Proposed Immigration Fraud Victim Rights & Protections Provisions:
1. Extend the Crime Victim Rights Act (or similar rights and protections) to victims, witnesses and informants within DHS administrative proceedings and investigations.
Most immigration-related crimes are prosecuted through civil - United States Citizenship & Immigration Services (USCIS) - administrative proceedings. The Crime Victim Rights Act does not extend to administrative proceedings. Therefore, victims of immigration benefit/marriage fraud are left without any protections or rights afforded to other victims of federal crimes.
2. Grant witnesses/informants protections against witness/informant retaliation and tampering, through an administrative cause of action to seek enforcement of retaliation/tampering laws and a restraining order against further tampering/retaliation.
18 U.S. Code 151 defines witness tampering/retaliation laws (18 U.S. Code 1513 and 19 U.S. Code 1512) as pertaining to proceedings before federal agencies. However, according to the Department of Homeland Security (DHS) and it sub-components and agencies, DHS has “no policy” to protect witnesses/informants from retaliation/intimidation. This harms victims as well as the integrity of the legal immigration system as a whole.
3. Require DHS contracts & applications to adhere to common contract laws, declare the alien beneficiary a “party,” and provide a method for applicants, petitioners, and sponsors to have their contracts/applications declared null & void from inception.
Other Federal agencies allow applicants/petitioners the ability to correct errors, withdraw applications or void applications all together. Common contract laws also allow individuals to void contracts when certain conditions are met. However, DHS refuses to allow victims of fraud the opportunity to withdraw or void their applications/contracts under any circumstances. Victims of benefit/marriage fraud need a method to have their contracts/applications declared null & void from inception, when evidence shows: (A) mutual mistake, (B) misrepresentations, (C) errors, (D) non-disclosure, (E) undue influence or duress, (F) one party’s legal incapacity to enter the contract, (G) unconscionable terms, (H) breach of contract and/or (I) fraud – originating from any party or the beneficiary (ie. the alien committing benefit/marriage fraud).
4. Either (A) require USCIS to maintain files on ALL applicants/petitioners regardless of immigration status (ie. U.S. Citizen petitioners/sponsors) AND require USCIS to place any information pertaining to any applicant/petitioner into their file (including information pertaining to more than one individual) or (B) grant ALL applicants/petitioners access to their own applications/contracts and anything pertaining to them held within alien files.
Currently USCIS fails to maintain files on U.S. Citizen applicants/petitioners. Instead, USCIS places all U.S. Citizen records into alien files, granting aliens unfettered access to U.S. Citizen private information and contracts, while denying the U.S. Citizen access to his/her own information, copies of contracts/applications, or the ability to correct errors within the record.