Immigration Forum / USA Marriage Base / July 2005

Good morning to all,

I applied and was selected to participate in an internship program with
a local firm prior to my enrollment in law school. Our work deals mostly
with criminal law and its immigration consequences. I've been part of
this program twice already and I've fallen in love with the *categorical
analysis* in findings related to CIMT's. Most cases I've seen so far are
Lopez-Meza style.

Some individuals I know who work in other areas often refer to this one
as obscure and confusing when in reality it is not. Well defined
procedures known as the Categorical Analysis and the Modified
Categorical Analysis (when dealing with divisible statutes) regulate and
control the process. The BIA and Circuit Courts have a well established
list of precedents, state law and federal law also provide the very
foundation upon which the Categorical Analysis is conducted. As you can
see, I'm still naive when it comes to my love for the law.

I've been reading some of the material posted here and have become
confused with a particular area of immigration law. Findings of
misrepresentation, preconceived intent and the 30/60 rule. I went
through several opinions posted by your *resident* attorneys and have a
question about it. The BIA has established  that preconceived intent
alone is not ground for denial of adjustment of status for immediate
relatives of US citizens. However, this precedent does not provide a
"safe heaven" when there's also a finding of misrepresentation. This is
where the situation gets sticky for me. In the case of
misrepresentations to obtain a visa, it seems that there's an abundance
of evidence to support a finding; the evidence could include false -or
questionable- documents and sworn statements.

My question relates to misrepresentation at a port of entry (-this
provision applies to all stages of the process...) I understand the
misrepresentation must occur with knowledge and consent of the alien.
This may be where I'm wrong. When dealing with criminal convictions, it
is the statute of the law and not the conduct of the individual that
must be analyzed. (This changes when we have divisible statutes and then
the ROC can be consulted). When dealing with a misrepresentation at a
port of entry, it is my thought is that preconceived intent will be the
primordial factor to support the finding. However, if preconceived
intent is not an obstacle for denial of AOS for immediate relatives so
I'm troubled with the fact that it can be used to support a finding of
misrepresentation that otherwise couldn't be documented.

Example: Juan has a girlfriend in the US who is a US Citizen. Juan
applies all legal means to obtain a valid visa and uses it several
times to visit with his soul mate Jane. Juan comes to visit and gets
questioned at the POE about his intents. He *willingly* makes a
statement that he is only coming to visit his girl and has no plans of
getting married. He obtains entry. However, his girlfriend welcomes him
and tells him she's pregnant and Juan decides to change his plans and
gets married to Jane to honor his commitment. He then applies for AOS
and Jane's application is denied on grounds of "misrepresentation at
the POE". Juan told the truth when he was inspected, there's no
possible way to prove that he didn't. However, intent can make USCIS
suspicious because Juan got married 15 days after entry (*see 30/60
rule). In this case, the 30/60 rule will alert USCIS about intent to
support a finding of misrepresentation. Clearly, this finding will be
supported by nothing more than allegations as opposed to convincing
evidence. When dealing with criminal convictions and cases where moral
turpitude can not be clearly attached to the violation of a statute,
all doubts favor the alien; however, in Juan's case, it's the opposite
that applies. The burden of proof resides with the alien. Obviously,
the alien can offer evidence of his original intent but cannot prove he
didn't indeed lie at the POE. The evidence will be related to intent
only, but the BIA has indicated intent is not a factor for AOS. Then
again, we're at square one.

To me, this is a black whole, there's no possible way out. It's
bothersome to me and more than likely I am not understanding this
particular area correctly. Any comments?

Thank you very much for your time and for contributing to my education.