Immigration Law: Avoid Pitfalls

In law school, prospective attorneys are taught how to present the best argument on behalf of clients and that each issue can be viewed in different ways. In fact, our standard court system is designed with that concept in mind. Opposing parties can take their case to the courtroom, present laws and arguments to the presiding judge, and await a decision. In the end, we hope that justice will be achieved when adversaries have the opportunity to present their case in the most favorable light.

However, in the field of immigration law, the opportunity to present a client’s case is limited in several ways. Adjudicators, consular officers, and immigration judges make decisions within a complex framework that grants few rights to foreign nationals before them. In many cases, especially in consulates, the lawyer cannot be present during the process to help clients present their case. In further contrast to the standard court system, there are very limited appeal procedures in immigration law. To make matters worse, at first glance, the immigration system may seem simple: file a few forms, take a couple of passport photos, and voila! In fact, immigration law is highly technical and complex, and one small misstep along the way can lead to big problems. At best, a denial will result in the loss of the high filing fee paid to the government. In more serious situations, an improper filing can lead to deportation. Wrong answers or “little white lies” can cause admissibility problems in the future. The cheat potential is limitless.

Some customers have started the process on their own, but wisely recognize the need to get help when a problem arises. In one situation, a client sought our legal advice after applying for naturalization (citizenship) on his behalf and ran into problems. A few years earlier, she had been arrested in North Carolina and charged with a misdemeanor. In exchange for admitting to the crime, she was allowed to participate in a “first offender” deferred prosecution program offered by the state. Upon successful completion of the program, she had the charge dismissed.

Believing there was no conviction, the client completed the naturalization application stating that she had never been arrested; he had never been accused of committing any crime or offense; and never having been convicted of a crime or misdemeanor. Unfortunately, under immigration law, her earlier “admission” was construed as a “conviction,” leading to an apparent breach of the “good moral character” requirement for citizenship. Fortunately for this client, we were able to demonstrate to the adjudicator a limited exception within the immigration code for this type of “conviction.”

The biggest concern was that their answers could be interpreted as lies. “False testimony” can also prevent a finding of “good moral character” and derail hopes of naturalization. In the end, we were able to present a convincing and thoughtful disclosure of your circumstances to the adjudicator before any damage was done. She is now a US citizen.

Another recent matter involved a client seeking to bring his fiancée to the United States from the Philippines. A logical prerequisite for a fiancée visa is that the individuals must be legally free to marry each other. In this case, the bride was previously married, but her husband had disappeared some years earlier. The Philippine government does not allow divorce, and instead a judicial declaration of absence or presumed death “for all purposes” was issued.

Unfamiliar with this document and its legal effect, the US government issued a request for evidence and the couple sought our help in responding to that request. In coordination with our clients’ legal advisors in the Philippines, we were able to provide documents and legal authority to prove that they were, in fact, free to marry each other. The petition was approved and sent to the consulate.

While not every case has a happy ending in the world of immigration law, the cases above provide just a few examples of how solutions can be found, even when a client has started down the immigration path before seeking legal counsel. Our job is to apply creativity and critical thinking to our clients’ cases, helping them avoid falling into traps along the way.

Copyright 2010, Smith Debnam Narron Drake Saintsing & Myers, LLP, Raleigh, North Carolina. All rights reserved.

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