In law school, future lawyers are taught how to make the best argument on behalf of clients and that each problem can be viewed in different ways. In fact, our standard judicial 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 wait for a decision. In the end, we hope that justice will be achieved when the 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 foreigners before them. In many cases, especially 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 a 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 incorrect filing can lead to deportation. Incorrect answers or “little white lies” may cause admissibility problems in the future. The potential for cheating is limitless.
Some clients have started the process alone, 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 own 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 offence; and never have been convicted of a crime or offense. 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 show the adjudicator a limited exception within the immigration code for this type of “conviction.”
The biggest concern was that his answers could be interpreted as lies. “False testimony” can also impede a finding of “good moral character” and derail naturalization hopes. In the end, we were able to present a compelling 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 people must be legally free to marry each other. In this case, the bride was previously married, but her husband had disappeared some years before. Divorce is not permitted by the Philippine government, and instead a judicial declaration of absence or presumed death was issued “for all intents and purposes”.
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 all cases have 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 advice. 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.
