Can an Illegal Immigrant File for Bankruptcy?

Your client’s legal status does not determine eligibility for bankruptcy. However, if your client has no property, no Social Security number, no ITIN, and/or no permanent address, filing for bankruptcy will not be possible.

The Bankruptcy Code does not mention legal immigration status in any context. However, anyone who files for bankruptcy must either show proof of residence, or demonstrate in rem jurisdiction by proving ownership of property that is located within the bankruptcy court’s jurisdiction. They must also show proof of identity.

A bona fide residential address is required in order to file for bankruptcy. A permanent and correct physical address must appear on the bankruptcy forms.

In addition, proof of identity, such as a Social Security or ITIN (Individual Taxpayer Identification Number) must be included on the bankruptcy forms. The Internal Revenue Service issues ITINs to assist immigrant workers who do not qualify for a Social Security number but must report their income and pay federal taxes. Over the last several years, many banks have offered home mortgages to undocumented immigrants using ITINs, and many of these loans are now in default. Some of these loans have also been made by immigrants using false Social Security numbers, which no attorney can use in completing the bankruptcy forms. An ITIN number (IRS Form W-9) should be obtained by any attorney who represents a client whose mortgage was obtained using a false Social Security number, any damage to the credit of the true owner of the Social Security number must be addressed, and the loan itself should be examined carefully for this and other defects.

About the author: Kathleen Lord-Black is an immigration and foreclosure defense attorney whose offices are located in downtown San Francisco and in Santa Cruz, CA. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, past SEIU Union Rep, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the Center for California Homeowner Association Law in Oakland, the National Association of Consumer Bankruptcy Attorneys, and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (415) 205-5601 and (831) 332-7515. Her web address is www.kathleenlord.com.