Wedding pictures in bag of Filipina claiming “single” lead to exclusion proceedings

by Atty. Emmanuel Samonte Tipon

Geronima, a Filipina, attempted to enter the U.S. as the unmarried daughter of a lawful permanent resident. At her port of entry in San Francisco, an INS agent found pictures suggesting that she was married. INS conducted an investigation in the Philippines and discovered a marriage application, a marriage license, and a marriage contract with her name and that of Juan.

INS commenced exclusion proceedings, alleging that she violated immigration laws by falsely obtaining a visa by concealing her marriage. She claimed the documents constituted only a proposal of marriage, not an officially certified marriage. The Immigration Judge did not find her credible and ruled that she made a material misrepresentation by concealing her marriage. He ordered her excludable. INS detained her in jail for 22 months. She appealed to the BIA claiming for the first time that her marriage was void because her marriage ceremony took place before her marriage license was issued. Under Philippine law, this would make the marriage void. BIA refused to consider this evidence and affirmed the exclusion order.

Geronima got a lawyer who filed a petition for habeas corpus in a U.S. district court which affirmed the BIA but did so on different grounds. She filed a petition for review with a U.S. Court of Appeals which stayed her exclusion. The Court reversed the district court and remanded the case to the BIA for a new evidentiary hearing because the hearing before the IJ was deficient since she did not have an attorney and translator and because the INS submitted an investigator’s report to the IJ without giving Geronima a copy.

A new IJ conducted the hearing which held that she should not be deported. He determined that Geronima honestly believed that she was not married to Juan and therefore did not willfully misrepresent her marital status. He ruled that even if a marriage ceremony took place, the marriage was void because it was performed before the issuance of a marriage license. He rejected the INS evidence consisting of the testimony of the mayor who performed the ceremony who claimed that he performed it after issuing a marriage license. The IJ did not find the mayor’s testimony credible.

INA SECTION 212(k) WAIVER

The IJ granted a Section 212(k) waiver. Under the Immigration and Nationality Act an alien excludable from the U.S. under 1182(a)(5)(A) or 1182(a)7(A)(i) who is in possession of an immigrant visa may, if otherwise admissible, be admitted to the U.S. in the discretion of the Attorney General (or Immigration Judge) if he is satisfied that the exclusion was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure. We have invoked Section 212(k) waiver on a number of occasions and are writing a book on immigration waivers.

The BIA reversed the IJ, saying that he should not have been “so quick to find the applicant credible.” Instead it gave credence to the mayor’s testimony.

She appealed to the Court of Appeals which held that the “mayor’s affidavits bordered upon fraud” and found her credible. The court upheld the IJ’s grant of waiver under Section 212(k) and ordered that she be granted citizenship. The court said:  “Shutting off the opportunity to come to the United States actually is a crushing deprivation to many immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States. . . Exclusion is indeed a harsh penalty. . . No immigrant should have to live over ten years with the uncertainty as to whether she can stay in this country or not.

MORAL OF THE STORY.  Do not carry incriminating pictures or documents in your luggage which, if discovered, would lead to a conclusion that you are not what you claim to be or that you have a different intention than that indicated in your visa.  If you have such incriminating items, send them separately by express courier to a trusted friend or relative in the U.S.

(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.)