What falsehoods in naturalization proceeding result in denaturalization?

By Emmanuel Samonte Tipon 

 

Chief Justice Roberts, during oral argument in a denaturalization case, noted that Question Number 22 of the Application for Naturalization asks: “Have you ever committed, assisted in committing, or attempted to commit, a crime or offense for which you were not arrested?” He then recalled that “Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone. . . I was not arrested. .  If I answer that question no, 20 years after I was naturalized as a citizen, you can knock on my door and say, guess what, you’re not an American citizen after all.”

The government lawyer replied: “First, that is how the government would interpret that, that it would require you to disclose those sorts of offenses.” 

Chief Justice Roberts riposted: “Oh, come on. You’re saying that on this form, you expect everyone to list every time in which they drove over the speed limit . . .” 

The government lawyer said: “If we can prove that you deliberately lied in answering that question, then yes. I think - - “

Justice Sotomayor asked if the “failure to disclose the use of a childhood nickname that is embarrassing, that has no relationship to anything whatsoever, could you prosecute that person?”

The government lawyer said that “there are a number of answers that could be given in the naturalization process that could be false and might seem to be, in isolation, immaterial, completely immaterial, for example. I mean, you could, you know, lie about your weight, let’s say. .. The point, though, is, Congress specifically attended to all false statements under oath in these types of proceedings. It has specifically provided that it is a crime to lie under oath in the naturalization process, even about an immaterial matter, and it has provided that certain of those immaterial lies are categorical bars to naturalization.” 

Justice Kagan: “I am a little bit horrified to know that every time I lie about my weight, it has those kinds of consequences.” Maslenjak v. United States, No. 16-309 SC 04/26/2017. Transcript of oral argument at 27-36.  https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/16-309_b97c.pdf 

Anyone who listened to the oral argument on April 26, 2017 could have predicted the decision of the Supreme Court – not every lie will result in denaturalization. 

In a rare display of unanimity, on June 22, 2017, the Supreme Court said: “A federal statute, 18 U.S.C. § 1425(a), makes it a crime to “knowingly procure [ ] contrary to law, the naturalization of any person.” And when someone is convicted under § 1425(a) of unlawfully procuring her own naturalization, her citizenship is automatically revoked. See 8 U.S.C. § 1451(e). In this case we consider what the Government must prove to obtain such a conviction. We hold that the Government must establish that an illegal act by the defendant played some role in her acquisition of citizenship. When the illegal act is a false statement, that means demonstrating that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts warranting that result.” Maslenjak v. United States, No. 16-309 SC 06/22/2017. https://www.supremecourt.gov/opinions/16pdf/16-309_h31i.pdf  

The petitioner Divna Maslenjak is an ethnic Serb who resided in Bosnia. During an interview in connection with her application for refugee status in the United States, she said that her husband evaded service in the Bosnian Serb army by absconding to Serbia. American officials granted them refugee status. Later she applied for naturalization. In her application, she swore that she had never given false information to a government official while applying for an immigration benefit or lied to an official to gain entry into the United States. Maslenjak was naturalized as a U.S. citizen. It was later discovered that Maslenjak knew all along that her husband served in the Bosnian Serb Army. 

The government charged Maslenjak with knowingly procuring contrary to law her naturalization in violation of 18 U.S.C. §1425(a)  because in the course of procuring her naturalization she broke another law, 18 U.S.C. § 1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding.

At Maslenjak’s criminal trial, the District Court instructed the jury that to secure a conviction under § 1425(a), the Government need not prove that Maslenjak’s false statements were material to, or influenced, the decision to approve her citizenship application. She was convicted. The Court of Appeals for the 6th  Circuit affirmed her conviction, holding that if Maslenjak made false statements violating § 1015(a) and procured naturalization, then she also violated §1425(a). 

The Supreme Court reversed and remanded the case, saying “To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” 

“If the facts the defendant misrepresented are themselves disqualifying, the jury can make quick work of that inquiry. In such a case, there is an obvious causal link between the defendant’s lie and the procurement of citizenship. . . In short, when the defendant misrepresents facts that the law deems incompatible with citizenship, her lie must have played a role in her naturalization.” But  “even if the true facts lying behind a false statement would not ‘in and of themselves justify denial of citizenship,’ they could have ‘led to the discovery of other facts which would’ do so.” Thus “a person whose lies throw investigators off a trail leading to disqualifying facts gets her citizenship by means of those lies – no less than if she had denied the damning facts at the very end of the trail.” 

The Supreme Court noted that § 1425(a) clearly imports some kind of “causal or means-end” relation, but left that relation’s precise character unspecified. The Supreme Court pointed out that “Qualification for citizenship is a complete defense to a prosecution brought under § 1425(a).”  Maslenjak was not convicted by a properly instructed jury of procuring, contrary to law, her naturalization, since the jury was told that it could convict based on any false statement in the naturalization process, that is, any violation of § 1015(a), no matter how inconsequential to the ultimate decision, although as the Supreme Court had shown the jury needed to find more than an unlawful false statement.

Comment: For more information on this issue, see the annotation: What constitutes concealment of material facts or willful misrepresentation warranting revocation of naturalization under § 340 of Immigration and Nationality Act of 1952 (8 U.S.C.A. § 1451). 77 ALR Fed 379. 

 (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, and lived during the war in Magsingal, Ilocos Sur, 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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Know Your Rights in Case of ICE Arrest

By Atty. Lou Tancinco

At the recently concluded American Immigration Lawyers Association conference held at New Orleans, representatives from the Immigration and Customs Enforcement indicated the lack of detention centers and beds. It was mentioned several times, that Trump’s policy on interior enforcement is being executed and they expect increase in apprehension.
If a non-U.S. citizen who is without legal status is arrested by ICE agent, what steps may be taken? What rights if any do they have at the time of arrest?
Below are the “Know Your Rights” information being disseminated by Immigration Legal Resource Center and certain non-profit organizations, which may be asserted if the inescapable ICE visit or arrest takes place.

You have the right to remain silent.
You can assert your fifth amendment right. You can refuse to speak to an ICE agent. Do not answer any questions, especially about your birth place, immigration status or how you entered the United States. Say that you want to remain silent until you speak with a lawyer.

You have the right to demand a warrant before letting anyone into your home.
The ICE agent may not enter your home without a warrant. You do not have to give permission for him to enter. It is okay not to open your door unless the agent shows you the warrant. If the warrant is presented to you, ask the agent to slip it under the door or through the window. Make sure it is signed by a judge with your correct name, address and date of birth.

You have the right to speak to a lawyer and the right to make a phone call.
It is important to have your attorney’s phone number handy. You will be entitled to make a phone call. If you do not know your attorney’s number, call a trusted friend or relative to coordinate with your attorney.

You have the right to refuse to sign anything before you talk to a lawyer.
There will be some documents that will be presented to you for signing after you are apprehended and taken into custody. Do not sign anything. If you sign without understanding the nature of the document, it is possible that you are signing a waiver of your rights to a lawyer or to a hearing. And if you waive these rights, it may result in your immediate removal without a hearing.

You have the right to refuse to show any documents before speaking with a lawyer.
When you are visited by an ICE agent, you do not have to give permission to search any of your belongings unless there is a warrant. You can ask to speak with a lawyer before you submit any documentation. Each case of an unauthorized individual is distinct and all non-U.S. citizens must be vigilant about their rights. During these challenging times, a legal advice from a professional immigration attorney becomes indispensable to figure out what legal options may still be available.

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When hope fights back amid conflict in Marawi

By Jayeel Serrano Cornelio

Fear is terrorism's greatest asset. Its workmanship is the disruption of everyday life. Only through disruption can terrorism achieve its ultimate end, whether religious, political, or economic.
Not everyone can of course take up arms to fight back. And so there are those for whom fighting back takes on a different form.
Consider the Young Moro Professionals Network. Its members have released a public statement that not only denounces atrocities carried out in the name of Islam. They are convinced that the values of Islam are "justice, care for humanity, mercy and compassion, and religious tolerance."
To them these virtues run counter to the acts of violence against the people of Marawi. They are thus inspired by how "Muslims and non-Muslims [are] protecting and helping each other during this crisis."
Along similar lines, the Moro Islamic Liberation Front (MILF) has fully supported the fatwaof mufti Sheik Abehuraira Abdulrahman Udasan "against the entry and spread of violent radicalism or extremism." MILF, the government's partner in the Bangsamoro peace process, believes that religious violence "has no basis in any of the teachings of Islam."
Countering radicalization
The statements above matter if only to correct the radicalization that affects even many young people in Mindanao. Radicalization is the process in which violence against other people becomes a religiously justified act. There are many pathways to radicalization but religious ideas are quite powerful in shaping a person's cognitive and emotional commitment to violence. Training them for battle and socializing them into a violent worldview explains why the Maute Group has deliberately recruited children to become their soldiers.
These statements are, at the same time, important for everybody else. Public perception of Islam is divided as to whether it is responsible for the spread of religious violence. In fact, I have met a few otherwise nice people who harbor ill-informed views about Islam and its followers. To them all Muslims have the propensity to be violent because violence is inherent to Islam. They do not realize that Islam, which means submission, and salam, which means peace, are linguistically related to each other.
In a sense then, surrendering to the will of God brings about peace. This is why the violence many of us associate with Islam is in fact anomalous theologically and empirically.

Redemptive hope
Alongside these powerful statements are inspiring moments that render undeniable hope in the midst of crisis.
When I arrived at MSU-IIT last month, the first ones I met were sociology students from the Marawi campus of Mindanao State University. Many of the students in Marawi are Muslim. The ones I met were in the college dean's office to defend their undergraduate theses. This was, to them, their own way of fighting back and their professors, some of whom are my friends, were not going to let them down. They were all in Iligan to see them through it all.
Let me tell too the story of a DSWD [Department of Social Welfare and Development] coordinator in one of the evacuation centers in Iligan. A Maranao, she oversees its daily operations. She has admitted to me that she, herself, is among the internally displaced. Some relatives have taken her and two of her children in. But two others have been separated from her because there is simply not enough space. She is no longer sure about the condition of her house in Marawi. In spite of all these uncertainties, she has chosen to devote her time to help other evacuees. And she remains upbeat about the future.
Finally, we have Mubarak Macabanding Paingco. He is the first Muslim to graduate summa cum laude – and the only one at MSU-IIT. He is this year's valedictorian. During his valedictory address, he recounted his moving story about losing his mother at an early age. That he was holding back his tears made it difficult for him to finish his speech. He dedicated it to her and those who have been affected by the conflict in Marawi. Many of IIT's students and staff are Maranao.
There are certainly many other hopeful stories. But the parallelism is striking. Violence may have become the new normal but people are not letting it get in the way of their lives.
Fighting back
In the hostel where I am staying for the duration of my visiting professorship at MSU-IIT, I interacted with a young Maranao couple who evacuated from Marawi. They say in the strongest terms possible what I have also heard from other Maranao friends: Ipinahihiya ng Maute ang dangal naming lahat. (The Mautes are a disgrace to our dignity.)
But they are still full of hope about the future of their young family. This again shows how people are fighting back.
Hope in this light redeems not just the future but the present too.
In other words, foresight grounded in present reality can be empowering. It believes that people can fight back. The sociologist Les Back describes it in this manner: "Hope is not a destination; it is perhaps an improvisation with a future not yet realized."
Hope therefore is not just a fantasy. But it does not on its own spring eternal. To hope is a conscious effort among people of goodwill.
And because some people have already chosen goodwill, hope, we shall see, will stand the test of time.
The least that the rest of us could offer them, apart from our donations, is to believe in them. – Rappler.com
Jayeel Serrano Cornelio, PhD is a visiting professor at the Department of Sociology at MSU-IIT. The National Academy of Science and Technology has named him the 2017 Outstanding Young Scientist in the field of sociology. Follow him on Twitter @jayeel_cornelio.

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Pacquiao is the ‘bigger winner’  

There’s been a lot of grumbling, grumping, and complaining after welterweight Jeff Horn was declared the winner over sweet-science icon Manny Pacquiao in their World Boxing Organization championship bout in Brisbane.
The blame game and the sour-graping should stop.
Stop bullying Jeff Horn as well and cease calling his victory a product of “lutong-macao.” Pacquiao lost the boxing decision but in losing, he became the bigger winner than Horn after their fight.
Pacquiao the legendary sports hero brought pride to the Philippines in the past because of his boxing accomplishments. His ring exploits led to fame that allowed him to dabble in politics and professional basketball as a player-coach in the Philippine Basketball Association.
His being in politics makes it obvious why there are many Filipinos who did not feel sorry for him when he lost last week.
The Manny Pacquiao of years ago was a focused professional boxer. Bob Arum, Pacquiao’s promoter, said the following after his defeat: “I think you cannot spend so much time as a senator and expect to be a world-class fighter.” Freddie Roach, his long-time coach and trainer shared Arum’s sentiments. “I’m gonna have a long talk with him about that. Because I think maybe being a senator, being a fighter, both is maybe too much,” he quipped.
It’s not only “a loss” for boxing and boxing fans. The best interests of Pacquiao’s constituents in the Philippines are also affected because of Pacquiao’s “part-time job” as a boxer (Or is it the other way around?).
Before running for a senate seat, Pacquiao made statements that he would quit boxing once he was elected senator because he was criticized for his numerous absences and no-shows during his stint in the lower house. In the senate, he became a disappointment to many who supported him and who viewed him as a champion of the underdog and the powerless because of his controversial and unpopular positions including his anti-gay, anti-reproductive health, pro-EJK, and pro-death penalty stand, not to mention his support for the Duterte administration’s war on drugs.
Then he took this last fight against Horn after an earlier announcement that there was an offer to fight in the Middle East.
Boxing is a form of entertainment to those who can stand watching two athletes beat each other up in the name of athletic competition. Despite the fact that the sanctioning World Boxing Organization had Horn as their top contender, ESPN’s boxing ranking does not have Horn on the top seven of the world’s best welterweights. After Horn won over Pacquiao, I checked ESPN’s ranking and again Horn is only listed as a ninth-ranked welterweight. Was this the reason why the match was not on pay-per-view in the U.S.?
To Horn’s credit, he turned out to be a tough boxer who refused to go down despite being outboxed and outpunched by Pacquiao, the aging-veteran. A victory over Horn would not have added a star to Pacquiao’s fabled boxing record and reputation because he was expected to win over Horn anyway. The Australian boxer has not faced any opponent of Pacquiao’s caliber and experience in his 17 fights as a professional.
But the judges saw it differently. For Pacquiao’s diehard fans and followers, why whine and complain? The controversial defeat was actually a blessing for him if he decides not to retire. People want to see an “injustice corrected” and there is a reported rematch clause with Horn.
If Pacquiao does not retire and decides not to fight a top-ranked welterweight like Kell Brook, Adrien Broner, Keith Thurman, Danny Garcia, Shawn Porter, Errol Spence Jr., or a heralded light-welterweight like Terence Crawford, Victor Postol, and Julius Indongo, then he has the second meeting with Jeff Horn. Nothing can be sweeter than having your cake and eating it too. Pacquiao and Horn meet again and boxing as a sporting game continues after suffering another black eye.
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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Supreme Court tightens requirements to revoke citizenship

By Attorneys Anda Kwong and Nancy Miller

Since Independence Day on July 4, 1776, our nation has seen remarkable progress in the arts, science and technology, and society. Much of this progress has been possible thanks to immigrants—including those who have naturalized to become U.S. citizens. The United States has set standards for the naturalization process. Generally, one must be a permanent resident for at least five years, be over the age of 18, be a person of good moral character; have continuous residency for at least half of the previous five years; meet physical presence requirements; be able to read, write, and speak basic English; have a basic understanding of U.S. history and government; and demonstrate an attachment to the principles and ideals of the U.S. Constitution. For those who meet the requirements and are approved, the Oath Ceremony is one of the proudest moments of their lives.

Rarely discussed, however, is just how many people have been stripped of citizenship. The truth is that denaturalization is not common, but may occur in limited circumstances. On June 22, 2017, the Supreme Court of the United States issued a decision that made it more difficult to strip someone of citizenship through the criminal proceedings.

In Maslenjak v. United States, the Supreme Court held that the Government must establish that a defendant’s illegal act played some role in the acquisition of citizenship in order to convict under the federal statute which makes it a crime to “knowingly procure, contrary to law, the naturalization of any person.” In this case, the criminal defendant told an American immigration official that her family feared persecution in Bosnia from both parties of the civil war. More specifically, she stated that Muslims would mistreat the family because of their ethnicity, and the Serbs would abuse them because her spouse had evaded serving in the Bosnian Serb Army by hiding for five years. In 2000, after being granted refugee status, the family immigrated to the United States. In 2006, the defendant applied for citizenship, swearing under Oath that she had never given false or misleading information while applying for an immigration benefit. The U.S. government subsequently confronted her husband with records showing that he had in fact served as an officer in the Bosnian Serb Army during a brigade that participated in the Srebrenica massacre. When the defendant attempted to prevent her husband’s deportation, she admitted that she knew the truth all along. Because she gave a false statement, the Government attempted to convict and denaturalize her.

Although both the U.S. District Court and the U.S. Court of Appeals found in favor of the Government, the Supreme Court clarified that in order to be convicted under this particular statute, the Government must establish that the illegal act played a role in the acquisition of citizenship. As an example, the Court analogized that if a painting was obtained illegally, one might imagine the wrong things done to obtain it illegally, such stealing it or paying for it with a fraudulent check. The Court contrasted that “if no illegal act contributed at all to getting the painting, then the painting would not have been gotten illegally.” As it pertains to naturalization, an example would be how one requirement to be eligible for citizenship is to be physically present in the United States for at least half of five years. If the lie was about the amount of time spent inside and outside the country, and the citizenship was granted based on that lie, then it would be appropriate to convict someone under this statute. To a further extent, a jury would have to decide if a false statement sufficiently influenced how a reasonable government official would grant citizenship.

The impact of this decision is that a misrepresentation must be material to the grant of citizenship. It means that those who misspoke on a naturalization application or at the interview may still be able to keep their citizenship. It also means that those who misspoke during the process of obtaining asylum or permanent residency or other benefits may still be able to become citizens. In many instances, our immigration laws favor giving a second chance to one who has made a mistake. This decision strengthens those values. Anyone who has been afraid to seek naturalization, or who, having obtained it, lives in fear of losing it, because of a past misrepresentation should consult with a knowledgeable and experienced immigration lawyer to see if this decision frees the way for them to obtain or keep their U.S. citizenship.

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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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