of her prior, terminated marriage is not a negative factor in her naturalization, as it did not affect her eligibility to be categorized as an adult, unmarried child of a refugee, but the fact that she did not truthfully answer the question, if known, would factor into an assessment of whether she possesses the good moral character needed to naturalize.

The justification for this syndrome is usually:  “But since it didn’t happen in America I thought it didn’t count.”  My response to this is that USCIS wants to know about your conduct before you came to the United States, not just after you arrived.  If we take this thinking to its logical, ludicrous conclusion then the very fact of the your birth abroad should not be taken into account, or your education and work experiences attained abroad should not be credited to you, and you should not now be eligible for an immigration benefit.

Sometimes, the applicant’s response to my saying that we need to disclose events that happened abroad in response to direct questions is:  “But no one will ever know.”  In many cases, this may be true.  It is difficult to prove the existence of a marriage or birth of children that occurred in another country when USCIS has no inkling that they exist, and even criminal convictions may not show up on national criminal background checks.  However, failure to disclose such facts is lying or deliberate misrepresentation, and I am not going to let my client lie on an application.  If my refusal to lie on behalf of my client is a problem then the applicant is welcome to seek other counsel.

I also point out, for those who seem to be motivated by self-interest more than the desire to act with integrity, that if for some reason the truth comes out later then this becomes a potential issue of immigration fraud and the applicant may be stripped of all immigration benefits (a visa, lawful permanent resident status, citizenship) that were issued based in part on that lie.  Sometimes that argument is persuasive to the applicant.  Sometimes not.

Occasionally, I think clients regret telling me the truth, thinking it would have been so much easier to lie to me as well as to immigration authorities.  Be that as it may, once I know something I am not going to pretend not to in order to continue a case.  And, if you get in the habit of lying to your attorney you will likely get incorrect advice in response, based on your incorrect information.

As you can tell, I don’t have much sympathy for this type of selective amnesia.  You are who you are, and you did what you did, and I am not going to help you lie to avoid the consequences of your conduct.  I will help you address your actions, and put them in the best light possible, and apply for any forgiveness that is available, but I will not help you deceive your way out of the consequences of your actions.

So, when you are asked a “Have you ever…” question, please don’t insert your own spin on it.  Just answer the question as it stands.

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