Recently, we discussed whether non-citizens could file bankruptcy in U.S. bankruptcy courts. The answer was clearly in the affirmative. Title 11 Section 109(a) of the bankruptcy code doesn’t distinguish between citizens and non-citizens. This way residents and people who own property anywhere in the U.S. can use the federal bankruptcy system.
But what if you’re not in the country legally? The answer to that question is not so obvious.
Fortunately, even if you are not permitted to be in the country, you are a resident, and if you own a business or any property, you pass the test required of the bankruptcy code. To be a resident, you merely need to be physically present in-state for the better part of 180 days. Where things get sticky for illegal aliens is when it comes time for petitioners to prove their identities. You still must provide valid photo identification, Social Security number, or an Individual Tax Identification Number (ITIN). If you provide a fraudulent identification—often a Social Security number not assigned to you—you will not only fail to prove your identity but you will also be committing perjury, a felony that could result in your incarceration. Additionally, if you use a false identity on any of your debt instruments, the bankruptcy court may disallow you a discharge. The time this is tested is the first meeting of the creditors, the “341 meeting,” when you will be asked to provide identification that proves your Social Security or ITIN numbers.
In reality, aliens who file bankruptcy are authorized to be in the country. Those who are not authorized likely did so on account of a minor technicality, for example overstaying a visa. If you are not authorized to be in the United States and you wish to file bankruptcy in New York, you will definitely need an experienced bankruptcy attorney to manage your case.
For more questions about residency, debt, collectors, bankruptcy, the automatic stay and effective strategies for dealing with foreclosure, please feel free to contact experienced bankruptcy attorney New York Bruce Weiner for a free initial consultation.
