“Our lawyer told us we will win,” alien tells Immigration Judge

by Atty. Emmanuel Samonte Tipon

“Did you make any preparations for your return to the Philippines in case I order your wife’s removal?” the Immigration Judge asked the husband of a deportable alien from Dingras, Ilocos Norte, who was testifying today (April 12).  “No,” he replied.

“Why not?” the Judge inquired. “Our lawyer told us we will win,” the alien’s husband answered.  The Judge smiled and continued: “Didn’t you discuss the possibility of losing?”  “No,” the alien’s husband replied.

This colloquy could have had disastrous and embarrassing consequences. The Judge has almost absolute discretion to grant or deny relief. He could have denied relief to teach a lesson to this lawyer for guaranteeing victory. Instead, the newly-minted Judge said: “I will grant your wife relief. She will not be removed.”

Turning to us, the Judge remarked: “I will grant only one form of relief – Sec. 237(a)(1)(H). Do you wish to withdraw the other forms of relief you asked?

My Caucasian associate asked my opinion. I said: “We are not withdrawing any. Your Honor can make whatever decision he deems appropriate with respect to such other relief.”  Many lawyers believe that one should try to please the Judge by agreeing to his suggestion. I don’t believe in that. A lawyer has a duty to advance any relief available. If the lawyer withdraws it and the prosecutor appeals the decision and the appeal is sustained, then the alien has no more relief available because he has withdrawn them. That’s ineffective assistance of counsel.

The alien was charged with entering the U.S. using an invalid visa. She entered as a minor derivative of her father who immigrated on a visa petition filed by his father (the alien’s grandfather). However, the father did not tell consular officials that the petitioner had already died. A Filipino reported the entire 20 family members to immigration authorities (5 brothers, 1 sister, 3 spouses of the brothers, and 11 children). Strangely, she was not charged with fraud.

WAIVERS AND RELIEF SOUGHT

We invoked five forms of immigration relief all of which are discretionary with the immigration judge. The alien must prove all requirements for each relief sought.
INA §212(i) – waiver of inadmissibility for visa fraud where immigrant is the spouse, son, or daughter of a USC or LPR if qualifying relative will suffer extreme hardship if alien refused entry.
INA §212(k) — waiver of inadmissibility for lack of valid visa where exclusion was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant.
INA §237(a)(1)(H) — waiver of removability for immigrant inadmissible for visa fraud who is the spouse, parent, son, or daughter of a USC or LPR.
INA §240A(b) – cancellation of removal for non-permanent residents.
INA §240(B) — voluntary departure.

ANOTHER FILIPINA SAVED FROM DEPORTATION

The prosecutor said that the alien was not eligible under 237(a)(1)(H) because she was not charged with fraud. The Judge suggested a continuance to enable us to research the issue. We objected saying that there was no need for further research because we were writing a book on waivers and cancellation of removal and had read every case on the subject. We said that we had already cited a case, Persaud v. INS, 537 F.2d 776 (3rd Cir. 1976), holding that 237(a)(1)(H) applied even if no fraud was charged if fraud was used in securing a visa (by her father). We pointed out that the alien was suffering mental anguish, emotional distress, and extreme anxiety and wanted her suffering to end today, win or lose. The Judge granted relief. I congratulated the alien, saying: “I prayed for you,” and gave her the Bible I used given to me by my nephew Antonio Baquiran also from Dingras when I visited him and his brother Angel in San Francisco.


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com, and www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most witty, interesting, and informative radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at  www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)