How to build an immigration fraud response team
Introduction
If you suspect you’re the victim of immigration fraud, you may wonder where to go, who to call, or what to do. Perhaps you have already hit some common roadblocks:
If you called a traditional immigration attorney, you may have been told, “Sorry, we only represent the immigrant.”
If you called immigration authorities, they may have directed you to a static website or tip form.
If you’re in court proceedings, your local attorney may even be resisting efforts to investigate immigration fraud.
Fraud victims can be bewildered. Trying to get answers from anyone can feel unattainable. Immigration laws are complex, the bureaucracies are unresponsive, and evidence of fraud is often secret.
You’ll quickly realize that the U.S. immigration system is designed for the benefit of foreign nationals, not for the protection of Americans. So what exactly are you supposed to do?
1 – Why should you take immigration fraud seriously?
Before doing anything, understand the gravity of the situation. Immigration fraud can wreak havoc on your life.
Victims of one-sided immigration marriage fraud can face substantial and indefinite financial liability under the I-864, Affidavit of Support, costing upwards of hundreds of thousands of dollars.
Victims of VAWA fraud can be falsely accused of domestic violence leading to a restraining order, criminal prosecution, and substantial legal costs.
Victims of U visa or T visa fraud can be falsely accused of one of numerous crimes leading to prosecution, prison time, and a lifetime of reputational harm.
As you start your journey, it’s imperative to prepare yourself physically, mentally, financially, and spiritually, for the fight of your life.
2 – Who should be on your fraud response team?
The outcome of your matter will likely reflect the quality of the team around you. Therefore, your first priority is to build an “A” team.
If there are no active court proceedings, often the case in one-sided marriage fraud cases, you may simply need one immigration attorney to evaluate your matter, construct a responsive framework, and begin to take offensive and defense measures.
If, however, you’re already in active court proceedings, often the case with VAWA fraud, U visa fraud, or T visa fraud, your team will likely change in two ways.
First, the size of your team will increase. Instead of hiring one immigration attorney, you’ll almost always need one additional local attorney to represent you in the underlying matter. This is often a civil, criminal, or family law attorney, depending on the nature of your case. You may also need an expert witness who can help introduce evidence of fraud at trial.
Second, the personality traits needed for your legal team will change. You need attorneys who will leave their egos at the door, listen and learn from each other, and collaborate to advance the client’s interests, not their respective “legal turfs”. You want your attorneys functioning like two blades of scissors, operating in unison to achieve a common objective.
Hire with care! Do your research. Interview several attorneys for the same position. Treat it like a job interview.
Are they a good listener, or do they talk over you?
Do they treat you like a human being, or do they treat you like a widget?
Do they answer your questions simply and clearly, or do they add to your confusion?
What type of experience do they have within their field?
Are they creative problem solvers or are they paper pushers?
Are they open to pursuing the immigration fraud, or do they shut you down?
Are they open to collaborating with other attorneys?
Will they be a fearless advocate, or will they buckle before judges and opposing counsel?
Will you have direct access to them, or will they push you off to staff?
Can you call their cell phone in cases of emergency?
3 – What is the role of your immigration attorney?
A. Strategy development
Your immigration attorney will serve as the quarterback for the immigration component of your case. They should help you determine what role immigration fraud is playing in your case, and they’ll construct an offensive and/or defensive framework to protect your interests.
If you’re the subject of a false accusation in criminal or civil court, your immigration attorney will help you and your local attorney develop the strategy for proving the lynchpin of your case: motive. The dirty little secret is that foreign nationals frequently make false accusations to qualify for immigration benefits, which is a federal crime. According to reports, foreign nationals have been suspected of faking crimes ranging from kidnapping, to rape, to slashings, to stalking, to robbery. Yet, in too many cases, local attorneys, police, prosecutors, and judges remain unaware, ambivalent, or, in some cases, even complicit in these crimes.
However, proving fraud can be challenging, especially because most immigration attorneys only represent immigrants. Finding an immigration attorney who a) is willing to represent an American, b) is willing to fearlessly advocate for the American’s interests, and c) understands the unique dynamics involved in immigration fraud, may be one of the most challenging parts of your journey.
B. Fraud investigation
In most cases, the initial goal of your immigration attorney will be to conduct or procure a fraud investigation. The purpose of this investigation is to understand what role immigration fraud is actually playing in your case. This investigation will typically involve:
Collecting relevant information about your case
Organizing information into a private and collaborative case file
Conducting initial background checks on relevant parties
Developing a timeline of events
Determining the immigration history and status of relevant foreign nationals
Identifying and analyzing key immigration risks and issues in your case
Determining your options and any recommendations
Some law firms conduct these investigations themselves. Others may outsource the entire investigation, or parts of the investigation, to a private investigator who has experience in immigration matters. Either way, this investigation should be managed by a licensed attorney so that your communications are kept confidential and shielded from disclosure under the attorney-client privilege or work product doctrine. If you hire an investigator yourself, your communications are subject to disclosure in civil and criminal litigation.
At the conclusion of the investigation, you should know what role immigration fraud could be playing in your case, or what additional evidence may be required to reach this conclusion. You should also have a clear understanding of your options, which will vary depending upon the facts in your case, the nature of the fraud, and the stage of legal proceedings, if any.
If you’re already represented by a local attorney, your immigration attorney will typically prepare a memorandum that outlines the results of the investigation. This memorandum is often followed by phone calls with the entire legal team to coordinate, discuss, and deconflict any strategic issues. These are critical moments in your journey because they will likely determine the strategic direction of your case.
C. Referrals
Immigration fraud is a serious crime. In fact, it is a felony under federal law. Therefore, if there is probable cause to believe a foreign national has committed, or is planning to commit, immigration fraud, your immigration attorney can assist you in making a criminal referral from private counsel to relevant law enforcement agencies. They can also help you submit counter-evidence to U.S. Citizenship and Immigration Services to prevent a foreign national from obtaining fraudulent immigration benefits.
D. Discovery
Prior to trial, one of the key roles of your immigration attorney will be to help uncover evidence of immigration fraud through formal discovery procedures, in coordination with your local attorney.
Due to federal statutes, and depending on the nature of the proceeding, as well as the discovery rules and practices of the jurisdiction, this can be a highly contentious and cumbersome process that requires targeted research, professional precision, and patience.
Your immigration attorney can assist your local attorney with three key aspects in the discovery process:
Determining what sources of immigration-related evidence to target
Drafting immigration-related discovery requests that thread the needle between federal law and local rules
Preparing immigration-related legal research and argumentation in anticipation of motions to compel discovery
Beware that the outcome of immigration-related discovery can also be dependent on factors outside of anyone’s control, such as the background and biases of the judge in your case, or the culture of the local legal system in which you find yourself.
E. Cross Examination
There are occasions when you may have the opportunity to cross examine the foreign national before trial. For example, this can happen if the alien files for a temporary restraining order in attempt to qualify for an immigration benefit. This is a golden opportunity – make the most of it.
If this happens, your immigration attorney should be deeply involved in helping your local attorney prepare the cross examination of the foreign national. This is because your immigration attorney will know what facts and admissions are strategically important for exposing the immigration fraud.
F. Admission of Evidence
To prove immigration fraud as a motive in your case, you not only need evidence of fraud, you need a way to introduce it at trial. This is not as easy as it sounds. Opposing counsel will object, often strenuously. Your local attorney will need to convince the judge to allow the evidence. Your immigration attorney can provide valuable litigation support by, among other things, identifying and recruiting a competent expert witness (see below) to testify before judges and juries.
G. Appeals
Trial courts sometimes make mistakes, especially when it comes to issues involving immigration fraud. These mistakes can be minimized by your local attorney who makes it their mission to educate the court on immigration fraud throughout the litigation.
One of the reasons for these mistakes, however, is because appellate courts are not frequently asked to decide issues relating to immigration fraud. As a result, unlike other well-established areas of law, trial courts may not have extensive and binding precedent to draw from.
Although the relative lack of precedent can inject uncertainty into the process, it can also create a competitive advantage in litigation. Opposing counsel is usually handling numerous cases simultaneously, most of which involve state and local law. Rarely does opposing counsel have a deep understanding of federal immigration law, and rarely do they or their clients have the resources to conduct the same quality of in-depth research and analysis as the combined efforts of your immigration attorney and local attorney. Therefore, your immigration attorney can bring valuable firepower that the opposing side can’t match.
If you do receive an adverse decision by a trial court, you may be able to appeal the decision. For example, you can usually ask an appellate court to review a trial court’s denial of a lawful discovery request for immigration filings, or a trial court’s denial of the admission of fraud-related evidence. In these cases, your immigration attorney is typically asked to assist with the appellate brief.
An appeal can help improve the outcome of your individual case, while also establishing precedent for future cases. On appeal, be sure to use competent attorneys who care about this area of law, and who will conduct deep research and analysis. Otherwise, you can waste valuable time, money, and effort on an appeal that not only doesn’t help your case, but that hurts future cases like yours.
4 – What is the role of your local attorney?
If you’re currently in court proceedings, or if you expect to be in court proceedings, you should hire a local attorney to represent you in court. Unlike your immigration attorney, who can practice federal immigration law nationwide, your local attorney should be licensed to practice law in the jurisdiction where the court is located.
Your local attorney will serve as your lead counsel and advocate for the underlying case, and they will serve as the primary conduit through which issues related to immigration fraud get presented to judge and jury.
They should be experienced in the body of law related to your underlying case. For example, if you’ve been charged with a crime, you need a criminal defense attorney. If you’re in family court, you need a family law attorney. If you’re in a civil restraining order hearing, both criminal and civil attorneys often handle these matters.
They will notify you of upcoming hearings, they will make appearances on your behalf, they will communicate with the court and opposing counsel, and they will negotiate for a resolution and/or take your case to trial before a judge or jury.
With regard to the immigration component of your case, your local attorney should educate the court on immigration fraud early and often. Judges can be overwhelmed by talk of “immigration” because, as the American Bar Association has stated, “[i]mmigration law is vast and complex.” Even the best judges may not be familiar with it, do not understand it, and may be intimidated by it. From the beginning of your case, your local attorney should seek to educate the court on the nature, relevance, and prevalence of immigration fraud. This will provide valuable context for the court in advance of future discovery requests and evidentiary admissions.
5 – What is the role of your expert witness?
Expert witnesses frequently testify in court on topics ranging from DNA, to medical negligence, to forensic accounting. But did you know that expert witnesses also testify about immigration fraud?
An expert witness serves as an independent and objective third-party to help explain scientific, technical, or specialized knowledge to assist the judge or jury. When it comes to immigration fraud, an expert witness can explain how the fraud works, and they can offer their opinion as to whether or not fraud has occurred in your particular case.
The expert is normally hired by your immigration attorney who will prepare documentation for the expert to review and rely upon for their opinion. Be careful though. The documentation you provide the expert witness will be discoverable by the opposing side. This is where the initial investigative spadework of your immigration attorney comes in handy.
Since your immigration attorney has already conducted or procured an investigation, there should already be a well-organized case file with logically labeled files, evidence, and factual summaries. These documents can be moved and sanitized into a new folder that can be quickly shared with your expert witness, saving valuable time, money, and effort. Your expert will then prepare their own independent report with findings and conclusions based on this documentation.
When it comes to court proceedings, an expert witness may be one of the only ways for your local attorney to introduce evidence of immigration fraud before the judge and jury. They can also provide valuable independent evidence before immigration adjudicators.
Conclusion
Building an immigration fraud response team is one of your most important roles as a client. The stakes can be high, and time can be short. Due to certain federal laws, the sooner you build your team, the more opportunities you’ll have to succeed. If you wait too long, you can lose valuable opportunities to mount a viable defense that you’ll never get back. But if you fight smart, you may just win the fight of your life.