Nationals from six countries are subject to Trump travel ban, except those with bona fide ties to U.S. – Supreme Court

On June 26, 2017, the United States Supreme Court, in a per curiam opinion (opinion by the whole court), granted President Donald J. Trump’s petitions for certiorari to review two Court of Appeals orders that had struck down Executive Order No. 13780 (the so-called “travel ban”) which had suspended the entry of nationals from six designated countries for 90 days. Donald J. Trump v. International Refugee Assistance Project, et al.; Donald J. Trump v. Hawaii, et al.  https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf

The Court also granted in part Trump’s applications to stay the injunctions issued by the two Courts of Appeals which had prevented the enforcement of his Executive Orders 13769 and 13780. The Court said “all foreign nationals are subject” to the provisions of Executive Order 13780, except “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” For individuals, a close familial relationship is required. For entities, the relationship must be formal, documented, and formed in the ordinary course. Students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too is a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.

Groups seeking to evade Executive Order 13780 will not be allowed to do so. For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

An individ­ual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States will not be barred by Executive Order 13780.

On January 27, 2017, President Donald J. Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States (EO-1).  EO-1 suspended entry of foreign nationals from seven countries identified as presenting heightened terrorism risks—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—for 90 days. Executive officials were instructed to review the adequacy of current practices relating to visa adjudica­tions during this 90-day period.  On March 6, 2017, President Trump issued Executive Order No. 13780 (EO-2) modifying EO-1.  EO–2 directed that entry of nationals from six of the seven countries designated in EO–1—Iran, Libya, Somalia, Sudan, Syria, and Yemen—be “suspended for 90 days from the effective date” of the order.

Section 212(f) of the Immigration and Nationality Act [8 USC § 1182(f)] authorizes the President whenever he finds that the entry of any aliens or of any class of aliens into the United States “would be detrimental to the interests of the United States,” to suspend the entry of all aliens or any class of aliens

or impose on the entry of aliens any restrictions he may deem to be appropriate

In International Refugee Assistance Project v. Trump, a U.S. District Court in Maryland - relying on the Establishment Clause—enjoined nationwide enforcement of all of §§ 2 and 6 of EO-2. John Doe # 1, a co-petitioner, had an Iranian wife who was seeking entry into the United States. The injunction was affirmed by the Court of Appeals for the Fourth Circuit on May 25, 2017, holding that the primary purpose of the ban was religious, in violation of the First Amendment.  The government argued that the Executive Order had a “facially legitimate and bona fide” justification of protecting national security.

In Hawaii v. Trump, a U.S. District Court in Hawaii also enjoined the enforcement of EO-2.  Ismail Elshik, whose Syrian mother in law was seeking entry into the United States, was a co-petitioner. On June 12, 2017, the injunction was affirmed by the Court of Appeals for the Ninth Circuit on the ground that EO-2 exceeded the President’s authority because there was no sufficient finding “that the entry of the excluded classes would be detri­mental to the interests of the United States.”

The Government argued that a 90-day pause on entry is necessary to prevent potentially danger­ous individuals from entering the United States while the Executive reviews the adequacy of information provided by foreign governments in connection with visa adjudica­tions.

APPEALS COURT JUDGMENTS WILL BE REVERSED SAYS JUSTICE THOMAS

In a concurring and dissenting opinion by Justice Thomas which was joined by Justices Gorsuch and Alito, he said that the preliminary injunctions issued by the Courts of Appeals should be stayed in full because the government meets the two most critical factors in granting a stay (1) the applicant has made a strong showing that it is likely to succeed on the merits, and (2) the applicant will be irreparably injured absent a stay. He said “I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits – that is, that the judgments below will be reversed.”

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: This email address is being protected from spambots. You need JavaScript enabled to view it.. Website: www.bileckilawgroup.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)

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D.U.I. AND SOBRIETY CHECKPOINTS

With Memorial Day and the summer season coming soon, many should be aware of DUI checkpoints. Generally, probable cause to stop and question the driver-—observing a traffic violation, defect in the vehicle or driving pattern that indicates the driver may be under the influence of alcohol, narcotics or both. However DUI sobriety checkpoints is an exception to this rule and courts have upheld the power of the police to conduct systematic traffic stops.
To pass constitutional muster under both federal and state laws specific guidelines are outlined in cases such as Ingersoll v. Palmer in California. If the police do not follow the protocol described such as in Ingersoll, the checkpoint is not lawful, and any evidence gathered during arrest may not be admissible in court. Without the evidence collected at the scene, most cases will be dismissed.
The California Supreme Court identified eight factors that minimize the intrusiveness on the individual being stopped, while balancing the needs of the society to keep the “drunk” drivers off the road.
(1) Supervisors Decide: The establishment and location of sobriety checkpoints must be decided by supervisory police officers, not officers in the field. This is important in order to reduce the potential for arbitrary and random enforcement.

(2) Field Officers Discretion Limited: A neutral mathematical formula, such as every sixth driver etc. is used in determined in who to stop. Again with the purpose that field officers do not get to stop any driver he/she chooses.
(3) Safety Conditions Installed: In order to minimize risk of danger to motorists and police, proper lighting, warning signs and signals must be clearly visible. Clearly identifiable official vehicles and personnel must be present.
(4) Reasonable Location: The sites chosen should be those which will be most effective in actually stopping drunk drivers. They must provide documentation and history that at or near the location, high incidents of alcohol-related accidents and arrests have occurred.
(5) Time and Duration: Police are expected to use reasonable and good judgment in determining the duration of the checkpoints. The goal is to insure effectiveness of the operation coupled with the safety of the general public.
(6) Indicia of Roadblock: It should be established with high visibility, including warning lights, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. Not only are these factors important for safety reasons, but advance warning is necessary to reassure motorists the stop is officially authorized.
(7) Length and Nature of Detention: Only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, bloodshot eyes. If no impairment exists, the driver should be permitted to drive on without further delay. If the officer observes signs of impairment, the driver will be directed to a separate area for further investigation and the general principles of detention and arrest would apply.
(8) Advanced Publicity: There must be notice to the public prior. The thought is that, it limits intrusion on a

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The domestic violence allegations surrounding Johnny Depp and its impact, if any on the divorce proceedings.

We all have read and seen pictures of what appears to be injuries to Johnny Depp’s spouse, Amber Heard. A petition for dissolution has been filed by Ms. Heard to terminate her marriage to Mr. Depp and appears to be requesting also financial issues, including but not limited to, spousal support and asset division. She also filed a request for a restraining order based on her alleged fear and prior physical and mental violence caused by Mr. Depp.

Although many attorneys use the “guideline” dissomaster computer program to calculate temporary spousal support, the dissomaster computation is merely a starting point. The court is required by law to consider all factors set forth in California Family Code (FC) 4320.

FC 4320(i) states in full that “documented evident of any history of domestic violence, as defined in Section 6211, between the parties, including but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party, and consideration of any history of violence against the supporting party by the supported party.”

FC 4320(m) states in full that “the criminal conviction of an abusive spouse and the elimination of the award in accordance with FC section 4325.”

FC 4320(n): states in full that the court can consider, “any other factors the court determines are just and equitable.”

There is no open and current criminal case against Mr. Depp. But as we see in the tabloids and media outlets, Ms. Heard’s attorney or representatives are “putting” out there photos of her bruises, broken glasses at the scene, etc. and the Los Angeles City and County prosecutors may take a second or even a first “look” into this case. Note, however, that even though Ms. Heard did call the police at one of the incidents, the police indicated there was “no crime” and never pursued any domestic violence arrest of Mr. Depp.

Why are these allegations of domestic violence—both physical and emotional acts surfacing? As already stated above, the court is required to review all filed or non-filed acts of domestic violence, including emotional impact on the supported spouse.
She was granted a temporary restraining order and a permanent order hearing should have been scheduled. It is at this time that the court will decide whether a restraining order, usually lasting 3 years will be instituted.

Disproving domestic violence is not easy and fighting a protective order or a restraining order against you requires a skilled trial attorney. The standard of proof in the civil case (family law) is preponderance of evidence and the criminal case is beyond a reasonable doubt.
The orders are the same in both the family and criminal courts. The terms of staying away from the

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VICTIM OF A CRIME

I just dealt with a case dealing with the victim of a very serious crime (attempted murder). The initial bail in this amount was $100,000 but after discussing the case with the victim and his wife, this amount was too low. I immediately worked with the victim and his wife to contact the District Attorney and the law enforcement agencies to insure that the appropriate charge (initially assault with a firearm to be revised to attempted murder/murder), increase bail from 100k to 2million dollars and to get a criminal restraining order for both husband and wife. After advising them to gather additional evidence and provide to the police agency, a search warrant was executed. This was all done in 2 days since the defendant was going to be arraigned in “48” hours since he was in custody.
Victims in criminal cases are witnesses –they are not a party to a criminal case. Consequently, many victims are not aware that they should actively “participate” in their case. I had another victim to a rape case who called me after the criminal case was “dismissed.” She wanted me to help her get a restraining order in civil court since when the criminal case was dismissed, no criminal protective order was issued. To say, she was confused as to why her case was dismissed is “putting it mildly.” But it was too late for me to help her in the criminal process when the prosecuting agency has already decided it would not file the case.


The point is hiring a criminal attorney to assist victims in “dealing” with the criminal court system is essential. It is not only critical but as a victim of a crime, in California and many other states, it is your constitutional right. California Constitution article I, Section 28, section (b) has significantly expanded the rights of the victim. This is commonly referred to as “Marsy’s law.”
Victims of a crime, as defined under the California Constitution is a “person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.” The term “victim” also includes the person’s spouse, parents, children, siblings, or guardian or a legal representative, such as an attorney, of a crime victim. This victim may be deceased, a minor, or physically or psychologically incapacitated.
These rights are commonly referred to as “Marsy’s Law” which was passed by California voters in 2008 as Proposition 9, the Victims’ Bill of Rights Act of 2008. This measure amended the California Constitution to provide additional rights to victims. It became the strongest and most comprehensive Constitutional victims’ rights law in the U.S. and put California in the forefront of the national victims’ rights movement.
Dr. Henry T. Nicholas, the co-founder of Broadcom Corporation was the key backer and proponent of Marsy’s Law. Marsy’s Law was named after Dr. Nicholas’ sister, Marsalee (Marsy) Nicholas. While a student at the University of California Santa Barbara, she was stalked and killed by her ex-boyfriend in 1983. Only a week after Marsy was murdered, Dr. Nicholas’ and Marsy’s mother, Mrs. Marcella Leach, walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer. She had no idea that he had been released on bail.
Prior to the passage of the law, the courts, the prosecutors, and law enforcement had no legal obligation to keep families of

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USE YOUR RIGHT TO REMAIN SILENT

I had two clients call me recently about why they were not provided their “Miranda” rights prior to the police asking them questions. If you are not under “arrest,” the rights are not triggered. Both clients made admissions to the alleged crimes and the analysis then proceeds to whether they were under arrest and should have been advised of their constitutional rights.

The landmark case of Miranda v. Arizona continues to evoke confusion by many individuals confronted by the police. Ernesto Miranda, a rape suspect, was arrested and taken to the police station. After two hours of questioning, he signed a written confession and was subsequently found guilty. Miranda appealed his conviction on the grounds that prior to confessing, he had not been informed of his Fifth Amendment right against self-incrimination or his Sixth Amendment right to counsel.

The United States Supreme Court overturned Mr. Miranda’s conviction finding that the coercive nature of detention in a police situation necessitates certain safeguards in order to ensure that suspects that do not intelligently waive their rights. The ruling held that when law enforcement officers take a suspect into custody with the intention of conducting an interrogation, they must advise the suspect of certain fundamental rights.

(1) The right to remain silent;
(2) Anything you say will be used against you in court;
(3) The right to have an attorney present;
(4) If you cannot afford an attorney, one will be provided at no cost to you.

This case had broad ramifications for all police officers and required them to issue these warnings when a person is placed under arrest and will be interrogated. Note also that the officers are required to make sure you understand either each right specifically or in its entirety. In practice, many officers will state, “do you understand” after each right or at the end of the warning—either way has been held to be proper.

We are all aware of the contents of Miranda. It is recited on police shows everyday and many can repeat it verbatim, though often without a clear understanding of its significance. More importantly, as I have seen in my criminal cases, simply ignored, misunderstood or feared. Simply stated, many either turn a “blind eye” or disregard the best course of action for any arrestee: say nothing or seek the help of an attorney.

Keep in mind that the environment that Miranda must be invoked requires custody (arrest) and interrogation (questioning) by law enforcement officers. Hence, if they are not cops, Miranda does not apply. Moreover, statements “volunteered” by the suspect at any time; “spontaneous” statements, or providing basic personal information such as name, address, and social security does not require the advisement. I placed quotes on the words volunteer and spontaneous. As a criminal defense attorney, these types of statements are subject to analysis and should be carefully scrutinized if they are truly voluntarily or

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FIREWORKS: ARE THEY LEGAL?

It is approaching July 4th and as many of us know many people enjoy “blowing” things up. It maybe a “homage” to the rockets’ red glare that Americans love fireworks and prior to 1950, few states regulated them. But due to concern over injuries, enactment of laws were implemented.

Even sparklers burns at 2,000 degrees Fahrenheit and so it will severely burn and scar skin. In fact sparklers are the number one cause of reported injuries due to fireworks. The federal government regulates fireworks under the Hazardous Transportation Act and Hazardous Substances Act. But the federal government allows the states to enact their own more stringent statutes.

In California, the State Fireworks Law was enacted in 1974 (Health & Safety Code Section 12500 and following). Under this, the state classifies the items that qualify as “fireworks”, who may possess or sell them, and dictates when and where they may be set off.

Fireworks are defined as being any device containing chemical elements that do not require oxygen to burn and that produces audible, visual, mechanical or heat pyrotechnic effects for entertainment. Private citizens who are not licensed by the state to discharge explosives are strictly prohibited from possessing and/or discharging certain fireworks that state law lists as “dangerous.”

Unlike some states, California explicitly defines what are “safe and sane” fireworks. These are the fireworks that may be sold, purchased, and used by the general public, but only within very strict parameters. Only licensed retailers can sell them and they can only do so from June 28 to July 6 each year.

It is illegal to sell or give dangerous fireworks to anyone under 18 and illegal to sell or give safe and sane fireworks to anyone under 16. Most violations are misdemeanors with penalties of up to 1-year county jail and/or fine of up to $1000, excluding penalties and assessment charges. However, if you possess large quantities of dangerous fireworks and not licensed to do so, you can be charged with a felony with up to 3-years of state prison and up to $50,000 of fines, excluding restitution (i.e. fire department, victims).

Unlike people, pets do not associate the noise, flashes, and burning smell of the fireworks with celebration. Pets, as many of you know, are terrified of fireworks. In fact, July 6 is the busiest day of the year for animal shelters so keep your pet indoors. The loud noise creates panic for them and will make them break free and jump a fence to attempt to find safety. If your pet does manage to become lost, it is critical that proper identification is on them (microchip, ID tags) should be placed on them at all times.

Enjoy a safe and stress-free July 4th everyone! Any questions or inquiries, do not hesitate to email me at This email address is being protected from spambots. You need JavaScript enabled to view it. or call my office at 310-601-7144.

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‘Amboy’  

In the 1970s and early1980s, the colloquial word “amboy” (a contraction of the English words “American” and “boy”) was often used in the Philippines to refer to a Filipino who goes to the United States and who returns to the old country acting like an American in dress, manner, and language (particularly those who pronounce Pilipino words with a strong American accent). The word had a negative connotation then because it was used to refer to a person or a friend who strives and tries very hard to portray himself as a non-local (or a non-Filipino). One who also tries to show his old friends from the neighborhood that his preference for food, sanitation, convenience, and comfort are already different and have changed (i.e. “nag-iba na siya” or “ibang tao na siya”).
Amboy was also used a lot before to describe and refer to leaders and elected officials in the Philippines particularly in the national scene as “pro-American politicians” who advocate and advance the vested interests of the U.S. rather than the interest of the Filipino people and the Philippines as a nation.
President Manuel Roxas received the amboy tag after he became president after the U.S. granted the Philippines her independence on July 4, 1946.
To keep its colonial and semi-colonial treatment of the Philippines, the U.S. Congress passed the “Bell Trade Act of 1946” (also known as the “Philippine Trade Act”) which became the governing trade policy between the Philippines and the U.S.
The Bell Act, particularly its parity clause, granted equal rights to U.S. citizens and American corporations to explore the natural resources of the Philippines, a right that should have been reserved to the Filipino people. For many nationalists and progressive activists then, the Bell Act was an unacceptable and inexcusable surrender of Philippine national sovereignty.
Succeeding presidents after President Roxas were also suspected and tagged as amboys from President Ramon Magsaysay who was said to have CIA connections to Ferdinand Marcos who progressive activists in the 1970s and the 1980s called “tuta ng Kano” as the U.S. turned a blind eye on the evils of his martial law regime because Marcos faithfully guaranteed the stay of the U.S. military facilities in the Philippines.
The amboy tag though has not been used often to refer to post-1986 presidents in the Philippines. It’s only the left (the CPP-NPA-NDF forces and their allies) who still considers the Philippines as a colony of the U.S. as they have consistently labeled every administration after Marcos as an American puppet--- i.e. “U.S. - Aquino Regime” or “U.S. - Ramos Regime.”
President Duterte appears to be the exception to this puppet labeling coming from the left.
Duterte projects and fancies himself as an anti-American and has loudly declared his pro-China and pro-Putin/Russia stand. But his anti-American posturing might not hold water any longer as the U.S. Embassy in the Philippines has announced recently that the Philippine government has requested the help of Americans in getting rid of and defeating the Maute Group in Marawi.
Going back to the word amboy, with many Filipinos going overseas to work and many more leaving the Philippines to immigrate to foreign lands for greener pastures, Filipinos in the Philippines have a better understanding and are more accepting (and tolerating) these days to the fact that overseas Filipinos learn and adapt to culture, attitudes, and ways that are practiced in the foreign countries and places where they go, work, or reside.
This may be the reason why the word “amboy” if ever used or spoken these days (for Filipinos coming from the U.S., the words “Filipino American,” “Fil-Ams” or “American Filipinos” are now used by more Filipinos in the old country than the colloquial “amboy”) is no longer considered derogatory or negative. This is a positive sign that we Filipinos have also accepted the reality that we are a global nation, that Filipinos outside the boundaries of the Philippines are also Filipinos, and that we are one as a people--- “Pilipino ka maging saan ka man.”
Until next week!
Jojo Liangco is an attorney with the Law Offices of Amancio M. Liangco Jr. in San Francisco, California. His practice is in the areas of immigration, family law, personal injury, civil litigation, business law, bankruptcy, DUI cases, criminal defense and traffic court cases. Please send your comments to Jojo Liangco, c/o Law Offices of Amancio "Jojo" Liangco, 605 Market Street, Suite 605, San Francisco, CA 94105 or you can call him (415) 974-5336.

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What Happens When You Accept Voluntary Departure

By Reeves Miller Zhang & Diza


Aliens in removal proceedings are faced with the very real possibility of being deported from the United States. While in proceedings, the non-citizen may request various forms of relief that will allow them to remain here. Sometimes, the alien is not eligible for any relief that will let them stay. The alien may be asked, at that point, whether they wish to accept voluntary departure in order to avoid a deportation order. Many issues must be considered in order to make an informed decision in this matter.

The maximum amount of time that an immigration judge can give an alien to voluntarily depart the United States is 120 days. This amount is only available at the beginning of proceedings (with very few exceptions). In addition, the granting of that amount of time requires that the alien waive all rights to appeal. If the alien accepts this form of voluntary departure, s/he should be ready to leave the United States in no more than 119 days from the date of the order.

If the alien chooses to seek other relief in court and that relief is denied, the maximum amount of voluntary departure time the immigration judge can give is 60 days. The alien may pursue an appeal of the denial of the other relief and is entitled to remain in the United States during the pendency of that appeal. While the matter is on appeal before the Board of Immigration Appeals (BIA), the 60 day clock is stopped. However, it begins to run the day the BIA dismisses the appeal. At that point, if the alien elects to file a petition for review with the U.S. Court of Appeals, he must also file a motion to stay removal. However, the act of filing the petition for review vacates the voluntary departure grant and the alien then has a deportation order just as if he had never accepted voluntary departure in the first place.

If the alien fails to depart the United States during the period of voluntary departure, the order automatically becomes an order of removal (deportation). The judge does not need to issue any additional order. This is important for several reasons. An alien with a removal order is ineligible to apply for adjustment of status, change of status, suspension of deportation or cancellation of removal for five years for deportation cases or ten years under removal cases. Additionally, an alien who was granted voluntary departure and failed to leave during the requisite time is barred from relief for a period of ten years. These periods run concurrently (together).

If the alien acquires a new basis for a green card after the judge makes a decision on the case, the alien must file a motion to reopen the removal proceedings in order to apply for that relief. Filing such a motion vacates the voluntary departure grant. Therefore, if the motion is denied, the alien no longer has the ability to leave under voluntary departure.

If the alien leaves on his own after the period of voluntary departure has run, he is considered to have self-deported. He does not escape the negative consequences of failing to leave on time. He still incurs the ten year bar that a removal order carries. He may be able to obtain a waiver of that bar and return to the United States in less than ten years if he can show sufficient hardship. It is a difficult standard to meet.

Whether he leaves on time or after the expiration of the voluntary departure time period, he faces serious problems that will affect his ability to return to the United States. If he has been in unlawful status in the United States for a period of one year or more, once he leaves the United States, he incurs a ten year bar from returning. In order to apply for a waiver of that bar, he must show that his U.S. citizen or lawful permanent resident parent or spouse would suffer extreme hardship if he were not permitted to return. Children are not qualifying relatives for purposes of this waiver. (If he has been in unlawful status for more than six months but less than one year and leaves under court-ordered voluntary departure, he does not incur the three year bar.)

The strengths and weaknesses of cases and the effect of pursuing or accepting various forms of relief are matters that should be discussed in depth with a knowledgeable and experienced immigration attorney before making a decision or taking any action. As in most things, knowledge is power.

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Gender discrimination in citizenship law is unconstitutional, but court denies relief

The Immigration and Nationality Act provides the framework for acquiring U.S. citizenship at birth by a child born outside the United States when one parent is a U.S. citizen and the other a citizen of another nation. Under 8 U.S.C. § 1401(a)(7) (1958 ed.), which was then the governing law, in the case of married couples, the U.S. citizen parent must have 10 years physical presence in the United States prior to the child’s birth, “at least five of which were after attaining” age 14.
This rule is made applicable to unwed U.S.-citizen fathers by Section 1409(a), but not to unwed U.S.-citizen mothers. Under Section 1409(c) there is an exception for unwed U.S.-citizen mothers whose citizenship can be transmitted to a child born abroad if the mother has lived continuously in the United States for just one year prior to the child’s birth.
Jose Morales, a United States citizen, moved to the Dominican Republic 20 days short of his 19th birthday, therefore failing to satisfy the requirement of Section 1401(a)(7) that he had at least five years physical presence in the United States after attaining age 14. There he lived with a Dominican woman who gave birth to Morales-Santana. Jose Morales later married Morales-Santana’s mother. Morales-Santana came to the United States. In 2000, he was placed in removal proceedings based on several criminal convictions. Morales-Santana claimed he could not be deported because he was a U.S. citizen at birth based on the U.S. citizenship of his biological father Jose Morales. An Immigration Judge denied Morales-Santana’s citizenship claim and ordered him removed. He later moved to reopen the proceedings asserting that the Government’s refusal to recognize that he derived citizenship from his U.S.-citizen father violated the equal protection guarantee of the U.S. Constitution. The Board of Immigration Appeals denied the motion. The Court of Appeals for the Second Circuit reversed, holding that the differential treatment of unwed mothers and fathers was unconstitutional. The Court of Appeals further held that Morales-Santana derived citizenship through his father, just as he would were his mother the U.S. citizen.
On June 12, 2017, the U.S. Supreme Court held in Sessions v. Morales-Santana, No. 15-1191, that the difference in the residency requirement for unwed U.S. citizen fathers and mothers “violates the equal protection principle”. The Court said that Sections 1401 and 1409 “date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. . . Today, laws of this kind are subject to review under the heightened scrutiny that now attends ‘all gender-based classifications’” During the era when Section 1409 was enacted (1940), “two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a non-marital child.” §1409(a) and (c)’s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.” “Those disparate criteria . . . cannot withstand inspection under a Constitution that requires the Government to respect the equal dignity and stature of its male and female citizens.”
“While the equal protection infirmity in retaining a longer physical-presence requirement for unwed fathers than for unwed mothers is clear,” the Supreme Court held that it “is not equipped to grant the relief Morales-Santana seeks, i.e., extending to his father (and, derivatively, to him) the benefit of the one-year physical-presence term §1409(c) reserves for unwed mothers.” The court reasoned that “if §1409(c)’s one-year dispensation were extended to unwed citizen fathers, would it not be irrational to retain the longer term when the U. S.-citizen parent is married? Disadvantageous treatment of marital children in comparison to nonmarital children is scarcely a purpose one can sensibly attribute to Congress.” The Court suggested that “Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, as the Government suggests, §1401(a)(7)’s now-five- year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers.”
OBSERVATION: This was a “Pyrrhic victory” for Morales-Santana. He won the argument that the different residency requirements for unwed fathers and mothers denied equal protection of the laws, but lost the case because the court could not grant him U.S. citizenship that would have been a solid defense in his deportation proceedings.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: This email address is being protected from spambots. You need JavaScript enabled to view it.. Website: www.bileckilawgroup.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)

What's Up Atty 2017 06 14 Gender discrimination in citizenship law
973/5328

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‘A more inclusive National Day for Filipinos’

Both mainstream and social media were quick to point out President Rodrigo Duterte’s absence during the event that he was supposed to lead at the Rizal Park--- the celebration and commemoration of the 119th Independence Day of the Philippines.
President Duterte’s reason for not attending the most important event of the year for the nation is that he was “exhausted,” according to his foreign affairs secretary, Alan Cayetano. Secretary Cayetano stated that the president was exhausted and tired from his numerous visits to the military camps in different parts of the country.
News coming from the Philippines before this year’s Independence Day celebration focused on the Marawi siege. The siege was perpetrated by the extremist Maute Group which is reported to have links with the notorious ISIS. This led President Duterte to declare Martial Law in the entire Mindanao and Sulu area.
There was also the tragic event at the Resorts World Manila Casino that was initially reported as an ISIS-initiated attack but authorities were quick to counter the report by stating that a lone gunman, a former government employee with huge gambling debts was responsible for the attack.
It would have been very meaningful to see the president of the Philippines at the Rizal Park while the nation’s flag was being raised during the Independence Day celebration, especially after the tragic events of the last few weeks in the Philippines.
A national day celebration is foremost in the list of every nation’s holidays. It is a designated date wherein the nation takes time to remember and value the events and the heroes that led to their nationhood and sovereignty. This designated date of nationhood is often symbolized by the date of a nation’s independence, of becoming a republic, or it can also be a significant date for a patron saint or a leader who became the “father of the nation or country.”
Right after World War II, July 4 was the day marked as the national day in Philippine calendars. This date was in observance of the granting of Philippine Independence by the United States in 1946. The date was then changed to June 12 during the term of President Diosdado Macapagal to commemorate the declaration of independence and the raising of the Philippine flag (June 12, 1898) in Kawit, Cavite by General Emilio Aguinaldo who became the first president of the Philippine Republic.
Many Philippine historians question the validity of the June 12, 1898 date as a national day based on the reason that the Philippines continued to be a colony by the United States after Aguinaldo’s declaration (as Spain ceded the country to the U.S.).
It is also interesting to note that there is another Philippine Day celebration date that some Filipinos observed before 1946. Believe it or not, a good number of Filipinos in the Philippines (and also in the U.S.) observed their annual “National Day” celebration on Rizal Day (December 30).
Rizal Day commemorates the martyrdom of Dr. Jose Rizal in Bagumbayan (Luneta) where he was executed by firing squad on December 30, 1896.
Since June 12 is only a week from Dr. Rizal’s birthday June 19 (1861), I believe we should revisit the issue regarding the date of the celebration of Philippine Independence Day. June 12 is focused mainly on the historic Kawit flag-raising event in 1898. The Philippines needs to pick a date that is guided by and based from historic events that more people can identify with--- to make it more inclusive. The discussion of this issue is timely.
We can for example focus on the message of and lessons from historic events such as Rizal’s work in Dapitan so that Mindanao is also included, Lapu-lapu and the people of Mactan’s heroics in fighting the first Spanish attempt to colonize the Philippines, the founding of the La Liga Filipina, the Noli and Fili and the lessons that we should learn to eradicate our “social cancer,” the lessons learned by Rizal in his travels abroad, and other lessons that more Filipinos can identify with--- which will also help in developing a deeper understanding of “who we are as a people.”
The Philippines and the Filipino people need a common rallying spirit to move forward. And one way to have one is to have a National Day that many Filipinos can identify with.
Until next week.

Jojo Liangco is an attorney with the Law Offices of Amancio M. Liangco Jr. in San Francisco, California. His practice is in the areas of immigration, family law, personal injury, civil litigation, business law, bankruptcy, DUI cases, criminal defense and traffic court cases. Please send your comments to Jojo Liangco, c/o Law Offices of Amancio "Jojo" Liangco, 605 Market Street, Suite 605, San Francisco, CA 94105 or you can call him (415) 974-5336. You can also visit Jojo Liangco’s website at www.liangcolaw.com.

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