An illegal immigrant can file for bankruptcy in the United States. There is no reference to a citizenship requirement in the Bankruptcy Law. US Code §109 provides the requirements to be a “debtor.” The most common way to be eligible to be a debtor is to have a “domicile” in your state. A domicile “requires the physical presence of a person at the place of the domicile claimed, coupled with the intention of making it his present home.” Ellis v. Southeast Construction Co., Inc., 260 F.2d 280. The timing of where you use as a domicile can be tricky if you have not been domiciled in your state for two years.
Assuming you’ve been living in your home state for a while, what other hurdles might an illegal immigrant face? You don’t need a Social Security card to file for bankruptcy, but if you don’t have one, you will need to provide an ITIN. An ITIN is an Individual Taxpayer Identification Number, which is often used by people who can’t obtain a Social Security Number but want to pay taxes to avoid problems with the IRS. However, if you are trying to apply for a United States citizenship before immigrating over, it is definitely in your best interest to find out how to get your social security card so that the process may be easier for you to apply for bankruptcy if required. By already having this type of card in your possession, it could prove to be beneficial to you if you ever need to apply for other types of benefits. It’s not a necessity, but it could make everything else run smoother, especially when it comes to your finances.
If you have been using a SSN that isn’t yours, don’t put it on your bankruptcy petition! Bankruptcy courts don’t like being lied to and will serve up jail time to those who attempt fraud. Not only can you get in legal trouble for false statements on your bankruptcy forms, but debts incurred using a SSN that wasn’t yours may not be dischargeable under the Bankruptcy Code.
In Oregon and in many other states, you will also need to be able to prove your identity at the 341 meeting, also known as the First Meeting of Creditors. You will need an ID document that proves your SSN or ITIN such as a SSN card or a pay stub, and a photo ID, such as a driver’s license or passport.
Of course, there is a long list of other things you will need for your bankruptcy, but those are requirements that all debtors must face, not just those without citizenship. Bankruptcy is a complicated process, but there are few additional barriers to non-citizens.
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