Criminal Defense of Immigrants

Counsel can argue that the visa fraud ground of inadmissibility does not apply to a minor, when an adult (other than a parent) presents a fraudulent document on the minor’s behalf to gain entry to the United States.  The Ninth Circuit has imputed fraud from parent to child,[259] but there is no authority for doing so where an unrelated adult presents fraudulent documents on the minor’s behalf.  From a common law standpoint, where a minor cannot enter into a contract because of lack of capacity, it does not make sense to find that a minor can commit fraud.

                When the child is under 18, there is a good argument that s/he cannot knowingly commit fraud.[260]  If someone else (but not the child) indicated that the child was a USC by presenting a USC birth certificate at the border, the child did not make a false claim to United States citizenship, or engage in visa fraud, but merely made an EWI entry.

[259] Senica v. INS, 16 F.3d 1013 (9th Cir. Feb. 14, 1993) (parent’s knowledge of a child’s ineligibility for admission to the U.S. can be imputed to the child to preclude discretionary relief under INA § 212(k); effectively prevents a parent from making a derivative claim for a waiver under INA § 241(f) as the parent of a noncitizen lawfully admitted for permanent residence).

[260] Case Summary, Children Lack Capacity to Make False Claims or Misrepresentations, IJ Holds, 83 Interpreter Releases 775-776 (Apr. 24, 2006).