USCIS Sometimes Does the Right Thing, but Usually Quietly

Every so often USCIS does exactly the right thing, but rarely tells anyone about it.

Here’s an example from a couple of years ago, not published until now: There was a long-time illegal alien who had dramatically cheated the United States on her income tax return regarding a big capital gain. Simultaneously, despite a claimed million or two in the bank, she collected Earned Income Tax Credits (EITC), a program for the working poor. She then provided documentation to the government unwittingly proving all of the above.

This clearly non-admirable person was trying to convince USCIS that she should be given a green card under the immigrant investor (EB-5) program for one of her financial transactions, but the agency said no, as it should have done. It did not find her a credible applicant.

Unfortunately, she is one of the questionable types (both aliens and citizens) who are attracted to this program; not typical, of course, but all too common.

This good agency deed would have remained hidden except that she would not accept the staff’s negative decision and appealed it to the Administrative Appeals Office (AAO). That body, though it kept her identity secret, rejected her appeal for a number of reasons. I encountered the lengthy, detailed decision while looking over a batch of EB-5 judgments by that organization, almost all of them confirmations of staff denials.

What I find puzzling in many of these cases is how persistent the applicants can be. Or how much chutzpah they have. The lady’s case, as her lawyer presented it to AAO, was chock full of conflicting evidence, at least one altered document, and many other problems. It was sure to fail. How any self-respecting attorney could take this mess into an administrative court is beyond my ken — except that the lawyer would be paid for his or her time.

The EB-5 program gives a family of aliens a batch of green cards for a half-million-dollar investment in a government-approved — but not guaranteed — development; that’s the usual arrangement. There is another provision in the law that provides the green card for a million dollars in other investments. In both parts of the program you need to prove to the government that the money involved belongs to you and that it was secured through lawful means.

This alien chose the million-dollar route and said that she had secured the million from a real estate deal in which she bought and sold a property for a whopping profit without any indication that she had invested a dime in the transaction. She said that this happened in 2008. She also filed income tax returns for several years.

But her 2008 income tax return showed a gross income of $31,729, a low enough number that she applied for, and secured EITC. The return also indicated that if her story about the real estate deal were correct, she had failed to report a very substantial capital gain that year.

AAO was careful to note that the mere receipt of EITC benefits would not disqualify an EB-5 applicant, but said that the combination of those tax-break receipts and the claimed capital gain did create a credibility problem.

She should be deported, of course, but AAO decisions, even in gross cases such as this one, never indicate that the system has reported the alien to the proper officials at ICE for expulsion. Maybe they do that and don’t include it in the opinions, or more likely, this simply does not happen.

The whole, much-redacted text of the 2010 AAO opinion is available here.

AAO opinions routinely are scrubbed clean of all alien names and anything that might give a hint of those names; the identities of the lawyers and the decision-makers are also removed. Since this is the case, we will never know the name of the lawyer that took this sure-loser into court.

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