Illegal entry: 6 convicted, 11 million running around

by Atty. Emmanuel Samonte Tipon 

What would you say if you read that 6 Filipino American siblings were convicted of illegal entry into the United States, while no action has been taken against an estimated 11 million mostly non-Filipinos who illegally entered the United States? The 11 million might even be given amnesty. Will the conviction of the 6 FilAms be set aside if there is an amnesty? How about those deported for illegal entry – will their deportation be set aside and be permitted to return to avail of amnesty?

It is a criminal offense to improperly enter the United States. 8 U.S.C. § 1325 provides:
(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts.

Any alien who:
(1)enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or
(2) eludes examination or inspection by immigration officers, or
(3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact,
shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
The Filipinos were charged under the third paragraph for having entered the United States by a willfully false or misleading representation and the willful concealment of a material fact, to wit: the defendants did not disclose on their Application for Immigrant Visa and Alien Registration that their father was deceased.

Before they were criminally charged, the Filipinos were placed in removal proceedings for having procured a visa by fraud or willfully misrepresenting a material fact, namely, that their father was already dead when they filed their visa application. Thus they were deportable under § 237(a)(1)(A) of the Immigration and Nationality Act. They conceded deportability but asked for a waiver for fraud under § 237(a)(1)(H). We successfully represented 4 who obtained a waiver.

They breathed a sigh of relief until criminal charges were filed against them. This was the first time that we heard of immigrants who were granted a fraud waiver and later criminally charged. Why were the thousands of other immigrants who were granted a fraud waiver before the Filipinos not criminally prosecuted? Why pick on the Filipinos? Selective prosecution?

Both the Immigration Judge who granted the fraud waiver and the U.S. Attorney who charged the Filipinos criminally are arms of the Attorney General. It is like one arm giving you a pardon and the other arm taking it away. Does not the grant of a waiver pardon the offense? A trial would have provided the answer. However, we will never find out because the Filipinos entered into an agreement by pleading guilty to the charge in exchange for a small fine. The Public Defender represented them.

Will the 6 Filipinos be placed in deportation proceedings again – this time for having been convicted of a violation of the immigration laws? That’s a “Sword of Damocles.” The plea agreement did not guarantee non-prosecution. It stated: “Pleading guilty to criminal offenses may have adverse consequences with respect to the Defendant’s immigration status and/or eligibility to remain in the United States if he is not a citizen of the United States. . . crimes involving controlled substances, firearms, aggravated felonies, or moral turpitude are deportable offenses; and the Defendant’s plea to any such crime may subject him to automatic deportation and removal from the United States. See 8 U.S.C. § 1227(a)(2) et seq.”


(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; 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 funny, interesting, and useful 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. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)