If you are thinking of filing for bankruptcy, but are undocumented you may be wondering whether you can qualify for bankruptcy. Generally, being undocumented will not stop an individual from being qualified to file for bankruptcy. The Bankruptcy Code specifically defines who can file bankruptcy, i.e., who can be a “debtor.” Section 109(a) of the Bankruptcy Code does not prohibit a person without a social security number, or without proper documentation of citizenship or legal status, from being a “debtor.” See, 11 U.S.C. § 109(a). (“[O]nly a person that resides or has a domicile, a place of business, or property in the United States, or a municipality, may be a debtor under [the Bankruptcy Code].”). See, also, In re Merlo, 265 B.R. 502, 503 (Bankr. S.D. Fla. 2001) (“The Bankruptcy Code does not exclude debtors from bankruptcy protection simply because they have no social security number. This means that debtors who have an ITIN can file for bankruptcy. Moreover, the bankruptcy forms have a section where individuals who don’t have a social security number, can let the court know that they don’t have one.
What If I incurred the Debt with a Fake Social Security number?
If you are concerned with whether you can qualify for bankruptcy because of your immigration status or citizenship, then you should consult with a bankruptcy lawyer. Non- citizens considering filing for bankruptcy, should always address their concerns about the status of their citizenship, immigration, documentation, and/or their social security number with a bankruptcy lawyer just to ensure there are no other issues that may arise with their immigration status. Below we will discuss some issues that may arise.
Non-citizen issues that need to be considered before filing bankruptcy
An individual thinking about filing for bankruptcy who is a non citizen should always keep in mind what their social security number was used for. The Bankruptcy Court will consider whether the individual has used a social security number that was “invented” or “borrowed” from another person; and, if so (b) has that social security number been used to incur debt that will be administered through bankruptcy.
These questions must be considered before a non- citizen files for bankruptcy because any social security number used by the potential debtor must be disclosed in their Bankruptcy Official Form 101. If a person has used someone else’s social security number and chooses not to disclose that to the bankruptcy court, this can lead to serious criminal charges. An example of this was In Re Perez, where the Defendant was convicted of bankruptcy fraud for falsely representing on Bankruptcy Form that she had only one Social Security number. If a person who files for bankruptcy has, used either an “invented” or a “borrowed” social security number from another person, a creditor can commence an adversary proceeding in that person’s bankruptcy case alleging misrepresentation by that person in connection with the debt in question. An adversary proceeding is a case within the bankruptcy court requesting that the non-citizen’s bankruptcy be dismissed thus, not allowing a discharge of the debts.
Undocumented individual ‘s filing for bankruptcy
To file bankruptcy, debtors must provide documentation like a social security card, taxes, ITIN number for their bankruptcy case to proceed. Non US citizens or undocumented individuals considering bankruptcy should be aware that not having such documentation can hinder their bankruptcy case.
Individuals who have documentation that evidences a short-term business or visitor’s visa, or deeming that person a Legal Permanent Resident (LPR), or have no documentation at all may still file for bankruptcy as long as they can provide certain types of documentation. To file for bankruptcy, an individual must provide of residency in advance of filing a bankruptcy case.
Can I File For Bankruptcy with an ITIN number?
A person who is not eligible to receive a social security number may obtain an individual taxpayer identification number (“ITIN”) from the Internal Revenue Service. Individuals that have a card stating that they have an ITIN number can file for bankruptcy protection. Obtaining documentation of an ITIN can make the bankruptcy process more streamlined.
Further, if you plan to file for bankruptcy, and you are a non citizen or have no status it is important to have some type of identification prior to filing for bankruptcy. The Office of the United States Trustee requires debtors provide acceptable identification, and any person filing a bankruptcy petition should be aware that some proof of identification will be required of them at some point in the bankruptcy process, specifically at the 341(s) meeting of creditors.
So, let’s recap whether an undocumented, non citizen or Legal permanent resident can file for bankruptcy. As stated above, undocumented, non- citizens and legal permanent residents can file for bankruptcy. However, if you use a fake social security number to take out the debt, there is a chance that debt will not be dischargeable. Individuals can use an ITIN number to file for bankruptcy. It is always important for any individual considering bankruptcy that has concerns about their immigration status to speak with a qualified bankruptcy lawyer.
About Karra L. Kingston Esq.
New Jersey and New York Bankruptcy lawyer Karra Kingston has helped numerous people file for bankruptcy.
From our offices in Union City, New Jersey, West New York, New Jersey, Staten Island, New York, Brooklyn, New York, Basking Ridge, New Jersey, Jersey City, New Jersey, and Bayonne, New Jersey we help clients file Chapter 7 bankruptcy and Chapter 13 cases by leading them through the legal process.
Call us today to speak with the experienced bankruptcy attorneys at Karra L. Kingston Esq. We’ll help walk you through the bankruptcy process to have a successful bankruptcy, rebuild your credit, and move forward with your new debt-free life.