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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94775
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Hello, This is a question for someone else, lets call

Resolved Question:

Hello,

This is a question for someone else, let's call her Sara. It is somewhat complicated but boils down to: XXXXX XXXXX you do when your green card is based on a false birthdate?

Sara is a citizen of India. When she was a child, her father died and her mother took her to Kuwait to try to make a better life. At that time, Kuwait would not let immigrants younger than 16 into the country; Sara was 12, so the mom got Sara an Indian passport that gave the wrong date of birth that indicated that Sara was 16. At some point, Sara came to the US using that Indian passport showing the wrong date of birth.

Fast forward years: XXXXX XXXXXves in NYC, marries a US citizen, starts the immigration process, and, based upon the the advice of a lawyer, continues to give ICE the wrong birthday because that is what all of her prior documents say. Sara eventually receives a green card without any problem, but based on this wrong birthdate.

Sara applies for citizenship, but at the final interview, the ICE officer asks for more evidence of her birth (all she had submitted was the Indian passport, and this was deemed inadequate). Sara has her actual birth certificate that says her actual birthdate -- which is a different date of birth than what she has claimed all along, so obviously she does not want to submit that. Her lawyer has two versions of her baptism certificate -- one showing the correct birth year, and the other showing the wrong birth year -- and inexplicably and without Sara's permission, he hands these two conflicting documents to the immigration officer. The IO sees the conflict in dates and takes the documents to a different office "to her supervisor" and comes back saying that it is not sufficient evidence of birth date. The next day, Sara obtains an affidavit of birth from the Indian consulate affirming her birth date (as the wrong date -- the one on her passport), presents it to the immigration officer, who again hands it back saying it's insufficient.

Now Sara has 3 weeks to produce additional evidence of her birth. [BTW - Sara no longer wants to work with that lawyer, as she feels the initial advice he gave (to keep using the wrong birthdate) was bad and it doesn't seem like he even reviewed her citizenship application before submitting it, because if he did, he would have advised her to have more evidence of date and place of birth.] So the questions are:

1. Should Sara continue to pursue citizenship, or should she settle for permanent residence and withdraw her naturalization application to avoid further scrutiny?
2. What are the risks of having removal proceedings based on providing false information of the sort described above, and under those circumstances?
3. Did the IO copy the conflicting baptism certificates and put them in Sara's file or otherwise make a note of this problematic evidence? If so, this could cause major problems....

ANY advice on this tricky problem would be needed. And certainly Sara is likely going to be wanting a new lawyer.

-JS
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. I just ask for two things: 1) Before you sign off, please remember to rate me positively as that is the only way that I am paid and your question does not close after you rate me so I can still answer additional questions without additional charge if you have follow-ups even weeks or months later; and, 2) IF I have bad news for you, please remember I am only the messenger. When you rate me, it is my service to you that you rate, not whether the news is good or bad. I will try my best to give you a solution, but sometimes the law does not have a good one.


1) I think she should continue to pursue the U.S. Citizenship, show anything that she has with her correct birth certificate, produce the evidence that when she was 12, Kuwait was not allowing children under 16 to enter (you will most likely need a lawyer in Kuwait or someone to find the law applicable at that time and produce it for the officer), plus she should submit affidavits from her parents that state that this is what they did to be able to have her enter into Kuwait when she was 12.


2) I think the risk is low simply because the U.S. government is low on money and would normally initiate removal proceedings against persons that have serious crimes. Is it possible that they could see this as a serious immigration violation and initiate removal proceedings anyway? Yes. But withdrawing her N-400 is not going to stop that.


3) Yes, it will be there permanently.


I think the information in response #1 is what she should go by and she should hire a good attorney to represent her. She can look for one at www.ailalawyer.com.




Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance to you. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/ and make sure you type: FOR GUILLERMO on the subject line. Thank you!




Customer: replied 1 year ago.

Thanks, XXXXX XXXXX your thoughtful and helpful answers. I understand you suggest that Sara should continue to pursue naturalization and in the process, come clean about her real date of birth. I do have a couple of follow-ups:


 


1. To be clear, Sara has been using the wrong date of birth (the one on her Indian passport) all along. . . including of course on all of her prior interactions with INS/ICE. In your opinion, if she gives the true reason for the wrong birthdate and admits that she nevertheless used the wrong birthdate all along, what are the chances that IO will be understanding?


 


2. If removal proceedings are started, what are the chances that Sara will be able to successfully defend herself given all the circumstances? (Note: Sara and the US citizen don't yet have children.)


 


3. If Sara is removed, can she ever immigrate again?


 


4. Sara is just really afraid of removal. She thought that if she withdrew her N-400, it would not be adjudicated so it would take her off of ICE's radar and she could live happily ever after as a permanent resident. She thought there would be a difference between an N-400 application that is not adjudicated because it is withdrawn, one that is denied for insufficient evidence, and (worst case) one that is denied based on suspicion of fraud. But this is not the case?


 


5. If the IO finds that Sara's use of the wrong birth date shows lack of good moral character, does that result in just denial of the application, or does it result in removal proceedings?


 


THANK YOU!!


JS

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
1) It depends on the officer and the evidence she provides and the reasons that she gives for not coming clean when she started her U.S. processes. This is why I strongly recommend using an attorney. The original problem wasn't her fault because she was a minor. But that she did not come clean after she turned 18 to the processes that she did in the U.S. could become problematical.

2) If the marriage to the U.S. Citizen is a good one and she has been in the U.S. many years and has many positive equities, she may be able to get the waiver approved to get a new (and clean) Residency status.

3) Yes. She could be granted Voluntary Departure, but even if she isn't, there are other waivers available for her to come back, but I do not believe she will be removed. I think she has a good chance if she can show positive equities and that's IF the case ends up in removal proceedings which may not happen because as I said, they don't really want to waste money like that.

4) You cannot un-ring a bell. The officer has the discrepancy now, so if they wanted to, they could pass on the case to ICE for removal proceedings even if she withdraws the N-400.

5) Yes, unfortunately it would. If they do not place her in removal proceedings, then she can try applying again for U.S. Citizenship in 3 to 5 or more years.



Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.

Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94775
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and other Immigration Law Specialists are ready to help you
Customer: replied 1 year ago.

Thanks very much again, Guillermo, for your helpful and well-considered responses. I appreciate them. Another follow-up:


 


Assuming they decide to continue pursuing naturalization and to come forward with the correct birth date, logistically, how can this be done at this stage of the process? In particular, they already had their interview and it seems that the only open process is to respond to an RFE by 9/14. As I understand it, responding to an RFE is limited to just mailing documents back to the USCIS; it does not include, for example, an opportunity for another interview in which a competent lawyer can advocate for them and respond to questions. So there is some concern that, should they respond to the RFE with the correct birthdate, there might not be a sufficient opportunity to explain themselves. So at this stage, is it really possible to correct the record?


 


Many thanks,


JS.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Responding to the RFE with an argument and supporting evidence would be similar to an interview and an interview may be scheduled. So it is possible at this stage, but they should probably hire an attorney to respond.

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