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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Extreme Vetting? Changes to the Screening of Visa Applicants

By Attorney Brittany M. Milliasseau

Earlier this year, President Trump issued a memorandum which directed the Secretary of State, the Attorney General, and the Secretary of Homeland Security to implement heightened screening and vetting of applications for visas and other immigration benefits. The memorandum explained the need for immediate implementation of additional heightened screening and vetting protocols and procedures in order to ensure the safety and security of the country. Particularly, the changes are aimed at keeping citizens safe from terrorist attacks and preventing entry into the United States of foreign nationals “who may aid, support, or commit violent, criminal, or terrorist acts.”
In response to this directive, the Department of State proposed the creation of a new immigration form titled DS-5535, Supplemental Questions for Visa Applicants. This form will require visa applicants to provide their travel history, including source of funding, for the last 15 years, employment and address history for the last 15 years, phone numbers and email addresses for the last five years, names and dates of birth for all siblings, children, and current and former spouses, among other specific information. Applicants will also be asked to recount the details of their travel history and provide supporting documentation. In addition, the form will also request applicants to provide their social media identifiers and handles for the last five years. While the Department of State has stated that this form will not be required for all visa applicants and will be focused on “populations warranting increased scrutiny” it is expected to impact approximately 65,000 visa applicants worldwide each year.
Critics of this new form argue that these requests for additional information will place an overwhelming burden on applicants and lead to unwarranted visa denials and potential misrepresentation findings. The Department of State has explained that failure to provide the requested information will not necessarily result in a visa denial “if the consular officer determines the applicant has provided a credible explanation why he or she cannot answer a question or provide requested supporting documentation, such that the consular officer is able to conclude that the applicant has provided adequate information to determine the applicant’s eligibility to receive the visa.” However, most applicants may have difficulty recalling specific information solicited in the application and may inadvertently answer questions on the forms incorrectly. Such mistakes could in turn lead to denial of the application and allegations of misrepresentation, which could ultimately lead to inadmissibility for future immigration benefits.
Further, critics of the new form are concerned about how the information obtained about social media platforms will be utilized. What specific information will officers use to determine visa eligibility after viewing an applicant’s social media profile? Will officers review the social media profiles of applicant’s friends and relatives? Will seemingly innocent and harmless communication between friends be misconstrued? Many of these questions remain unanswered.
The Office of Management and Budget recently approved the proposed rule and the Department of State has begun utilizing the supplemental questionnaire. While there remains uncertainty regarding the impact this new form will have on visa adjudication, it serves as a valuable reminder that individuals should be cautious when applying for both immigrant and non-immigrant visas. All visa applicants should consult with an experienced immigration attorney to determine their visa eligibility. In addition, applicants should utilize the services of a knowledgeable immigration attorney to assist in preparation and review of their visa application prior to submission to the Embassy or Consulate. As mentioned above, even a seemingly innocent mistake on a visa application could have dire consequences for visa applicants and even potentially lead to inadmissibility issues in the future. Any information provided to consular officers, or any immigration agency should be carefully prepared and reviewed by experienced counsel.
As these new vetting procedures become implemented, longer visa wait times, consular delays, and increased denials are projected. Individuals that are looking to apply for visas are encouraged to do so as early as possible in order to avoid delays. In addition, applicants should seek counsel to make sure their visa applications are prepared completely and accurately in order to curb preventable processing delays. While it is extremely important to be represented by competent immigration counsel for applications submitted to U.S. Citizenship and Immigration Services, it is equally as important to consult with immigration counsel regarding immigrant and nonimmigrant visa applications submitted to the Department of State and to speak with an immigration attorney for preparation prior to attending a consular interview.

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Help! I Overstayed My Visa!

By Attorney Anda C. Kwong & Nancy E. Miller

When the term “illegal immigrant” is used, some assume that the discussion is about someone who entered the United States without presenting themselves for inspection at the air, sea or land border.  However, “illegal immigrant” can also apply to one who entered legally but whose status has expired. In fact, more people become “illegal immigrants” by overstaying visas than by entering without documentation.  

Overstay means that a noncitizen violated the terms of the visa issued by remaining in the United States beyond the time permitted.  One who overstays her visa is out of status, meaning, she is now here illegally.  While overstaying a single day past the expiration of the visa is unlawful, overstaying becomes even more problematic when the noncitizen stays past 180 days but under one year because she then triggers a bar from returning to the United States for three years when she exits the country. This unlawful presence penalty increases to a ten-year bar when she leaves after overstaying by more than one year. 

Some immigration benefits require the alien to leave the United States to complete processing through the U.S. Consulate in their home country but because they have been here illegally, they invoke the bar as soon as they depart in order to pursue the benefit they seek.   A waiver of the bar is possible if one can prove that their U.S. citizen or lawful permanent resident parent or spouse - NOT child -  would suffer extreme hardship if they are not able to return.  

With the administration’s expressed intent to step up enforcement to cut down on the violation, there will be a greater focus on those who have overstayed their visas.  While fear of being arrested and deported is a reasonable and understandable response, noncitizens should remember that they do have due process rights. And even once one has been taken into custody, he may apply for immigration benefits if he is eligible for them.  

A noncitizen who is taken into custody by the Department of Homeland Security (DHS) can expect to be placed in removal proceedings by means of a Notice to Appear (NTA). The notice will set out the reasons why DHS believes the immigrant is ineligible to remain in the United States.  Either it or a second document called a Notice of Hearing will set forth when and where the immigrant’s hearing is to be held.  Failure to appear at a hearing in removal court can result in an in-absentia removal order.  That means that the alien is ordered removed without ever having appeared in court.  Exceptional circumstances beyond the alien’s control are the only acceptable reason for failure to appear.  And, unless the immigration court judge knows of those circumstances in advance, she will issue the in-absentia removal order.  In order to then have her day in court, the immigrant will have to timely file a motion to reopen the proceedings.  There is no guarantee that the motion will be granted.  It is up to the immigrant to prove that her reason for not appearing meets the legal requirements.  

In court, the United States government (DHS) is represented by an attorney from the Office of the Chief Counsel (OCC). The noncitizen has the right to be represented by an attorney at no cost to the government.  If he decides to represent himself, he is expected to comply with the appropriate legal and procedural requirements.  In court, the immigrant will be required to plead to the facts and charges contained in the NTA that assert why the alien should be removed.  Pleading means either admitting that they are true and legally appropriate or denying because they are factually inaccurate or legally wrong.  

If the judge sustains the charges (finds they are factually true and legally accurate), the alien will have the opportunity to apply for any relief for which he may be eligible.  He must file the appropriate applications and supporting evidence and present oral testimony to support the applications.  It is the alien’s burden to prove eligibility.  As is clear, this is a complicated and complex process.  

One should exercise his or her due process rights.  One should also apply for all benefits for which they are eligible.  But in order to do so, one must know what they are.  Therefore, anyone who is not in status should consult with an experienced and knowledgeable immigration lawyer to discuss their options.

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Filipino captures Hawaii GOP chairmanship

 Shirlene Ostrov

A Filipino, Shirlene De La Cruz Ostrov, who recently retired as a Colonel in the U.S. Air Force, captured the chairmanship of the Hawaii Republican Party (Grand Old Party or GOP) at a tumultuous convention on the island of Kauai on May 13.

Ostrov’s election is significant in a number of ways. She is the first Filipino to lead a state organization of one of the major political parties in America. 

She was fighting the entrenched establishment of the Republican Party in Hawaii who had put up an incumbent state legislator, Andria Tupola, as their candidate. As we told Ostrov, “if this were a beauty contest, you would win hands down.” She won 265 to 111 because of good strategists, like Miriam Hellreich, Republican National Committeewoman for Hawaii. They conducted a grass roots operation among the delegates. The majority of the GOP in Hawaii also wanted a person with proven leadership qualities and a vision for the party. More significantly, the GOP sought a leader who could attract non-Caucasians to join, especially the Filipinos who are the biggest non-white voting bloc in Hawaii. 

Shirlene’s only political experience was as a U.S. congressional candidate for the first district of Hawaii. She said that she ran against overwhelming odds because she did not want the election to be uncontested. As it turned out, she could not prevail against a well-known, well-funded, and union backed Democrat who had previously served in the House of Representatives – Colleen Hanabusa.

Shirlene Ostrov and some Filipino supporters L to r: Sam Sonson, Emmanuel S. Tipon, Shirlene de la Cruz Ostrov, Dr. Remedios Sonson, Miriam Hellreich, an unidentified Caucasian supporter, Ditas Guillermo Udani, and other supporters from the Big Island of Hawaii.

(Photo: Shirlene Ostrov and some Filipino supporters
L to r: Sam Sonson, Emmanuel S. Tipon, Shirlene de la Cruz Ostrov, Dr. Remedios Sonson, Miriam Hellreich, an unidentified Caucasian supporter, Ditas Guillermo Udani, and other supporters from the Big Island of Hawaii.)

OSTROV’S GOAL FOR GOP

The Hawaii Republican Party is the minority party in Hawaii. Ostrov said that she sought the chairmanship “because I want to help build our Party to become the true opposition party in this state. Now we’ve obviously got a steep hill to climb. With only five Republicans in the State House of Representatives and none in the Senate, we struggle to get our voices heard. And we aren’t represented in our Congressional Delegation, a daily tragedy for Hawaii with Republicans in control of the U.S. House and Senate, and the White House.

In an op-ed in the Honolulu Star Advertiser on May 4, Shirlene was quoted as saying: “The Hawaii Republican Party is not just the party of no, nor are we simply the party of tax cuts. I believe we’re the party of aloha and ohana. . .We are the party that wants to see every resident thrive so they can build their business, family and community without excessive government interference. That’s the future we see for Hawaii.”

Shirlene, who, since her retirement, has become a business executive, and a co-founder of a non-profit Hawaiian Cultural School in the National Capitol Region said: “I think Hawaii’s Republicans have an excellent opportunity to rebuild and offer voters a real choice.  My intent is pure and simple.  I don’t have a private agenda. I am not seeking fame or fortune, I am not pursuing other positions at this time.  I simply want to serve the party in a full-time manner to help the Republicans take their rightful place in Hawaii. 

Shirlene pointed out that “the most critical aspect of building a solid foundation is to get the party on a firm financial footing.  We are supposed to be a sharp contrast to the Democrats, offering viable, workable alternatives that energize the state’s residents to want our solutions and not continue with what we already know doesn’t work.  Our financial underpinning helps us speak our message broadly, and I know we are at a critical financial crossroads today.  In fact, I believe that this is one of the main reasons why the Hawaii Republican Party has been in decline for the last few years and it will be a primary area of focus for me as chairman.”

Immediately after her election as chairman, Shirlene went to Washington, D.C. to meet with Republican Party leaders and communicated with them her plans for the party in Hawaii. She said that they expressed their optimism and committed to providing support and resources to rebuild the local party.

Even the Honolulu Star Advertiser, a pro-Democrat newspaper, has taken notice of Shirlene. It published a ¾ page interview of Shirlene in its May 26 issue. And on May 16, the Start Advertiser published an editorial titled “Root for isle GOP to regain footing”. The editorial pointed out that “The state needs more individuals with distinct perspectives to enter the political conversation, holding power but not beholden to the entrenched leadership of the majority party. Long-term incumbency means public servants who worry too little about service to the electorate.” The editorial went on to state that “Ostrov, born and raised in Hawaii, is a retired Air Force colonel; leadership experience is a plus, even given her lack of elected office.” Unusual words of wisdom coming from the Star Advertiser. I might postpone cutting off my subscription.

Shirlene Ostrov and Emmanuel S. Tipon

(Photo: Shirlene Ostrov and Emmanuel S.Tipon)

ATTRACTING FILIPINOS TO THE REPUBLICAN PARTY

   Shirlene stressed that “Education and outreach in the community is key to our success as a party.  Not only will we increase transparency and accountability within party leadership, but sharing our points of view will attract more members from the growing ranks of disillusioned or disengaged Independents and Democrats looking for a conservative home.  We need those numbers in our party and their votes in the next election, votes that will come from the conservative cultures and people the Democrats have taken for granted.  Two districts out of 51 are Districts 28 and 29, the Kalihi and Palama areas. Those areas are 78% Filipino, and not only are they the largest voting bloc in Hawaii, they are also very, very conservative.  They are Democrats now, but they are starting to understand that their voting habits are clashing with their conservative culture.  Education in the community will attract people whose family values and cultural background align more naturally with the Republican Party, if they hear us talk with them regularly as we share our message.  With a diverse staff that starts with a broad range of ideas, we will articulate a message that covers the values and issues most people in our state care about and that the opposition isn’t even paying attention to.

PERSONAL AND FAMILY BACKGROUND

Shirlene’s father is from Batangas and her mother is from Bulacan. Her father joined the U.S. Navy in the Philippines, became a U.S. citizen in 1962 and settled in Hawaii. Shirlene was the fifth of 8 children (6 girls and 2 boys). Shirlene was born and raised in Mililani, among the pineapple fields of Central Oahu, Hawaii. She said that her parents raised a “very tight-knit Catholic, conservative and patriotic family” who taught their children “to defend the institutions and the virtues of character that make the pursuit of happiness possible.” Shirlene recalled that  “the kitchen table discussion revolved around the different ways to secure the blessings of liberty to ourselves and our posterity. It was an easy decision for me to serve my country in the United States Air Force.” 

She served for 23 years and retired as a Colonel.  As a seasoned Logistics Readiness Officer, she held command and staff positions at the U.S. Air Force and  

and Department of Defense. She served as the Commander of an Aircraft Maintenance Squadron, and as the Commander of an Air Mobility Squadron unit in the Pacific.  She  commanded the 376th Expeditionary Mission Support Group, providing air combat power projection throughout the CENTCOM Area of Responsibility, and also served as a hub for strategic airlift operations and as an intermediate staging base for transiting personnel and equipment in support of operations in Afghanistan. She served the U.S. State Department in support of the U.S. Special Envoy to Sudan and also served as the Legislative and Interagency Liaison for USTRANSCOM in Washington DC.  She likewise served as the Chief of the Global Combat Support Division at Headquarters, Pacific Air Forces.

 Among Shirlene’s military awards are the Legion of Merit, Bronze Star, Defense Superior Service Medal, Air Force Meritorious Service Medal, Joint Service Commendation Medal, and Air Force Outstanding Unit Award.

Shirlene earned a Bachelor’s Degree in Political Science from the University of Florida, an MBA in Management from Troy State University and a Masters of Arts in Organizational Management from George Washington University.  

She married her husband Mark Jacob Ostrov in 1990 and they have twin daughters, Jessica and Julia who are 16 years old.  

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Permanent Residence Still Possible After Petitioner’s Death

By Attorneys Devin Connolly & Nancy E. Miller

The death of a close family member is obviously a very difficult time in a person’s life. This is even more true when the death results in both the loss of a beloved family member and the loss of the potential to become a permanent resident status in the U.S. (Green card).  Under the Immigration and Nationality Act (INA), an approved visa petition is automatically revoked when the petitioner dies before the beneficiary is issued a green card.  The law is harsh but not absolute.  A person may still be able to get their green card despite the petitioner’s death. 

Section 204(l) of the INA allows people to still be granted their green cards if they are able to demonstrate that they meet certain eligibility criteria as stated in the INA.  In order to qualify under Section 204(l) of the INA, the immigrant beneficiary must have resided in the United States at the time of the petitioner’s death and must continue to reside in the U.S.  Prior to this important change, only certain widows and widowers who were petitioned by their U.S. citizen spouse were granted the opportunity to obtain permanent resident status after the death of the petitioner.  

The first issue that must be resolved surrounds the definition of “residence.”  As stated above, the beneficiary of the visa petition must actually reside in the U.S. at the time of their family member’s death.  They will not be eligible under INA 204(l) simply by being physically present in the U.S. on the exact day that their relative passed away.  Rather, it is required that they maintained a residence in the U.S. at the time of the petitioner’s death.  However, it is not required that they were physically present in the U.S. on the date of death.  Thus, an immigrant beneficiary may still be eligible for adjustment of status if they were actually abroad when the petitioner died, so long as they can establish that they were actually residing in the U.S. at the time of the petitioner’s death.  It is also important to note that the law does not require that they have lawful status in the U.S. at the time of death.  

There are also other requirements that must be established in addition to residence.  These including demonstrating that the beneficiary deserves a favorable exercise of discretion and that they have an acceptable substitute sponsor.  Finally, Section 204(l) of the INA may also provide immigration benefits for more people than just the beneficiary named on the petition.  It may also allow the named beneficiary’s spouse and children to be granted permanent resident status. 

In some instances, the deceased family member was also the only or primary qualifying relative for a needed waiver of a ground of inadmissibility.  Section 204(l) allows the beneficiary to continue to pursue the waiver with the deceased family member as the qualifying relative. 

Section 204(l) of the INA is clearly greatly beneficial to many people.  Unfortunately, though, not everyone qualifies.  For those beneficiaries who are not eligible to apply for adjustment of status under INA 204(l), they still have the opportunity to apply for “Humanitarian Reinstatement.”  

As stated earlier, the underlying petition is automatically revoked upon the death of the petitioner.  However, “Humanitarian Reinstatement” provides hope for those family members living abroad that waited patiently for their immigrant visa petition to become current.  A request for “Humanitarian Reinstatement” is a request that the petition be reinstated on humanitarian grounds.  If the request is granted, the beneficiary, and potentially his or her spouse and children, will be permitted to continue with the Immigrant Visa process and reunite with their remaining family members in the United States.  

The United States Department of State’s Foreign Affairs Manual provides a list of factors the USCIS should consider in evaluating requests for reinstatements.  These factors include, but are not limited to, whether there will be a disruption of an established family unit; any potential hardship to U.S. citizen or lawful permanent residents; if the beneficiary is elderly, has strong family ties to the U.S., or is in poor health with no home to go to, and whether there was an undue delay in the processing of the petition. 

The death of a loved one can devastate a family.  And, for some prospective immigrants, the death may also threaten to further tear apart the family unit.  But it is important to remember that immigrating to the U.S. may still be possible despite the death of your close family member.  Anyone who has lost a petitioning family member prior to obtaining their green card should consult a knowledgeable and experienced immigration attorney to find out whether they can still obtain lawful permanent residence.

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Is USCIS sitting on your immigration petition? Sue the @#$%^&* with a mandamus action

You have filed your immigration petition for your beautiful beloved with USCIS, but USCIS has been sitting on it. Rival suitors are knocking at your beloved’s door, saying “Your balikbayan lover is a fake. He has not filed a petition for you. It has been a year and you still have no news about it. Let us go out and have fun.”

Your beloved sends you the above Facebook message. What are you going to do? You are getting desperate. You cannot control the events happening abroad. What if your beloved succumbs to the temptation to go out with other suitors. What if ….. Patay kang bata ka

Here is what you can do. First, follow up the petition with USCIS. Second, make an appointment on InfoPass to talk to an immigration officer in person. Write to your U.S. Senator or congressman to help find out the status of your petition? (Unfortunately in Hawaii, not one of them is a Republican, so your guess is as good as mine as to what weight they carry). All that USCIS says is that your petition is under process. 

There is a book called “Sue the Bastards” by Gerard P. Fox. It analyzes the pros and cons of suing those who do you harm. After reading it, you feel like Hamlet – “To be or not to be.” (To sue or not to sue). If you really love your so-called “beloved” (wife or fiancée) and want to protect your interest, damn the cost and the problems of suing, just sue the USCIS for sitting on your immigration petition by using a mandamus action.

The term “mandamus” is a Latin word “we command”. “It is a writ or order that is issued from a court of superior jurisdiction that commands an inferior tribunal or individual to perform, or refrain from performing, a particular act, the performance or omission of which is required by law as an obligation.” The Free Dictionary by Farlex.

JURISDICTION

Under 28 U.S.C. §1361 “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the petitioner.”

This statute simply provides a forum for filing mandamus against an officer of the United States. However, it does not provide a legal ground for suing. The person suing, in this case the petitioner, must allege a legal basis for the suit and standing to bring it. 

The Administrative Procedure Act (APA) 5 U.S.C. §§ 551 et seq. provides a cause of action for the petitioner where the USCIS unreasonably delays the adjudication of a petition or application. “The APA requires federal administrative agencies to address matters presented to them within a reasonable time. 5 U.S.C. § 555(b) ("With due regard for the convenience and necessity of' the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. . . ."). The APA further states that federal courts "shall . . . compel agency action unlawfully withheld or unreasonably delayed. . . ." 5 U.S.C. § 706(1). Belegradek v. Gonzalez, 523 F. Supp. 2d 1364 (N.D. Georgia)

In Razaq v. Poulos, No. 06-2461-WDB, 2007 WL 61884, at *3 (N.D.Cal. Jan. 8, 2007), the court said: "We find that the USCIS has a mandatory duty to decide whether to grant or deny 1-130 Petitions. . . . While the substance of the decision whether to grant or deny a petition obviously is discretionary, the duty to process the application is just as obviously ministerial." Thus, while mandamus is available to compel a USCIS officer to act on a petition, it cannot compel the officer to act or decide in a particular way, that is, it cannot compel the officer to grant the petition.

WHAT CONSTITUTES UNREASONABLE DELAY

"[T]here is no bright line rule as to when a delay on an application slips into the realm of unreasonableness." Linville, 489 F.Supp.2d at 1282 (quoting Elmalky v. Upchurch, No. 3:06-CV-2359-B, 2007 WL 944330, at *6 (N.D.Tex. Mar. 28, 2007)). In determining whether the Attorney General unreasonably delayed in adjudicating an application to adjust immigration status, courts have applied a rule of reason, considering: (1) the source of the delay, (2) the complexity of the investigation, (3) whether any party participated in delaying the proceeding, (4) the nature and extent of the interests prejudiced by the delay, and (5) whether expediting action on agency activities will have an adverse affect on higher or competing priorities. See Linville, 489 F.Supp.2d at 1282-83; Razaq, 2007 WL 61884, at *6; Bartolini v. Ashcroft, 226 F.Supp.2d 350, 354 (D.Conn.2002).” Belegradek v. Gonzalez, 523 F.Supp. 2d 1364 (N.D. Georgia). 

ALLEGATIONS OF PETITION

Earlier this week, a Caucasian colleague asked us to assist in filing a petition for mandamus to compel USCIS to adjudicate an I-130 petition filed by an alien’s U.S. citizen spouse which had been pending in the USCIS for more than a year.

The petition has been filed alleging the following:

1. Introduction, nature, and purpose of the action.

2. Jurisdiction – U.S. District Court. See 28 U.S.C. § 1361 (mandamus statute), 28 U.S.C. § 1331 (federal question), 28 U.S.C § 2201 (declaratory judgment).

3. Venue (where to file petition) – any judicial district where respondent resides, or where petitioner resides, or where a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C § 1391(e). 

4. Parties – Petitioner is the person who filed the Visa Petition that has been unadjudicated. Respondents are: the Secretary of the Department of Homeland Security, the USCIS Director in Washington, D.C., the USCIS Director of the Service Center where petitioner filed the Visa Petition. Their office addresses should be provided.  

5. Cause of action and standing (a) clear legal right of the petitioner to the relief demanded, (b) clear legal and ministerial duty of the respondent to perform the act sought to be performed, See 5 U.S.C. §§ 551 et seq. (Administrative Procedure Act), (c) exhaustion of all other remedies available, (d) absence of any other remedy available, except mandamus, (e) irreparable injury to petitioner because of respondent’s unreasonable failure to act and perform a duty owed to petitioner.   

6.  Claim for attorney’s fees and costs pursuant to 28 U.S.C § 2412.

7.  Prayer for relief – request court to order respondent to process petition or application, to furnish petitioner with a copy of the order granting or denying the visa petition, to order respondents to pay attorney’s fees and costs, to award such other relief as may be just and proper. 

8. Verification of petition by petitioner.

Summons on respondents. In addition to serving the petition on the above-named respondents, service of the summons should also be made on the Office of the General Counsel, Department of Homeland Security, Washington, D.C. 20258. 

Filing requirements. Petitioner or his Counsel must read the Federal Rules of Civil Procedure and the U.S. District Court local rules.

Filing fee. There is a filing fee. Petitioner or his Counsel should check the amount with the District Court where he intends to file the petition.

COMMENT AND SUGGESTION: In a previous case where a District Director unreasonably refused to adjudicate an application for adjustment of status, we prepared a complaint for mandamus, naming him as one of the respondents, and showed the complaint to him. He asked for a week to review the complaint. In less than a week, the adjustment of status was granted. However, do not try to bluff a District Director that you are going to file a complaint, unless you know him well and unless you have a copy of the complaint to show to him, the filing fee in your hand, and your attorney’s fees paid by the client.  

(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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The politics of impeaching a president

We hear the word impeachment mentioned more frequently in both the United States and the Philippines these days although it is very remote at this time that the sitting presidents of both countries will be impeached. 

In March, an opposition lawmaker filed an impeachment complaint against President Rodrigo Duterte calling for the president’s removal from office citing high crimes, betrayal of public trust, and abuse of power as the basis for his impeachment complaint. 

The justice committee of the Lower House recently dismissed the impeachment charges against President Duterte for “insufficiency in substance” related to the president’s alleged role in the state-sponsored killings and the Davao Death Squad, as well as his administration’s alleged inaction to uphold the country’s sovereign rights over the West Philippine Sea, Panatag Shoal, and Benham Rise. 

For now, President Duterte will not be the subject of an impeachment trial unlike former president Joseph Estrada who was charged with plunder and perjury during an impeachment trial in the Philippine Senate in December 2000.  However, President Estrada was ousted from office in January of 2001 during a popular uprising in Metro Manila after his aborted impeachment trial.

Will President Duterte suffer the same fate?  

I doubt it.  Not at this time.  President Duterte enjoys strong support from lawmakers of both houses and if the social survey results are correct, it appears that he still holds a high trust rating among the people. 

But the rising death toll as a result of the extrajudicial killings going on in the Philippines will surely hurt his popularity later on.  Like the failed social experiments and painful experiences in Thailand and Colombia, the Filipino people will soon realize that mass killings simply do not work and that there are more creative and productive solutions in dealing with the drug menace without killing the poor, the voiceless, and the powerless.   

History has taught us that the rule of law is vital to progress and a country will not move forward without it because those in power will be the first ones who will engage in corruption and acts that are detrimental to the best interests of the nation if the rule of law is absent and missing.

The rule of law is the world’s best hope for building peaceful and prosperous societies according to former United Nations Secretary-General Ban Ki-Moon.  Even Philippine CJ Maria Lourdes Sereno spoke about the dangers of lawlessness and impunity which she said represents a breakdown in governance. 

I hope that President Duterte will find it alarming that 45 of the 47 members of the Human Rights Council expressed deep concerns about the human rights situation in the Philippines.  I hope also that he will listen to the Council’s call for his government to investigate the extrajudicial killings that have been going on since he took office and since his war on drugs started.  

  In President Donald Trump’s case, unlike President Duterte, his trust rating has been very low since he took office.  But like President Duterte, President Trump enjoys strong support from his Republican party mates and allies in both the House of Representatives and the Senate (unlike President Richard Nixon who resigned before the House could vote on the impeachment resolutions against him when his political support was completely eroding and collapsing and the Democrats enjoyed the majority vote on his impeachment).    

Many legal and constitutional experts assert though that the conduct of the U.S. president poses a danger to the nation’s democratic system of government. 

It is alleged that the firing of FBI Director James Comey obstructs the investigation on the claimed Russian connection and influence in the results of the 2016 presidential election--- and the taped conversation with former-director Comey they allege may be classified as a form of intimidation and obstruction of justice. 

Will a Trump impeachment complaint prosper?  Like in President Duterte’s case, impeaching President Trump is tough and remote for now--- but there is a stronger possibility after the 2018 mid-year election if the dominant party in Congress changes. 

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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Supreme Court Tacitly Allows New Limits on Aliens’ Rights

 

By Attorneys Lorella T. Hess & Nancy E. Miller

Most aliens in the United States are entitled to a hearing before an Immigration Judge if the government seeks to remove them, however those who entered the country illegally and have been here for a short time are subject to a process called expedited removal.  As its name indicates, the expedited removal process is designed to move quickly.  Usually the alien is not even able to consult an attorney and the final decision is made by an immigration officer during one interview.  

Last month, the U.S. Supreme Court decided not to review a case which raised questions about whether aliens caught up in the expedited removal process have certain constitutional rights.  In that case, Castro v. D.H.S., the U.S. Court of Appeals for the Third Circuit ruled that families in expedited removal proceedings, who had applied for asylum, could not seek habeus corpus petitions to challenge their detentions in court.  A writ of habeas corpus (Latin for “you have the body”) requires the government to bring a prisoner into court and justify the legal basis for his or her detention. 

Immigration law scholars and human rights organizations filing amicus (“friend of the court”) briefs argued that the Supreme Court should take up this case because the Third Circuit’s decision threatens the rights of many people already inside the United States.  There are two main reasons for concern.  First, serious flaws have been documented in how the expedited removal system actually operates.  Also, the scope of that system is being expanded by the Trump administration, which plans to apply expedited removal over a much wider geographic area and to include aliens who have been present in the United States for up to two years.

For well over a century the Supreme Court has held that “even aliens shall not be . . . deprived of life, liberty or property without due process of law.”  Constitutional due process protections—which include the right to a hearing—apply to “all persons” within the United States.  The only exception is that aliens arriving at a port of entry, even though they are in fact geographically inside this country, are subject to the legal fiction that they were stopped before the border and have not yet entered the U.S. 

The Third Circuit’s Castro ruling classified women and children apprehended several miles inside the United States (who had avoided a port of entry) under the legal fiction that they had not yet entered, and then also held that they did not have the right to challenge their detention with habeas corpus petitions.

Habeas corpus scholars submitted another amicus brief urging the Supreme Court to take up this case, arguing that the right to file a habeas corpus petition “turns on the extent to which the government exercises control of the petitioner’s person and not on [the petitioner’s] status as a citizen, noncitizen, or alien seeking asylum.”    

Indeed, the very same Supreme Court decision which established the legal fiction that, for due process purposes, an alien at a port of entry has not yet arrived in the United States, also acknowledged that such an alien “may by habeas corpus challenge the validity of his exclusion.”

However, because the Supreme Court did not agree to hear the Castro case, the Third Circuit’s holding stands and is binding throughout that circuit, which includes Delaware, New Jersey, and Pennsylvania.  

Other U.S. Courts of Appeals have ruled differently in the past, and their rulings remain binding within their circuits.  California is in the Ninth Circuit.  The most recent rulings from the Ninth Circuit on this issue affirm the entry fiction as traditionally understood, and safeguard constitutional protections for people who have crossed the border into the United States, even if they have done so illegally.

The Third Circuit’s ruling could affect those in other Circuits.  Recent arrivals apprehended in the Ninth Circuit could be moved to the Third Circuit and held in detention there, where they would be subject to Third Circuit law and thus unable to file habeas corpus petitions to challenge their detentions.  The asylum seekers in the Castro case were taken into custody in Texas (in the Fifth Circuit) before being moved to detention centers in Pennsylvania (in the Third Circuit). 

For this reason, it is important to try to prevent DHS from moving recent arrivals from the Ninth Circuit to a Circuit where the law is more harsh.  Legal  motions need to be filed to prevent such moves.  Those subject to expedited removal due to their recent arrival in the United States, or their loved ones, should immediately consult a knowledgeable and experienced immigration lawyer to determine what help is available for them.

 

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