Americas Columns

What’s Up Attorney?: What is misrepresentation and how is it applied to virginity, immigration, and haunted house?

By Emmanuel Samonte Tipon, Esq

An Ilocano lawyer asked a 19-year old girl if she had a boyfriend. She replied “No”.  He asked if she ever had a boyfriend? Again she replied “No”. “So you are a virgin,” concluded the lawyer. The girl admitted that she was. “Would you ask me for a date if I was not a virgin?” she asked. The lawyer replied: “Yes. Virginity to me is not material. I have dated married women and women with boyfriends.”

“What would concern me is if the girl said that she was a virgin and I later discovered that she was not.”  “How would you discover?” asked the girl innocently. I am a lawyer, I am a great discoverer – like Columbus – Columbus by night, not a Knight of Columbus.

Why is virginity such a big thing? Having intimate relations with a virgin is like climbing to the top of Mt. Everest. It is exhilarating. But sometimes it is not the most pleasurable.  It could also cause pain – and some suffering.

IMMIGRATION MISREPRESENTATION THAT WAS NOT MATERIAL

An unmarried Filipino applied for a visa to come to the United States. He was petitioned by his father, a U.S. citizen. The son told immigration and consular authorities that he did not have an illegitimate child. When he applied for naturalization, he stated that he had an illegitimate child. His application was denied for making a misrepresentation. He was placed in removal (deportation) proceedings.

We filed a motion to dismiss on his behalf. We argued that he might have made a misrepresentation but the misrepresentation was not material. We pointed out that misrepresentation is material if, had the truth been disclosed at the time of applying for a visa, the visa would have been denied. The misrepresentation is only material if it led to the person gaining some advantage or benefit to which he or she may not have been entitled under the true facts. A fact suppressed or misstated is not material to an alien’s entry, unless it is one which, if known, would have justified a refusal to issue the visa.”  United States v. Rossi, 299 F.2d 650, 652-53 (9th Cir. 1962).

The suppression of the fact that the son had an illegitimate child was not material to his entry because even if it was disclosed it would not have justified a refusal to issue the visa. Why? Because whether or not a son of a U.S. citizen has an illegitimate child is immaterial because having a child or no child is not a qualification for a visa for the son of a U.S. citizen.

The case was dismissed. Our client did not even see the inside of the immigration court.

IMMIGRATION MISREPRESENTATION THAT WAS MATERIAL

A married Filipina was petitioned by her mother, a lawful permanent resident (green card holder). It was approved by USCIS. At the U.S. Consulate she misrepresented that she was unmarried. A visa was issued to her. She immigrated to the U.S.  She returned to the Philippines and “married” her husband. As a lawful permanent resident, she petitioned her husband. She presented the second certificate of marriage to support her petition. USCIS approved the visa petition.

When her husband applied for an immigrant visa, the U.S. Consulate denied it because he and his wife were previously married before his wife immigrated to the U.S.  The wife was not eligible to immigrate to the U.S. because her petitioner was a lawful permanent resident who can only petition a son or daughter if unmarried.

The wife’s misrepresentation was material because if she had told the truth that she was married at the time she applied for a visa, the U.S. Consulate would not have issued a visa to her because she was not eligible. Therefore she would not have been able to immigrate to the U.S. and become a lawful permanent resident.

The wife was placed in removal proceedings. We represented her. We conceded that she was deportable but we applied for relief in the form of cancellation of removal. We pointed out that her positive factors outweighed her negative factors. The Immigration Judge granted cancellation of removal.

HAUNTED HOUSE

In real estate sales, the owner and the owner’s agent have a duty to give the buyer a “disclosure statement” prepared by the seller or at the seller’s direction, that fully and accurately discloses all material facts relating to the residential real property that is offered for sale that are within the seller’s knowledge or control.

In Hawaii the term “material fact” is any fact, defect, or condition, past or present, that would be expected to measurably affect a property’s value in the eyes of a reasonable person. Selling the property “AS IS” might not necessarily constitute a defense in a case for failure to disclose material facts, since the purpose of an “AS IS” Condition Addendum is to inform the buyer that the seller will not make any repairs to the property and will not make any express or implied warranties.

There is no reported case in Hawaii on disclosure of haunted houses. But there is a New York case. A prospective buyer signed a contract to purchase a home and deposited $32,500. Upon learning of the home’s reputation as haunted, the buyer demanded that the contract of sale be rescinded and his down payment returned, arguing that the seller and her real estate broker had made material misrepresentations of the property by not disclosing that the house was haunted. The buyer said he was not “local” and did not know the reputation of the house as haunted.

The seller refused, saying that the sale was an “As Is” sale. She did not deny that the house was haunted. She said that she had reported the presence of poltergeists or ghosts in the home in national publications and the home was included in a walking tour of Nyack, NY as a “riverfront Victorian (with ghost).”

The buyer sued the seller to rescind the contract to sell and recover his down payment. “Pity me not but lend thy serious hearing to what I shall unfold” (William Shakespeare, Hamlet, Act I, Scene V [Ghost]).

The court held that the real estate broker, as the seller’s agent, had no duty to disclose to a potential buyer the “phantasmal reputation of the premises.” The buyer’s pursuit of a legal remedy for fraudulent misrepresentation against the seller “hasn’t a ghost of a chance” because New York law fails to recognize any remedy for damages as a result of the seller’s mere silence, applying instead the strict rule of caveat emptor. But the court said that it was nevertheless moved by the spirit of equity to allow the buyer to seek rescission of the contract of sale and recovery of his down payment. Stambovsky v. Ackley, 169 A.D.2d 254 (N.Y. App. Div. 1991), 572 N.Y.S.2d 672.