Why Social Media Matters in Immigration Cases

The use of social media sites has proliferated amongst many individuals, including foreign nationals seeking immigration benefits and relief. We’ll take a look at how social media use can benefit and hurt foreign nationals in today’s immigration climate and why it matters to you.

WHEN SOCIAL MEDIA USE CAN BE DETRIMENTAL

Back in 2010, after a bit of hemming and hawing and only upon a FOIA request by the Electronic Frontier Foundation and the Samuelson Law, Technology, and Public Policy Clinic at the University of California, Berkeley, USCIS finally released an internal memo underscoring the importance of social media to the Fraud Detection and National Security (FDNS) arm. The memo, entitled “Social Networking Sites and Their Importance to FDNS” reveals how deep USCIS adjudicators may dig when it comes to researching an immigration case it believes may be wrought with issues of fraud.Maxine D. Bayley, Associate at Duane Morris, LLP pointed out in the California Lawyer’sDecember 2011 Issue an especially disturbing trend.

Most disconcertingly, the memo does not indicate the level of suspicion required before an investigation of a person through social media is to be undertaken. No behavioral parameters are defined, leaving the impression that any USCIS officer can sit at a computer and freely conduct surveillance of any applicant’s Facebook or MySpace pages to root out “fraud.” In addition to those sites, the memo lists several others including Badoo (popular in Europe), MIGente (for Latinos), and Muxlim (for Muslims).

The warning is fairly clear. Immigration practitioners should be cognizant that USCIS will access publicly available information about their clients (perhaps even absent suspicion of fraud). In such an adjudicatory climate, where USCIS officers may be apt to use information obtained from the internet or social media sites to rebut claims or assertions made on immigration filings, clients should ultimately be aware their web personas should be consistent with the data provided in all immigration documents.

WHEN SOCIAL MEDIA USE CAN BE BENEFICIAL

On the other hand, there are instances where the use of social media sites might benefit foreign nationals. Recently, Carl Shusterman, Founder of the Law Offices of Carl Shusterman, wrote about the utility of Facebook as a means for DACA applicants to document their physical presence in the U.S. on his online immigration blog.

If your posts tell what you are doing, what movies you are seeing, what clubs you are hanging out with your friends at, it doesn’t take a detective to figure out your physical location. If your friends tag you in a photo taken in front of the Matterhorn, USCIS knows that you were at Disneyland that day, not in Switzerland.

Mr. Shusterman suggests the same utility can be extracted from MySpace or Friendster posts as well. Indeed, social media sites that incorporate a location-based component can be very helpful as a means of unofficially documenting contemporaneous events.  Clients would need to log into their accounts on a web browser in order to print out what account activities are available to them.  A few examples of potentially helpful social media sites are included below, though not all of them cover the five-year residency period needed for DACA applications:

  • Yelp: this social media site allows registered users to complete reviews of restaurants, stores, professional service providers and more. Users can also upload photos, make comments or vote on reviews by others. (Launch date: October 2004)
  • Twitter: this social media micro-blogging site allows registered users to “follow” others and to be followed by others. Users can post a “tweet” limited to 140 characters and attach photographs and hyperlinks. For active users on the go, Twitter can be a great way to document where an individual user has been at any given time and day. (Launch date: July 2006)
  • Foursquare: this is one of the more popular location-based applications available for mobile devices by means of gamification. This application allows registered users to “check-in” to locations and share this data with friends. Inherent in the application is the ability to track where and when a registered user has “checked-in” to a particular location. (Launch date: March 2009)
  • Instagram: allows registered users to take pictures on their mobile devices and share the photos with friends. The pictures also have the option of being tagged with the location of where the photo was taken. (Launch date: October 2010)

Whether used for DACA or other immigration processes, a variety of social media and mobile applications can be used in novel ways for documentary purposes to evidence location, time and dates of registered users.  This is both scary and exciting! The caveat is for counsel to review the content, prior to submission, to ensure that the content fully supports the client’s immigration case. What other social media sites have helped your clients document their case for immigration purposes? Have you successfully used it in support of a client’s immigration case?  Or do you have a horror story related to a USCIS investigation?  We’d love to hear your comments. Please subscribe to our blog to continue to receive timely, updated practice tips for your immigration practice.