Filipino immigrant spared deportation by US Supreme Court

By Lourdes Santos Tancinco
Philippine Daily Inquirer

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Joel was eight years old when he entered the United States. At age 22, he had trouble with the law. A victim was shot and killed. Although Joel was not the principal accused in the crime, he was charged and convicted as an accessory to manslaughter.

The criminal court gave him a suspended sentence of six years and he was released on probation. In 2005, 17 years after the criminal incident when Joel was already 39 years old, the US Department of Homeland Security commenced deportation proceedings against him. The notice to appear at the hearing stated that Joel was deportable based on the voluntary manslaughter conviction.

Joel has lived in the US continuously for the last 36 years. He has a 14-year-old daughter. His parents and two sisters are American citizens. Had Joel been naturalized as a citizen before his entanglement with the criminal justice system, he could have altogether avoided deportation proceedings. Unfortunately, his parents never filed his citizenship application when he was still a minor; hence, he remained a green card holder through adulthood.

Joel appeared before the immigration court to appeal his removal. He argued that the basis for his removal should be waived under the former Section 212 (c) of the Immigration and Nationality Act (INA), a provision repealed in 1996 but which is still given retroactive applicability to certain crimes prior to the law’s repeal.

Despite his efforts, Joel’s waiver application was denied. The immigration court ordered Joel deported. He appealed this decision to the Board of Immigration Appeals (BIA) but was unsuccessful. Joel then elevated his case to the Ninth Circuit Court of Appeals. Again, he was denied relief. The attorneys for Joel then filed a Petition for Certiorari before the US Supreme Court.

This time, Joel’s luck changed. The US Supreme Court granted certiorari and remanded the case of Joel back to the Ninth Circuit Court of Appeals. The US high court concluded that the decision of the BIA in ordering Joel’s deportation based on a “comparable approach” of assessing his waiver defense was arbitrary and capricious.

What is the “comparable approach” that the US Supreme Court deemed  arbitrary?

Non-US citizens who have a prior criminal conviction may be deported as a consequence of the crime. But not all crimes are grounds for removal. Felony convictions that have serious consequences to one’s immigration status are the “aggravated felonies,” i.e. murder, rape or sexual abuse of minor, illicit trafficking in a controlled substance, among others.

Under the “comparable approach” used by the BIA, the waiver could be granted only if the ground for which the deportee was being removed has a comparable ground for exclusion.

The Supreme Court said using this approach was a violation of the constitutional principle of equal protection of the law.

Obama vs Arizona

Another immigration case is now before the Supreme Court.  The Obama administration filed a lawsuit to block the enforcement of Arizona’s immigration law which allows State police to arrest people without warrants if they have probable cause to believe that they are illegal aliens.

In the same week that the decision on Joel’s case was rendered, the US Supreme Court also accepted the administration’s case for review and agreed to make a determination on whether a state like Arizona may restrict the federal government’s power to regulate immigration and/or grant unto itself broad police powers over immigration issues. A decision is expected sometime in late June 2012.

SC should not be politically driven

For the Supreme Court to grant certiorari on a removal case is certainly not a typical occurrence. But while the case had been penned by a perceived progressive or liberal-leaning Justice, Elena Kagan, the decision is based on solid constitutional grounds and was approved unanimously by all members of the US Supreme Court.

It would be difficult to conclude, under the circumstances, that the decision was simply motivated by the desire of the Supreme Court to influence immigration policy or that it  wholly intended to serve strategic political interests.

As an aside but certainly in the same vein, decisions penned by each individual justice on behalf of the Philippine Supreme Court should be equally perceived as simply upholding the constitutional rights of the citizenry and nothing else. This is paramount if public trust in the Court is to be deserved. The integrity of the individual members who are tasked to uphold the rule of law should be perceived as intact and their decisions should pass constitutional muster independent of their ideological inclinations or personal loyalties if the institution is to survive.

(Tancinco may be reached at law@tancinco.com or at 877 7177 or 721 1963)

The Filipino diaspora

By Ted Laguatan

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During the Marcos years—because of severe economic depression, lack of job opportunities and political oppression—thousands of Filipinos desperately seeking better lives for themselves and their families took risks and bravely went to strange lands and cultures taking on whatever jobs were available.

After the downfall of the Marcos regime, the Philippine economy did not take off as expected. Compared to its Asian neighbors’ robust economies,   the Philippines continued to reel from the terrible legacy left by the dictator: massive institutionalized corruption, crony capitalism, bad or weak leadership and a host of other problems — preventing an industry based economic takeoff.

As such, taking comfort from the courageous trailblazing examples of their forebears who managed to survive and make do in countries with even the strangest of cultures and even the coldest or hottest climates — increasing numbers of Filipinos continue to leave the Philippines to work and even settle permanently in foreign lands.

It is the billions of dollars  of cumulative financial contributions sent to loved ones by these brave sacrificing souls  that has kept the Philippine economy afloat.

Definition of the word “diaspora”.  I notice that the word is often floated around by Filipino writers who assume their readers know what it means. The Oxford dictionary definition: “The dispersion or spread of any people from their original homeland.”

The word “diaspora” is usually associated with the Jewish people. The Jewish people left Israel and scattered all over the world as a result of various conquerors who took over Israel: Assyrians, Babylonians, Romans. Officially, the year 597 BC marked the beginning of the continuing Jewish diaspora when the Assyrians conquered the Jews.

For the Filipino diaspora, which is now a part of world history, for  purposes of setting an official date marking its beginnings,  I believe a proper date should be 1972 — the year the dictator Marcos declared martial law.

A  scattering of Filipinos had already migrated to the US prior to this time — mostly in Hawaii and California — many of whom were relatives of sugarcane field workers recruited from the Ilocos regions in the early 1900s  or US military predominantly navy personnel who had become naturalized US citizens. Filipina nurses and doctors were also coming in significant numbers in the late 1960s on Exchange Visitors visas but not as immigrants. Most of them stayed and eventually became permanent residents or US citizens.

In some Middle East countries, Hong Kong and other Asian countries,   Filipinos were already  working, mostly as domestic workers or musicians even before the martial law years.

But it was when martial law was declared in 1972 and the years after when mass migration of Filipinos to different parts of the world took a quantum leap. This phenomenon continues on today.

In Rome, Paris, Tokyo, Singapore, Bahrain, Dubai, Hong Kong, and other cities in the U.S., Canada, Europe, the Middle East and Asia — we find  communities of thousands of Filipinos.

Like the Jews, we are now practically in every corner of the world managing not only to survive but even becoming successful in various professions and  businesses — especially for  those who went to the U.S.

And like the Jews, we bring with us our culture, our values, our religion, our food and whatever else that makes us uniquely Filipino — enriching and influencing the general society at large where we have embedded ourselves. In my beloved San Francisco,  Los Angeles, Sacramento, New York, Chicago and other US cities, many non-Filipinos are as familiar with lumpia and adobo as they are with pizza and tacos.

Many have intermarried with non-Filipinos. My daughter is married to a Jewish American who has a mixture of Russian, Lithuanian blood in him.  My first grandson who will come into the world this November will be a mixture of his father’s  blood plus French and Ilongga (from my wife) and Chinese, Spanish, Ilocano (from me). If not for the Filipino diaspora, of which I am a part, his existence would not be.

For many Filipinos, bound by blood, culture and origins, even if they live in other lands, their concern for the well being of their brother and sister Filipinos in the homeland and around the globe continue.  They are continuously involved in the sacred effort to create a better Philippines and for all Filipinos wherever they may be.  Like the  global community of Jews, who are influential on Jewish concerns anywhere in the world, I  have no doubt that  the global community of Filipinos will also be very influential re Filipino concerns in the future.

Some overseas Filipinos, because of  their global experience of living, working and interacting with non-Filipinos – have also come to realize that their concern for others should not be limited and restricted by tribal, geo-political, racial or national boundaries  - that they should not limit their concerns to Filipinos only – but include all human beings as we are all part of one human family. Such individuals have become true global citizens when they have arrived  at this profound realization.

From September 27-29, 2011, for the first time in the history of the Philippines, a global conference will be held at the Philippine International Convention Center in Manila where overseas Filipinos from all over the world will meet and confer on issues relevant to Filipinos all over the world including those in the Philippines. The title of the conference: ” Diaspora Development: A Global Summit of Filipinos in the Diaspora”.

Petitioners’ difficulties with Affidavits of Support

By Lourdes Santos Tancinco
Philippine Daily Inquirer

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Paul, a US citizen, filed a petition for an  immigrant visa on behalf of Manuel, his only brother in the Philippines. After waiting for more than 20 years for a visa to become available, Manuel finally received his “checklist” to start his visa processing.

Unfortunately, Paul is unemployed. He was terminated from his job three years ago and has not found another job. With the visa of Manuel about to be processed, he knows that he needs to submit an Affidavit of Support as part of the visa application. He asked his cousin to be a co-sponsor but she was hesitant to be a “cosponsor” because of reports that serious legal consequences could arise from signing an Affidavit of Support. Manuel, who is now a senior citizen, could end up relying on welfare upon his arrival in the US because of the current state of the economy.

Paul himself is on public welfare. But after waiting for two decades, Paul is excited to be reunited with his brother despite his financial difficulties. What will happen to the application for immigrant visa of Manuel?

Mandatory requirement

Generally, a family-based immigrant visa will not be issued if there is no Affidavit of Support executed by the petitioner or a cosponsor.

The petitioner must demonstrate that she or he can support the immigrant at an annual income that is not less than 125 percent of the federal poverty line. The poverty guidelines may be found on US Citizenship and Immigration Service Form I-864P.

In the case of Paul, he lives with his wife and is considered to have two family members. If he is to include the person being petitioned, he is considered to have three family members. The 2011 guidelines indicate that for a family of three, the poverty income guideline is $18,530 and 125 percent of that is $23,162. Since Paul has no income, he has to find a co-sponsor who has sufficient income and who is willing to co-sponsor.

Cosponsorship problems

When economic times were better, finding a cosponsor was not as difficult. These days  prospective cosponsors are hesitant to execute Affidavits of Support. Among the reasons is that these affidavits are considered contracts between the sponsor and the federal government. If the sponsored immigrant becomes a public charge or receives federal, state or local welfare, the government could sue the sponsoring family member and the cosponsor for reimbursement.

There is also a provision in the law that makes Affidavits of Support enforceable through lawsuits filed by the sponsored immigrant. This may sound strange, but there are cases filed by the sponsored immigrant against their petitioners. An example of this is in marriage cases where the sponsored immigrant separates and files for divorce. If the petitioner spouse refuses to provide support for  the sponsored spouse, a case of enforcement of contract may be filed against the sponsor. This lawsuit is based on petitioner’s obligation, which remains in full force and effect based on the signed Affidavit of Support.

Lifelong commitment

There are only five ways that a sponsor’s obligation of support may be terminated: (1) the sponsored immigrant becomes a naturalized citizen; (2) the sponsored immigrant works for 40 Social Security quarters (or, in the case of a married immigrant, his or her spouse works for 40 Social Security quarters while they are married); (3) the sponsored immigrant relinquishes permanent resident status and leaves the country; (4) the sponsored immigrant obtains new status in a removal proceeding; or (5) the sponsored immigrant dies.

One would notice that all these five ways are circumstances beyond the control of the sponsor. What if the sponsored immigrant refuses to naturalize? What if the sponsored immigrant finds it difficult to find a job? The sponsor may face a lifelong commitment to the sponsored immigrant.

Despite the legal consequences of a signed affidavit,many Filipino families exhibit strong determination to reunite with their relatives. Many are still pulling resources to put together Affidavits of Support for a successful immigrant visa processing. Indeed, family unity among Filipino immigrants remains a top priority and it is the family that enables them to sustain the many challenges of the times.