Immigration applications frequently require the applicant to prove that he or she was physically present in the United States on a certain date.
Back in the days of 245(i), it was proving physical presence on December 21, 2000. For cancellation of removal, you have to show 10 years in the US. For deferred action, or DACA, you have to show you were under 16 and in the US prior to June 15, 2007.
And so a lot of people run into problems. If you don’t have status, you might not have a paycheck stub or a rental or lease agreement. Any pictures you might have are probably undated.
That’s where creativity comes in. As lawyers trying to find the best way to help our clients, sometimes it’s the small things that can make a huge difference.
A young Dreamer came to see us who entered the US at age 14, but since she didn’t start school until 16, she had no proof that she was in the United States when she was under 16.
I told her, bring anything you can from that time period. All she could find were three pictures. They were taken when she was 14, and they happened to be from a sightseeing trip in Washington, DC. That was good: it’s easy to tell the pictures were taken in the United States.
But there was no date on the pictures. I looked on the back; no photo date print, either. The pictures could have been taken in 1993, 2003, or 2013; there was no way to tell.
I usually look for pictures of cars. If it’s close enough, one good way is to look at the license plates and see the month and year the plates expired. Yes, it’s possible for someone to drive around with expired tags – but remember, the burden of proof is a preponderance of the evidence – you only have to show a 51% likelihood.
There were no cars in any of the pictures, unfortunately.
But then I noticed a construction barrier in one picture around the Washington Monument. I asked my client if she got to see the Monument that day, and she said no, it was closed. A quick Google search pulled up articles that the Monument was closed in September 2004 and reopened in April 2005. During that time, there were indeed “Jersey walls” – movable concrete barriers – to close the Monument to pedestrian, vehicle and tourist traffic.
Now, it’s possible that the photograph was “Photoshopped.” It’s possible the Monument was closed after my client turned 16. It’s possible that…
But again – it’s important to remember the burden of proof. By using these pictures as documentary evidence supporting an affidavit, that burden was sustained, and USCIS approved the deferred action application.
Years ago we had a 245(i) case wherein we proved physical presence in December 2000 with a picture that showed the applicant at a Home Depot, wearing an orange apron with his name and a logo that said “Proud Sponsor – Sydney Olympic Games” and – what Providence – there happened to be a Christmas tree in the background. (The Olympics were held in Sydney, Australia in the year 2000).
More frequently, we use tagged photos on Facebook; while individually they might not carry much weight, photos that have been tagged and commented on by multitudes of people are much harder to fake.
The point is, as I’ve advised my clients many times – it’s impossible to live in the United States and not leave a trail. You just have to know what you’re looking for. And a picture is usually worth a thousand words.
Hassan M. Ahmad, Esq.
