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Lying to the government is never a good thing, but certain
complications result from false document usage that do not occur
when one verbally misrepresents.
The US Immigration and Nationality Act (INA)
section 274C makes it unlawful to satisfy an immigration requirement
or obtain an immigration benefit by using someone else’s document,
knowingly making, using or filing a document with false information,
or filing an application with knowledge that it is false or does not
relate to the person on whose behalf it is being submitted.
It also penalizes showing a false passport or
visa in order to board transportation bound for the United States
and failing to present that document to an immigration officer upon
arrival at the US port of entry (i.e. using a false passport and
then destroying it while en route to the US).
The law applies to applicants who use false
documents, as well as those who knowingly assist them in
preparation. It also applies to those who should have known that the
document was false, but acted in reckless disregard of that
knowledge.
“Document” includes all State Department,
DHS, and Immigration Court applications for immigrant and
non-immigrant visas, asylum, discretionary relief or work
authorization. The attestation to false information on an I-9 does
not constitute falsely making a document under the statute, but the
presentation of false documents (e.g. a green card or social
security card) to an employer does.
Using a false passport is a violation of 274C,
except if the person did so to escape from a country in which the
alien has a well-founded fear of persecution. In such case, the
alien must tell the DHS Officer upon arriving in the US that he
wishes to apply for asylum.
Persons found to have violated section 274C of
the INA are subject to civil fines. They may also be permanently
barred from the United States.
The DHS begins a 274C proceeding by issuing a
Notice of Intent to Fine (NIF) which contains, among other
information, the charges and the amount of the fine sought. The NIF
also advises the alien of the right to counsel, the privilege
against self-incrimination, the right to a hearing, if requested
within 60 days, and the consequences of not requesting a hearing.
The NIF must be either personally served or
delivered by certified or registered mail. If the alien requests a
hearing, there are various procedures which can be used to obtain
information about the evidence that the government intends to use.
Appeals against the decision can be taken in the US Circuit Court.
According to a USCIS policy memo, DHS should not
institute 274C proceedings, while an application for adjustment of
status and an application for waiver of misrepresentation are
pending. However, the Board of Immigration Appeals has held that
fraud waivers are unavailable to waive the ground of inadmissibility
resulting from a 274C final order. The result of that holding is
that an alien who is the subject of a final order for violating 274C
is inadmissible to the US.
A limited waiver exists for two groups of
people. The first is for green-card holders who temporarily left the
US voluntarily, are not under deportation orders and who are
otherwise admissible. The second is for aliens seeking admission or
adjustment of status under certain family-based petitions.
In both cases, the alien must not have a
previous fine under 274C and the fraud must have been committed
“solely to assist, aid or support the alien’s spouse or child
(and not another individual).” That relationship must have existed
at the time of the use of the document.
Aliens with final 274C orders still qualify for
withholding of removal or deferral of removal under the Convention
Against Torture. They may also qualify for asylum. They may also
qualify for cancellation of removal for lawful permanent residents
or cancellation of removal for non-permanent residents.
The wisest course of action is to not to use
fraudulent documents. However, that advice may come too late for
many people. Receipt of an NIF is a very serious matter. There are
time deadlines for responding to the NIF. Failure to respond within
the proper time frame could result in a final order which could then
result in the alien being placed in removal proceedings and deported
from the United States.
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Author’s Note: The analysis and
suggestions offered in this column do not create a lawyer-client
relationship and are not a substitute for the individual legal
research and personalized representation that is essential to every
case.
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