Original sin - imputing parents’ immigration violation to child

by Atty. Emmanuel Samonte Tipon 

“Wherefore, as by one man sin entered into the world, and death by sin; and so death passed upon all men, for that all have sinned.” – Romans 5:12

“The soul that sinneth, it shall die. The son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son: the righteousness of the righteous shall be upon him, and the wickedness of the wicked shall be upon him.” – Ezekeil 18:20

Conflicting Biblical verses? You bet. So how do the courts apply these verses, if they know about them at all, in their judicial decisions on immigration issues? They are also in conflict.

ORIGINAL SIN IMPUTED TO CHILD

Rodrigo, a Filipino, was admitted to the U.S. as the unmarried son of a U.S. lawful permanent resident father, although he was married to Maria with whom he had two children. Another child was born after Rodrigo’s entry to the U.S.

Eight years later, Maria and the children who were 11, 9, and 6 years old entered the U.S. as the wife and children of a lawful permanent resident. Maria filled out their visa applications. She admitted later that she knew that her husband had lied about his status and that she and their children were not eligible for admission to the U.S.

Removal proceedings were commenced against the entire family on the grounds that they were excludable at the time of entry; for having entered the U.S. by fraud or willfully misrepresenting a material fact; and for having entered the U.S. with no valid immigration documents. The husband died during the proceedings. Maria and the children conceded deportability for having entered without valid documents. The INS did not pursue the fraud charges against the children.

Maria applied for fraud waiver under the former INA § 241(f) [now 237(a)(1)(H)] as the mother of children lawfully admitted for permanent residence. The children applied for innocent immigrant waiver under INA § 212(k).

The Court imputed the parent’s knowledge or state of mind to the child in considering whether the child had knowledge of her ineligibility for admission to the U.S. and ordered them removed. The court reasoned that if the parent’s knowledge could not be imputed to the child, it might encourage parents to file fraudulent applications on their behalf, and if the children were eligible for a waiver, then the offending parent could be derivatively eligible for discretionary relief. Senica v. INS, 16F.3d 1013 (9th Cir. 1994)

ORIGINAL SIN NOT IMPUTED TO CHILD

Singh, an Indian, entered the U.S. by impersonating a deceased cousin and using his immigrant visa. He divorced his wife Parveen. They remarried in India. Parveen and their daughter Amandeep entered the U.S. as the spouse and daughter of an LPR. The government initiated removal proceedings first against the husband and separately against mother and daughter on the ground that they entered the U.S. by fraud or misrepresentation. The IJ ordered the mother and daughter removed. The Court of Appeals reversed, holding that “This scenario, in which the person innocent of the fraudulent conduct suffers consequences more severe than those who actually committed the fraud, strikes us as not only ‘illogical’ but downright unfair.” The court pointed out that “fraud” requires knowledge of falsity and intent to deceive and that Congress did not indicate in the waiver statutes that it can be imputed to a third party. The court rejected as exaggerated the Ninth Circuit court’s concern in Senica that parents would manipulate the process by filing fraudulent applications on behalf of their children, and if the children were eligible for a waiver, then the offending parent could be derivatively eligible for discretionary relief. Such parents, the court explained, would not be strong candidates for a favorable exercise of discretion by the IJ. Singh v. Gonzales, 451 F.3d 400 (6th Cir. 2006).


(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 specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com, and www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most witty, interesting, and informative radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at  www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)