290B Motion to Reopen; Green Card Issued

Attorney Mooradian’s client, a young man from Africa, recently faced the prospect of separation from his U.S. Citizen spouse on account of fraud and misrepresentation allegations.  The client’s permanent resident status had been denied following a protracted representation by previous counsel, including multiple responses and requests to USCIS that had failed.

When the client was faced with a decision by USCIS denying his green card on account of alleged fraud and misrepresentation, Mooradian stepped in with a 290B Motion to Reopen and Reconsider.  Mooradian added additional evidence, including public records and news articles bolstering his client’s credibility, as well as written arguments.

Mooradian focused on the fact that even if the client had been inconsistent during his testimony, the issue at hand of a prior marriage should not result in inadmissibility.  Additionally, it was unclear if the USCIS’s true question or concern was that the client had a dual intention upon entering the United States and had planned to stay permanently instead of visiting his relative as indicated to the Department of State.

“[M]isrepresentation is an assertion or manifestation not in accordance with the facts.”  9 FAM 302.9-4(B)(3). “  Mooradian argued that no misrepresentation has occurred, and second, that any doubts had been countervailed by the evidence submitted.

Additionally, the misrepresentation must be shown to be willful and material.  For example, the alleged misrepresentation of the Applicant’s relative’s name is not material when the question is one of intent and purpose of travel.  Even if the Applicant made a mistake about his relative’s name, the identity of the person was the same; the address where the Applicant intended to go was the same; the individual person was the same; and public records and the DS- form then submitted appeared to show a consistent intent.  To the extent that the agency believed this person was unrelated or that intent was not present, the agency had failed to provide any basis for that conjecture; the evidence provided by the Applicant countervailed those doubts.

Given that this matter related to an adjustment of status based on marriage, the BIA precedent regarding dual intent was also relevant.  While USCIS had incorrectly found the applicant inadmissible on fraud or willful misrepresentation, the thrust of the decision was that the applicant entered on one basis, but determined to stay on another basis.  To the extent that USCIS’s decision was concerned with dual intention, Mooradian argued, it was worth noting that according to Matter of Ibrahim, Interim Decision 2866, BIA 1981, “[i]n the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain.”  Indeed, questions raised about the Applicant’s failure to reunify with his relative seemed to go more to intent than to fraud or misrepresentation, and such a dual intent, if present, should be excused as a matter of course.

In this case, the agency agreed to reopen the matter and did decide to issue a permanent resident card.

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