Timely Retraction: Getting a Second Chance

By Attorney Nancy E. Miller

Everyone knows what it is like to speak first and think later.  Many people have also  experienced writing first and thinking later.  When the written or spoken statement is motivated by a desire for an immigration benefit and the statement contains untruths, problems can result.  Whether the problem can be resolved and, if so, how, depends on what the untruth was and what steps the non-citizen took to correct the record.

Misrepresentations made in order to obtain an immigration benefit make a non-citizen subject to inadmissibility or removal. These misrepresentations can include using a false name or other identifying information, providing false marital status and many others. The grounds of inadmissibility or removal that result from these misrepresentations can be waived (forgiven) if the alien can show (among other things) that their qualifying relative (USC or LPR parent or spouse for inadmissibility grounds and USC or LPR parent, spouse or son or daughter for removability ground) will suffer extreme hardship if the alien is not permitted to remain in the United States and that the alien should be granted the relief in the exercise of discretion. This is a great simplification of the waiver. One who may need such a waiver should have an in-depth consultation with a knowledgeable immigration attorney.

Unfortunately, certain misrepresentations are considered unforgivable under the Immigration & Nationality Act (Act).  Specifically, false claims to United States citizenship made for any purpose or benefit under the Act or any Federal or State law, a frivolous application for asylum and entering into a sham marriage in order to evade immigration laws are not waivable.

False claims to U.S. citizenship were not always Aunwaivable@.  In previous years, the immigrant was eligible for a waiver.  However, Congress toughened the punishment for this misrepresentation in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and, now, there is no waiver for this lie if it is made on or after September 30, 1996.

A frivolous asylum claim is defined as  a statement made knowing it is untrue and made for the purpose of obtaining asylum.  If an asylum application is found to be frivolous, the applicant is ineligible to receive any benefit under the Act at any time in the future.

Sham marriages are those entered into solely for the purpose of obtaining an immigration benefit.  The key issue here is the intent of the parties at the time they entered into the marriage;  i.e.   did they intend to create a marital union?  If so, even if they later changed their minds, the marriage is not sham.  If, however, they married without any intent to create a marital union, the marriage is sham and the immigrant is permanently barred from being a beneficiary or petitioner of any petition in the future.

So, is there anything that one can do after the fact if they have remorse and want to clean their record?  Fortunately, the answer is yes.  The Doctrine of Timely Retraction can undo the lie and the attending bar that goes with it.  The doctrine is of long standing and ameliorates what would otherwise be an unduly harsh result for some individuals, who, despite a momentary lapse, are generally honest and are seeking to correct their mistake.  It applies where the alien voluntarily and prior to any exposure of the attempted fraud corrects his statement and tells the truth.

Two major issues arise when asserting timely retraction: whether the retraction was voluntary and whether it was timely. The two issues are closely connected.  The Board of Immigration Appeals has defined timeliness as a question of whether the immigrant retracted his  false statement before its falsity had been or was about to be exposed. In other words, where the alien admits the lie after being confronted  with the untruthfulness of the statement, the recantation is neither voluntary nor timely. However, where the alien has not been confronted with evidence of the falsity of the statement, the recantation has been held to be timely even if it is made several years after the lie was told. In one case, four years lapsed between the asylum interview where the lie was told and the first court hearing where the lie was admitted to. The court held that was a timely retraction. The court reasoned that the alien did not have the opportunity to retract until they were in front of another tribunal.

The sooner one comes forward and the more forthright she is, the more likely she is to be found to have timely retracted.

Everyone makes mistakes.  Anyone who needs this type of second chance should consult a knowledgeable and experienced immigration attorney to help them get it.