An immigration officer, hell-bent in denying an application for naturalization, will always find something in the applicant’s distant past to nail down the applicant. For instance, the applicant might have said at the U.S. Consulate in Manila that he studied at U.P. [giving the impression that it is the University of the Philippines]. Later when the applicant applies for naturalization, the officer might say: “Aha, We found out you did not go to the University of the Philippines but to the University of Pinatubo. You gave false testimony. You have not established that you are a person of good moral character, therefore, you are ineligible for naturalization at this time.”
INA Section 316(a)(3) provides: “No person . . . shall be naturalized, unless such applicant, . . . (3) during all the periods referred to in this subsection has been and still is a person of good moral character. . . “
INA Section 101(f)(6) provides: “For the purposes of this Act – No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is or was—
(6) one who has given false testimony for the purpose of obtaining any benefits under this Act; . . .
The Code of Federal Regulations (CFR) at 8 CFR 316.10(a)(2)(b)(2)(vi) provides:
“(2) An applicant shall be found to lack good moral character if during the statutory period the applicant: . . .
(vi) Has given false testimony to obtain any benefit from the Act, if the testimony was made under oath or affirmation and with an intent to obtain an immigration benefit;”
BURDEN AND STANDARD OF PROOF
The Applicant has the burden of proof to establish good moral character. See INA Section 316; 8 CFR Section 316.2(1).
The U.S. Citizenship and Immigration Services has the burden of proof to establish that the Applicant has given false testimony to obtain an immigration benefit. “The burden of proof is upon him who affirms – not on him who denies,” (“Affirmati non neganti incumbit probatio.”). https://definitions.uslegal.com/a/affirmati-non-neganti-incumbit-probatio/
According to the Adjudicator’s Field Manual (AFM), discussing INA Section 212(a)(6)(C)(i) [making misrepresentation to obtain a benefit is inadmissible]:
“There must be some evidentiary basis for a USCIS conclusion that an alien is inadmissible under section 212(a)(6)(C)(i) of the Act. See INS v. Elias-Zacarias, 502 U.S. 478 (1992) (Agency factfinding must be accepted, if the evidence would permit a reasonable factfinder to make the findings [“preponderance of the evidence” – standard]).”
It is “the government’s burden to prove the fraud charge with clear and convincing evidence that [the alien] willfully concealed or misrepresented a material fact and that her misrepresentation resulted in her obtaining her visa.” Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. 2008).
ELEMENTS OF GIVING FALSE TESTIMONY
The following are the elements of giving false testimony:
(1) The “testimony” must be oral. False statements in a written application and falsified documents do not constitute “testimony”.
(2) The oral statement must be made under oath.
(3) The testimony given must be false.
(4) The testimony must be made with knowledge of its falsity. The term “knowingly” means “in full awareness or consciousness; deliberately.” https://www.google.com/search?client=firefox-b-1&q=knowingly
(5) The falsehood was willfully made. The term “willfully” means “with the intention of causing harm; deliberately” and “with a stubborn and determined intention to do as one wants, regardless of the consequences.” https://www.google.com/search?client=firefox-b-1&q=willfully
(6) The falsehood was made with intent to deceive.
(7) The giving of the false testimony must have been made to induce the official to act. “We do not believe that there has been a willful misrepresentation of a material fact, because we fail to find that the misrepresentation was made for the purpose of inducing the consul to issue a visa.” Matter of G-G, 7 I&N Dec. 161 (BIA 1956).
(8) The falsehood must have been believed and acted upon by the officer or party deceived to his disadvantage.
(9) There must be a subjective intent on the part of the applicant that in providing the false testimony it was for the purpose of obtaining an immigration benefit. False testimony for any other reason does not preclude an applicant from establishing good moral character.
(10) The falsehood must be of a material fact. Section 101(f)(6) “applies only to false testimony concerning material facts.” United States v. Sheshtawy, 714 F.2d 1038 (10th Cir. 1983).
The test of materiality was set forth by the Supreme Court in Maslenjak v. United States, No. 16-309, June 22, 2017, 582 U.S. ____ (2017):
The question was “whether “a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.” Pet. for Cert. i. The answer to that question is “no.” Although the relevant criminal statute, 18 U. S. C. §1425(a), does not expressly refer to the concept of materiality, the critical statutory language effectively requires proof of materiality in a case involving false statements. The statute makes it a crime for a person to “procure” naturalization “contrary to law.” In false statement cases, then, the statute essentially imposes the familiar materiality requirement that applies in other contexts. That is, a person violates the statute by procuring naturalization through an illegal false statement which has a “natural tendency to influence” the outcome—that is, the obtaining of naturalization. Kungys v. United States, 485 U. S. 759, 772 (1988).”
“For a fact to be “material,” the government must “show by `clear, unequivocal, and convincing’ evidence either (1) that facts were suppressed which, if known, would have warranted denial of citizenship or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship.” See United States v. Sheshtawy, 714 F.2d 1038 (10th Cir. 1983).
Thus, if the applicant had fully disclosed that he went to the University of Pinatubo instead of simply stating “U.P.” would the consul have denied him an immigrant visa? No because where an applicant studied is not material in determining whether the applicant is eligible for an immigrant visa.
All of the above-mentioned elements must be established.
See USCIS Policy Manual Vol 12, Part F Good Moral Character, Chapter 5;
Adjudicator’s Field Manual (AFM), Section 212(a)(6)(C); Matter of G-G, 7 I&N Dec. 161 (BIA 1956); United States v. Sheshtawy, 714 F.2d 1038 (10th Cir. 1983); Parlak v. Holder, 578 F.3d 457, 464-65 (6th Cir. 2009).
(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. His current practice focuses on immigration law and appellate criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. Listen to The Tipon Report which he co-hosts with son Noel, the senior partner of the Bilecki & Tipon Law Firm. It is the most witty, interesting, and useful radio program in Hawaii. KNDI 1270 AM band every Thursday at 7:30 a.m. Atty. Tipon served as a U.S. Immigration Officer. He co-authored the best-seller “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration process. He first came to the United States on a student/ exchange visitor visa to study at Yale. He returned to the Philippines to resume practicing law. He came again to the United States on a non-immigrant work visa to write law books, adjusted his status to that of a lawful permanent resident, and became a naturalized citizen. Atty. Tipon was born in Laoag City, Philippines. Tel. (808) 800-7856. Cell Phone (808) 225-2645. E-Mail: [email protected] Websites: https://www.tiponlaw.com , https://www.hawaiianimmigrationattorney.com ,
https://www.bileckilawgroup.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon the contents of this article.)
What’s Up Atty 2019 02 04 Giving false testimony