Immigration

MAJOR CHANGES IN IMMIGRATION LAW PROPOSED BY THE SENATE

If you’ve watched the news, browsed a media website, perused a newspaper, or scrolled through social media newsfeeds in the last few days, chances are that you’ve heard about a new immigration bill recently introduced to Congress. If so far you haven’t paid too much attention to the proposals and nuances of the bill, it is now the time to listen and take appropriate action as the potential legislation could seriously impact you and your noncitizen friends and family members.
On Wednesday, August 2, President Trump appeared at the White House along with two U.S. senators to reveal the “Reforming American Immigration for a Strong Economy Act,” or the “RAISE” Act. The Act, which is aimed at reducing legal immigration by 50% within the next ten years, proposes significant cuts to family-based immigration and the refugee program. In addition, the Act seeks to implement a skills/merit-based point system for employment-based immigration.
In regards to family-based immigration, the proposed legislation eliminates all family-based immigration categories except for spouses and minor children of U.S. citizens and lawful permanent residents. Currently, as the law stands, U.S. citizens may petition their noncitizen spouses, parents (if the U.S. citizen is over 21 years old), and children under the age of 21 as immediate relatives, providing the noncitizen with immediate visa availability. U.S. citizens may also petition their siblings as “non-immediate” relatives who are subject to limited visa availability. The law also currently allows U.S. citizens and lawful permanent residents to petition their adult children. However, under the proposed regulation, adult U.S. citizens would no longer be able to petition their noncitizen parents or siblings for a green card. Further, U.S. citizens would no longer be permitted to petition their adult children and lawful permanent residents would no longer be permitted to sponsor their unmarried adult children. It should be noted that while the bill restricts adult U.S. citizens from petitioning their parents, it does create a nonimmigrant classification for parents of U.S. citizens which is rather restrictive. Parents of U.S. citizens would not be eligible for work authorization or public benefits and their adult child would be responsible for arranging for health insurance coverage prior to visa issuance.
While it is uncertain whether this proposed legislation will actually become law, the clock on various avenues for immigrating family is ticking. U.S. citizens and lawful permanent residents who want to bring their adult children, siblings, or parents to the U.S. should act now. Those who are eligible to naturalize should do so in order to be able to bring family
members here while they still can. Don’t delay - consult with an experienced and knowledgeable immigration attorney as soon as possible to discuss family-based immigration options which may no longer be available in the near future.
The allocation of the 140,000 employment-based green cards issued annually was also addressed in the recent immigration bill. If the RAISE Act passes, the current employment-based immigration categories will be replaced with a skills/merit-based system whereby applications will be evaluated and ranked pursuant to a number of factors including English language proficiency, age, educational level, investment in a commercial U.S. enterprise, and achievements such as an Olympic medal or Nobel Prize. If you believe you may be qualified for an employment-based petition such as a petition for an individual of extraordinary ability, multinational manager/executive, or an outstanding professor/researcher, you or your employer should consult with competent immigration counsel to discuss your options before a highly competitive merit-based system is implemented.
Some additional changes outlined in the RAISE Act include the total elimination of the Diversity Immigrant Visa Program, or the “green card lottery” which currently awards 50,000 green cards to noncitizens from countries with low rates of immigration, as well as the reduction of the number of refugees admitted to the U.S. to 50,000 per year.
If the RAISE Act is passed by Congress, the President has indicated he will sign it. It will become law. If it does not, the bill gives a clear indication of what Congress intends for the future of immigration in the United States. In the past, when immigration laws changed, the old law was “grandfathered” to allow those who had filed before the change to still take advantage of the old law. There is no reason to believe that will not still be the case. But to be grandfathered, you have to have an existing petition. Anyone who has any interest in reuniting their family in the U.S. or who is thinking of immigrating through employment should contact a knowledgeable and experienced immigration lawyer now. The clock is ticking.

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‘Faulty premises’

President Rodrigo Duterte signed into law last week the senate bill that grants full government tuition subsidy in Philippine state universities and colleges. In the United States, President Donald Trump endorsed an immigration bill that proposes to slash legal immigration by half.
This immigration bill if it becomes law will limit the number visas based on family-petitions and will favor immigrants who are English speakers and have advanced degrees.
How will this affect Filipinos who want to immigrate or plan to come to the U.S.?
First let’s talk about some history here. If we look at Filipino migration in America, the Immigration and Nationality Act of 1965 can be considered as the booster responsible for the “great leap” as it terminated organized Filipino labor importation that was prevalent during the American occupation of the Philippines.
The Act also put a stop on the restrictive national origins system which was originally passed in 1924. In the year 1934, a quota and preference system was also established for Filipinos when the Philippines became an American commonwealth after the Tydings-McDuffie Act was approved by the U.S. Congress.
It was the 1965 immigration act that allowed for a new and different wave of Filipino immigrants to come to the U.S. There was an influx of immigrants who had college and professional-level education which also saw the increase in family-based immigrant petitions (family-reunification petitions) later on.
The “manong generation” of immigrants was replaced by the arrival of more Filipino college graduates and professionals with their families unlike the manongs who entered the U.S. and immigrated as young bachelors many years earlier to work in farms and in canneries.
Now that President Duterte has signed the free-tuition bill into law, would there be more college graduates entering the labor force not only in the Philippines but also overseas (including the United States)? Will President Trump’s endorsed immigration legislation be good for Filipinos?
The proposed immigration legislation does not really address the broken immigration system of the country--- more so the economic challenges that the U.S. is facing. The bill appears to cater to the demand of Trump supporters who believe that immigrants take away jobs and are responsible for keeping wages low in the U.S.
President Trump and his supporters are not really thinking of Filipino college graduates entering the labor market as there will be a “point-system” in the proposed immigration bill’s employment-based visas. It is practical to note that employment-based visas are often filled easily and gone or taken fast. Plus, how much workers can the U.S. labor market take? A lot of American jobs have already been outsourced.
What is disappointing not only for Filipinos but for other immigrant communities as well is the proposal to slash the number of legal immigrants to be admitted under the family reunification process. This proposal is contrary to the intention and the spirit of the 1965 Act which enhanced a dual-chain system of immigration--- a family reunification (or “relative-selective”) and an employment-based (or “occupational migration”) component.
Going back to the free tuition law that President Duterte signed, I wonder what will be the law’s impact on state universities and colleges. Is it really important to produce more college graduates compared to the need to channel more resources to improve the quality of higher education in many state-run universities and colleges (and the quality of elementary and high school education in public schools for that matter)?
President Duterte’s economic managers have already voiced their concern and opposition to the law and many say that this law does not really help the poor gain access to college education.
As for President Trump and the proposed legislation on immigration that he supports, it appears to be another attempt to energize his supporters.
Both the signed bill in the Philippines and the proposed immigration legislation in the U.S. have faulty premises but as we often see in politics and government action, many laws that are passed appear to be good on the surface but a closer examination reveal otherwise.
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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Attacking Premarital Agreements

There are several ways aprenuptial agreement can be attacked and found invalid. A premarital agreementis unenforceable if a party against whom enforcement is sought proves either ofthe following: (1) consent was involuntary; (2) the agreement was unconscionable.

I have a client that wasnot represented by an attorney at the time she signed the agreement and neededan Italian translator. She is conversational in English but due to the legalterms used in the agreement should have had a translator provided. In fact, shedid request that the documents be provided to her in Italian too—but was neverprovided to her.

The court will stronglyscrutinize the facts on a case-by-case basis factors that the judge will revieware if a party is not provided a fair, reasonable, and full disclosure of theproperty or financial obligations of the other party. That the party did notvoluntarily and expressly waive, in writing, any right to disclosure of theproperty or financial obligations and could not have reasonably obtainedadequate knowledge of that information.

The issue of whether anagreement is unconscionable is a decided as a matter of law by the court. The court must find on the record and or in writing all of the following:(1) party was represented by an independent legal counsel at the time ofsigning the agreement or after being advised to seek an attorney, expresslywaived, in writing, representation. (2) party had less than 7 calendar daysbetween the time that the party was first presented with the agreement andadvised to seek representation and the time it was signed (3) if unrepresented,the party was fully informed of the terms of the agreement (4) agreement notexecuted under duress, fraud, or undue influence, and the parties did not lackcapacity to enter into an agreement (5) and any other factors the court deemsrelevant.

Independent legal counselare recommended by the court in drafting a prenuptial agreement since theparties’ interests are often adverse.  Due to the nature of the relations,there may be certain situations in which it is critical. For example, when oneof the future spouses is considerably wealthier than the other, or when onlyspouse waives his or her rights to an elective share.

An agreement isunenforceable if not voluntary or the result of duress (Uniform Premarital AndMarital Agreements Act, Section (9)(a)(1). Evidence of lack of capacity,duress, fraud, and undue influence as demonstrated by a number of factors areprobative in proving involuntariness (In re Marriage of Bonds, 24 Cal.4th1 (2000) Adequate legal representation will often be the best evidence that aspouse signed a premarital agreement knowledgeably and voluntarily.

A court may refuse toenforce a term of a premarital agreement if in the context of the agreementtaken as a whole (1) a term was unconscionable at the time of signing; (2)enforcement of the term would result in substantial hardship for a partybecause of a material change in circumstances arising after the agreement wassigned (Uniform Premarital and Marital Agreements Act, Section 9 (f))

The hearing requestinginvaliding a prenuptial agreement is a complex matter and highly contested. Beprepared, this hearing will require a great deal of legal work. Any comments,feel free to call my office at 310-601-7144 or email me at This email address is being protected from spambots. You need JavaScript enabled to view it.

This originally appeared in : 

http://attycastaneda.com/attacking-premarital-agreements-2/

 
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The colors of August

August is a rainy month in the Philippines. Many typhoons pass through the archipelago every year after the start of the rainy season in July.
The month of August is also significant because of the important events that took place during the said month that are a big part of our history.
The rains of August are heaven sent to some, particularly to the rice farmers in the rural countryside who need abundant water supply and irrigation to plant rice. In the cities and urban areas however, there is anxiety when the rains come because of the anticipated floods and heavy traffic particularly in Metro Manila.
In the history of the Philippines, two turning points or events that we can call “game-changers” happened during the month of August.
First, there is the “Cry of Pugadlawin” (also called or referred to as the “Cry of Balintawak”) that took place on August 23, 1896 when the forces of the revolutionary Katipunan led by Andres Bonifacio gathered to declare the Filipino people’s war of resistance against Spanish colonialism. Bonifacio and his followers tore their “cedulas” (residence certificates) and vowed to fight for the freedom and independence.
Almost three years after that historic cry in Pugadlawin, on January 23, 1899, the First Philippine Republic was established under the leadership and presidency of General Emilio F. Aguinaldo in Malolos, Bulacan.
Let’s now fast forward to 1983 for the second game-changing event. On August 21, 1983, Sen. Benigno Aquino Jr. who was the leading opposition leader against the Marcos Regime was gunned down at the airport tarmac in Manila after returning home from the U.S.
Although there was already an underground revolutionary movement and an armed resistance against Marcos led by the Communist Party of the Philippines, Sen. Aquino’s assassination triggered a national uproar that awakened many passive Filipinos to join the fight against the dictatorship.
The resulting battle cry, “Justice for Aquino Justice for All,” represented not only the struggles of the poor and the oppressed working class but also the will of the elite and the upper class to get rid of the Marcos dictatorship. The movement against Marcos also led to the recognition of new heroes who gave up their lives earlier on for the cause of liberation (among them were student leader Edgar Jopson, Macli-ing Dulag of the Cordilleras, Dr. Bobby dela Paz in the Visayas, and many others whose names are now in the Bantayog Ng Mga Bayani).
Almost three years after Sen. Aquino’s assassination, in February 1986, the fight to end the Marcos regime reached its peak when the EDSA People Power Revolution resulted in the ouster of President Ferdinand Marcos who fled to Hawaii with the assistance of the U.S.
Before Sen. Aquino’s assassination, the dominant color of the protest movement against Marcos was “red” following the tradition and colors of the Katipunan and the Communist Party of the Philippines. After of Sen. Aquino’s death, yellow became the dominant color of the above-ground resistance and the street protest movement against Marcos. The inspiration for the yellow color was not revolutionary but a romantic popular song by Tony Orlando (“Tie A Yellow Ribbon/ 'Round The Ole Oak Tree”)---
“I'm comin' home, I've done my time
Now I've got to know what is and isn't mine . . .”

Sen. Aquino’s coming home was seen as a symbol of patriotism or love of country and because hundreds and thousands of yellow ribbons or banners were raised throughout the land, in marches and rallies, in election campaigns, sorties, and other protest venues, “yellow” took the lead over red in 1983 as the color of protest.
Let’s fast forward again this time to the year 2017.
Are the “colors of August” fading through the efforts of new powerful forces in government and social media who are trying to erase and re-define the true meaning and historical significance of these colors in Philippine history?
Let us not forget our historical past including events that took place after Emilio Aguinaldo and his allies from the elite class took over from Andres Bonifacio and betrayed the spirit of the Katipunan and the Cry of Pugadlawin.
Let us not allow the few to spread fake news and untrue information about our history.
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. You can also visit Jojo Liangco’s website at www.liangcolaw.com.

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Ins & Outs of Immigration Detention

ICE raids are in the news frequently as the agency ramps up enforcement efforts against aliens who may be removable from the4 United States. Although official publicity emphasizes efforts to round up non-citizens with criminal records, ICE also makes “collateral arrests” of many otherwise law-abiding residents without proper immigration status. A raid that originally targeted one person could result in the arrests of many others who were just in the wrong place at the wrong time. The new enforcement priorities emphasize arrest and removal of anyone not legally authorized to remain in the United States, rather than focusing on people who pose a threat to public safety.
The Trump administration plans to dramatically increase the numbers of people held in ICE detention and ultimately deported, over and above the record high levels reached for both categories during the Obama years. This has led to grave concern among non-citizens and their loved ones throughout the country. Anyone who is out-of-status for any reason (or whose continued status is endangered—for example, by a criminal charge), is vulnerable to arrest and deportation. Those who have already been ordered removed by an immigration judge, and those who have been in the U.S. for less than two years, are likely to go into expedited removal proceedings that could have them deported within days or even hours of their arrest. For most people, however, the legal process takes much longer. In these cases, whether a non-citizen is held in ICE detention or released on bond can make a big difference in their family’s life for months or even years.
While some non-citizens are subject to mandatory detention, a knowledgeable immigration attorney will analyze whether one is entitled to a bond hearing and, if so, pursue that relief to help non-citizens either avoid detention or get released as soon as possible. The goal will be to prove that they do not pose a danger to society and will appear in court for their future hearings. These are the same issues an Immigration Judge will consider at a formal bond hearing on whether to release an alien who is already detained. Even if your loved one is already in custody, an experienced immigration attorney may be able to help secure their release.
The alternatives to detention for which non-citizens may qualify will vary with their current immigration status and the reasons why they are deportable. In almost every case, avoiding detention has important advantages: it keeps the non-citizen’s family together while awaiting their day in court, protects the non-citizen from the physical and psychological hazards of ICE detention, and enables the non-citizen to more effectively help with their defense against removal from the United States.
Most non-citizens held by ICE in California are entitled to a bond hearing after six months in detention. However, if someone is transferred outside the Ninth Federal Judicial Circuit, that protection could be lost. Regularly visiting a detainee may help to keep the person held locally, because it shows ICE that the non-citizen has friends or family in the area. State lawmakers have acted to ensure that, whatever happens with construction and expansion of detention centers at the federal level—and big spending increases for that purpose are planned--California’s ICE detention capacity will not be allowed to grow. This could lead to more Californians being detained out of state. However, the state’s goal is to encourage alternatives to detention for more California residents.
For some detainees, unfortunately, there is no alternative to detention. Federal law requires that non-citizens whose criminal histories meet certain criteria must be detained by ICE pending the outcome of their removal proceedings. These detainees, who may include green card holders as well as other non-citizens, are simply not eligible for release until the final resolution of their case. The courts try to expedite hearing schedules for an alien who is detained, but someone—even someone who has already won a decision in court—could still be held in ICE detention for months or even years without any hope of release until all appeals are exhausted.
People subject to mandatory detention are those who:
Committed certain crimes; and
Were taken into ICE custody when they were released from criminal custody.
Not all crimes which can make an alien deportable also require mandatory detention. It is best to consult a knowledgeable immigration attorney as soon as possible if your loved one is taken into ICE custody, even if you are told there can be no bond because they are subject to mandatory detention.

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New California Law Provides Key to Opening Locked Doors to Remaining in the U.S.

By Attorneys Ben Loveman & Nancy E. Miller

A significant recent change to California laws is providing new hope to persons formerly barred from immigration benefits. A new penal code section allows noncitizen-defendants to contest and potentially vacate a conviction at any time based on prejudicial error affecting the defendant’s right to understand and consider the immigration consequences before entering a guilty plea. Former law only allowed challenges while a person remained in custody and thus severely restricted the ability to bring such challenges especially since many people only learn of the severe immigration consequences of their conviction either directly after completing their sentence or many years after the fact.

Criminal convictions for even seemingly “minor” offenses can have major devastating consequences in the immigration realm. Convictions for common offenses like theft, drug possession or sale, shoplifting, or domestic violence can result in permanent bars to citizenship or green cards and can result in deportation.

An “aggravated felony” conviction (which may be neither aggravated or a felony under criminal law) subjects a person lawfully in the United States to removal and leaves little defense from removal. At first blush these consequences might seem fair enough. The person has been convicted of an “aggravated felony” after all and so must have committed a serious crime. Wrong. The INA defines aggravated felony to include minor offenses like the ones listed above. For instance, a person convicted of any type of theft offense who receives a one-year sentence (even if the sentence is suspended and the person never spends a day in jail) will be included in the definition of an aggravated felon. The same would be true for a person convicted of crimes of violence, including assault, assault regardless of the severity or circumstances of the assault if a one-year sentence is imposed.

Most immigrants and many criminal defense attorneys are unaware of the draconian consequences that follow these convictions. The result is that persons enter guilty pleas to these seemingly minor offenses (whether to avoid either exposure to more serious charges or the cost or time of fighting the charges, or both), receive what appears seems to be a good deal from criminal authorities but then tragically learn that they are forever barred from citizenship, face certain deportation or other harsh immigration consequences.

Former California law offered little recourse for persons in this situation to challenge the validity of their underlying criminal conviction. While many states have laws allowing such challenges, the legal framework of California’s system required that any such challenge be brought while the person was still in “custody’ of the state of California. The new law has no time limit and no requirement that the person still be in custody of the State at the time the motion is filed. The law provides that a motion to vacate a criminal conviction or sentence can be brought at any time on the grounds of “prejudicial error that damages the defendant’s ability to meaningfully understand the immigration consequences of the conviction or sentence, defend against them, or knowingly accept them.”

The ability to bring a motion challenging an old conviction even after service of the full sentence and completion of parole and/or probation is a huge development for persons suffering from harsh immigration consequences of convictions. However, simply making a perfunctory motion will not be enough to win such claims and vacate old convictions. Judges and prosecutors are likely to push back against overturning old convictions unless motions are carefully prepared and well-documented to meet all the requirements under the law.

Central to winning in this type of case will be presenting a clear case to the criminal court laying out the harsh consequences of the conviction, solid proof that the person would have not accepted the plea agreement had the harsh consequences been properly explained and understood, and that there would have been some other rational course of action for the defendant, like proceeding to trial or crafting some alternative reasonable plea agreement. Each of these elements must be carefully explored and then strongly supported in the motion to vacate a conviction.

The new law has opened a pathway to immigration benefits like permanent residency, naturalization, relief from removal, and possibly reopening of old removal and deportation orders to persons who were previously stuck. Determining whether you or a loved one might benefit from this new law will involve a detailed and careful analysis of the circumstances of each individual case. If you or a loved believes that this new law might apply you should contact an experienced and reputable immigration attorney as soon as possible to discuss your case.

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What is “sexual abuse of a minor” under immigration law

The ordinary meaning of “sexual abuse of a minor” (oftentimes referred to as “statutory rape”) is the “engaging in sexual contact with a person who is below a specified age or who is incapable of giving consent because of age or mental or physical incapacity.” Merriam Webster’s Dictionary of Law 454 (1996) cited by Esquivel-Quintana v. Sessions, Supreme Court, No. 16-54, 06/31/2017.
Statutory rape is different from other types of rape in that force is not necessary for conviction. Even if the victim consented to the sexual act or no force was used, the perpetrator may be convicted. The Free Dictionary by Farlex http://legal-dictionary.thefreedictionary.com/Statutory+Rape, Wikipedia https://en.wikipedia.org/wiki/Statutory_rape
On May 30, 2017, the Supreme Court saved from deportation a 21-year old lawful permanent resident alien who had sexual relations with his 17 year old girlfriend, holding that it did not constitute “sexual abuse of a minor”. The alien had pleaded no contest to a statutory rape offense of “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator” in violation of California Penal Code § 261.5(c) . “Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.” § 261.5(a). California defines “minor” as a “person under the age of 18 years.”
Removal proceedings were instituted against the alien for having been convicted of an “aggravated felony” 8 USC § 1227(a)(2)(A)(iii). “Sexual abuse of a minor” is an aggravated felony. 8 USC § 1101(a)(43)(A). The Immigration Judge ordered the alien removed. The Board of Immigration Appeals affirmed, 26 I&N Dec 469 (2015). The Court of Appeals denied the petition for review, Esquivel-Quintana v. Lynch, 810 F.3d 1019 (6th Cir. 2016).
The Supreme Court, in a rare show of unanimity, reversed the order removing the alien, holding that sexual relations between a 21 year old man and a 17 year old girl, did not constitute “sexual abuse of a minor”. The court recalled that in 1996 when “sexual abuse of a minor” in the definition of “aggravated felony” was added to the Immigration and Nationality Act, the “generic” “age of consent” was 16 and remains so today. The court said that the generic federal definition of “sexual abuse of a minor” requires the age of the victim to be less than 16.
The Supreme Court explained that to determine whether the conviction qualifies as an “aggravated felony, the Court must employ the “categorical approach” pursuant to which the court looks to the statute of conviction rather than to the specific facts underlying the crime. Under that approach the court asks whether the state statute defining the “crime of conviction” categorically fits within the “generic” federal definition of a corresponding “aggravated felony”. Since Cal. Penal Code § 261.5(c) criminalizes “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator” and defines a minor as someone under age 18, the conduct criminalized would be, at a minimum, consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21.
The court concluded that: “In the context of statutory rape offenses focused solely on the age of the participants, the generic federal definition of “sexual abuse of a minor” under § 1101(a)(43)(A) requires the age of the victim to be less than 16.” Esquivel-Quintana v. Sessions, Supreme Court, No. 16-54, 06/31/2017.
Observation: The court attached an Appendix to its opinion listing, state by state, offenses criminalizing sexual intercourse solely because of the age of the participants and the statutory age of consent. In Hawaii it is 14 years – the youngest. HRS § 707-730(1)(b) (1993). In California, among others, it is 18 – the oldest. Cal. Penal Code § 261.5(a) (1998).

(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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THE INTERSECTION OF FAMILY AND CRIMINAL LAW

Although family law and criminal law are two very distinct areas of the law, they frequently overlap creating challenges for lawyers who specialize in just one area. When a family law case involves elements of criminal law such as domestic violence, child abuse, restraining orders, alcohol (DUI) or drug offenses, the case becomes exponentially more complicated for the family law practitioner.

Since I have been a District Attorney in Los Angeles County for ten years with extensive experience in family violence and DUI/Drug criminal cases along with prosecution of child support cases, I have now twenty-one years experience in both the family and criminal law arena.

Often the multitude of orders in the family courts and criminal courts need to be consistent since conflicting orders will detrimentally affect your client and parties involved (including the children). Cases may proceed simultaneously in different courts and through different attorneys exposing the challenges of which orders take precedence. Note as well the different burden of proof since family law is in the civil arena while criminal law poses the paramount burden of proof of beyond a reasonable doubt.

I have written about the importance of how criminal charges such as child abuse, domestic violence, drug related arrests by a defendant involved a divorce case must be litigated to its full extent in order to prevent negative consequences to his/her divorce case. A conviction of a violation of a restraining order, drug possession and use, or child abuse/neglect for example, would be considered by the family court judges in determining custody, visitation and spousal support.

All states, including the District of Columbia (“DC”) have statutes that require the courts to consider domestic violence committed by one parent against the other in resolving custody or visitation disputes between parties. Additionally, in all states and DC, individuals who have experienced domestic violence have civil and criminal remedies to protect themselves from further orders.

In many states, when the police encounter a domestic violence situation, one of the two parties involved in the dispute is required or requested to leave the home. In about one-third of the states, police officers are also authorized or required to remove guns when they arrive at the scene of a domestic violence incident without further investigation or court intervention.

In some states, the police can give the victim an emergency protective order (EPO). An EPO is a short-term protection order typically given to a victim by the police or a judge. This permits the victim to file the necessary paperwork in family court for a permanent restraining/protective order.

Any drug or alcohol related arrests and conviction impacts the court’s ruling as to which parent should have legal and physical custody of the child. In determining what is the best interest of the child, the judge will review a parent’s history of drug and alcohol use/abuse and impose certain conditions for visitation or even impose no visitation.

As for any reports of child abuse and/or neglect, the Department of Children Services will also become involved and depending on the police findings and agency recommendation, a criminal case will be filed. The family law judge will then make a finding of whether a parent (defendant in the criminal case) has any visitation or custody rights.

I have represented many clients in both arena and have even taken the criminal cases to trial since I know the dire consequences to my client’s divorce/family law case if a conviction results. A false allegation of domestic violence, child abuse, drug use is not uncommon while a divorce is ongoing so it is critical that a client who faces both a criminal charge and an ongoing divorce is represented adequately in both arenas.

If you have any questions, feel free to email me directly at This email address is being protected from spambots. You need JavaScript enabled to view it. or visit my website attycastaneda.com.

http://attycastaneda.com/intersection-family-criminal-law/

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Voluntary Departure of Undocumented Immigrants

 

Given the restrictive U.S. immigration policy and failure to pass a comprehensive immigration reform law, many Pinoy immigrants who are still in unlawful status are considering voluntarily departing from the United States to return to the homeland. What will it take for one to voluntarily depart the United States after overstaying for many years? What are the consequences of going through voluntary departure?

Teresita arrived in the United States in 2008 using a visitor’s visa. She overstayed in the United States and worked without legal authorization. After her visa expired, she worked as a caregiver for elderly patients.

After 7 years, Teresita finally made a decision to return to the Philippines. Her children are all grown up and the money she earned taking care of the elderly helped her young children finish their college education. Lately, she realized that she has a limited chance to legalize her stay, and lost hope that prospective changes in policy on undocumented immigrants would ever occur soon. Teresita is confident about her decision to depart and return to her family. She wants to know what steps to take and the effect of her departure on her future visa applications.

Voluntary Departure

Voluntary departure happens when an undocumented immigrant returns to his home country at his own expense without the need for government enforcement or deportation order.

Voluntary departure refers to a situation where the agencies such as the Department of Homeland Security or the Immigration Courts are not involved in the individual’s decision to depart from the United States. A Filipino national who is undocumented may simply purchase a one way ticket back to the homeland, carry a valid passport and then board the plane for the flight back to the Philippines. The US Department of Homeland Security does not need to be notified about the departure neither is there any penalty paid upon departure.

From a legal perspective, however, voluntary departure is used as a form of relief either in court or before the U.S. Department of Homeland Security. Examples of individuals who go through voluntary departure are airline passengers who are found inadmissible at the port of entry and depart voluntarily the same day of their arrival.

There is no negative legal consequence of a voluntary departure provided that the person who departed did not commit fraud or overstayed for more than 6 months.
In the case of Teresita, there is a legal consequence of her departure even if she departs of her own volition. Since she has resided in the United States for more than one year, under the 3-10 year bar rule under the U.S. immigration law, she is barred from returning to the U.S. for 10 years.

Considering the increase in the number of deportations and the gridlock in the U.S. Congress to fix the broken immigration system, it is not surprising that we will be witnessing individuals in unlawful status who will voluntarily leave the United States. This is also a very likely scenario especially if the controversial Republican primary contender wins the election.

(Atty. Lourdes S. Tancinco is a partner at Tancinco Law Offices, a San Francisco based law firm and may be reached at This email address is being protected from spambots. You need JavaScript enabled to view it., facebook.com/tancincolaw, www.tancinco.com or 1-888-930 0808)

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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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