Silent majority for Trump – and won

By Emmanuel Samonte Tipon 

“Oh God, please make Donald Trump win if you love America.” That was my prayer at the new Iglesia Ni Cristo Diamond Head congregation. This was the first time I ever prayed hard for a candidate to win. I had told Mr. Trump when I met him in Cleveland during the Republican Convention.  “Mr. President, I will pray for you.” “Thank you, thank you very much,” he whispered. Millions prayed for Trump to win.

Emmanuel S. Tipon with grandson Robbie at Kailua Beach in Hawaii

You all know God’s answer.  God spoke through the silent majority. Vox populi. Vox Dei.

Congratulations Mr. Trump and Mr. Pence.

The silent majority hearkened to Trump’s clarion call “I am your voice. I will speak for you.”

How to obtain stay of removal after final order of removal

By Atty. Emmanuel Samonte Tipon 

Is there relief available after an appellate court has denied an alien’s application for immigration relief and issued its final mandate for deportation or removal or the immigration court has ordered deportation or removal and no appeal was taken so that the order has become final?

Yes. An Application for a Stay of Deportation or Removal may be filed with the U.S. Immigration and Customs Enforcement (ICE) by an alien who has been ordered deported or removed from the United States while the alien is still in the United States in accordance with 8 C.F.R. 241.6, Administrative Stay of Removal.

ICE Form I-246 should be filled up with the reasons for requesting a stay of deportation or removal. The factors for granting parole to aliens in 8 CFR 212.5 and stay of removal under INA Section 241(c) may be given as reasons, such as “urgent humanitarian reasons” or “significant public health benefit” or that the “immediate removal of the alien is not practicable or proper” or that the alien is needed to testify in the prosecution of a person for violation of law.

How aliens can get advance parole to travel to the United States

By Atty. Emmanuel Samonte Tipon  

What is “parole”? “Parole” allows an alien to physically enter the U.S. for a specific purpose – usually for humanitarian reasons or significant public benefit. See Immigration and Nationality Act Section 212(d)(5).

Family members of Filipino World War II veterans who are beneficiaries of approved family-based immigrant visa petitions will be given an “opportunity to receive a discretionary grant of parole on a case-by-case basis, so that they may come to the United States while waiting for their immigrant visa to become available” beginning June 8, 2016 according an announcement by USCIS on May 9, 2016.s

The Department of Homeland Security issues an Advance Parole document to an alien authorizing the alien to appear at a port of entry to seek parole into the United States. This document may be accepted by a transportation company in lieu of a visa as an authorization for the holder to travel to the United States. The alien must have a passport. The Advance Parole document does not, by itself, entitle the alien to enter the United States. When the alien arrives at the port of entry, the alien will be inspected by the Customs and Border Protection. The alien must present the Advance Parole document to the CBP agent who will review the case to determine whether the alien is admissible under the Immigration and Nationality Act. If the CBP agent denies parole, the alien may be detained and subjected to expedited removal or placed in removal proceedings before an Immigration Judge as authorized by law and regulations. If the CBP agent grants parole, the agent will issue a separate document authorizing the alien to be paroled into the United States, and specify the terms and conditions as the agent may deem appropriate. An alien who has been “paroled” has not been “admitted” to the United States in immigration parlance but remains an “applicant for admission”.

Motion to reconsider and to reopen

by Atty. Emmanuel Samonte Tipon 

After an unfavorable decision by an Immigration Judge or the Board of Immigration Appeals, most aliens give up. They do not want to appeal. Not so some of our clients who never give up, no matter what the cost. As the poet James Henry Leigh Hunt wrote “May their tribe increase.”

But appeal is not the only weapon available to an intrepid lawyer who wants to help his client overturn what is perceived as an unjust decision. There are weapons like motion for reconsideration and motion to reopen.

MOTION FOR RECONSIDERATION

A motion for reconsideration seeks to change the adjudicator’s decision on the ground that there are errors of fact or law. For example, an Immigration Judge denied an immigrant’s motion for continuance (postponement) to a date until after the elections in order to await President Obama’s declared intention in September 2014 to give deferred action to millions of aliens unlawfully in the country. The Judge reasoned that the ground for continuance was “speculative” and ordered the immigrant removed. The Board agreed with the Immigration Judge.

Instead of filing a petition for review with the Court of Appeals, my co-counsel and I on the immigrant’s behalf sought reconsideration of the Board’s decision. We contended that the President’s announcement was not “speculative”. His announcement that he would initiate immigration reforms by executive action after the election was couched in language that was certain – “I’m going to act because it’s the right thing for the country,” “I want to be very clear. My intention is, in the absence of action by Congress, I’m going to do what I can do within the legal constraints of my office.” Therefore it was arbitrary for the IJ and the Board to have labeled as “speculative” the President’s September 2014 declaration.

Wednesday morning amnesty for illegal aliens?

Atty. Emmanuel Samonte Tipon 

President Obama announced on Saturday that he plans to put off executive action on immigration until after the midterm elections on Tuesday, November 4. “Executive action” means the President will enact immigration rules and regulations by himself without congressional action.

So on Wednesday morning, November 5, expect the President to unveil (unleash?) his “executive action”. Many believe that he will grant amnesty to the estimated 12 million illegal aliens in the United States. Of course he will not call it “amnesty”. That word generates strong negative reaction from law abiding citizens. He will probably call it “path to citizenship,” or “deferred action for humanitarian reasons” or something palatable.

Why will the President do that? Politics. Imagine 12 million new Democratic voters. The Democrats will control the country.

Why is the President postponing his “executive action”? Politics. If he does it before the November midterm elections, the majority of the American people who are against amnesty will be so angry that they will go to the polls to vote against the Democratic senatorial candidates. Republicans will thus win at least 6 senatorial seats thereby enabling them to control the Senate.

Is there a constitutional “right to marry and to enjoy marriage”?

by Atty. Emmanuel Samonte Tipon 

Many have heard of the Declaration of Independence’s proclamation that our Creator gave us the unalienable right to the “pursuit of happiness.” Some, however, prefer the “happiness of pursuit”. “When fishing for happiness, catch and release” is the key to being happy, according to Shimon Edelman. A lawyer I know who is enjoying the good life believes in “catch and release”. He is a 20-game winner.

Now comes the U.S. Court of Appeals telling us, in an immigration case involving a Filipina, that “the right to marry and to enjoy marriage are unquestionably liberty interests protected by the Due Process Clause” of the U.S. Constitution. Ching v. Mayorkas, No. 11-17041 (9th Cir. 08/07/2013). They were not talking about gay marriage but Biblical marriage. We will concede that the “right to marry” might be a liberty interest protected by the Constitution. But the right “to enjoy marriage” is protected by the Constitution? Come on. How? Nobody, let alone a parchment, can guarantee “enjoyment” of anything, especially marriage.

Ching, a native of China but a citizen of the Philippines, lawfully entered the United States as a nonimmigrant visitor. She intended to stay for one month, but then began dating Fong, a U.S. citizen, whom she met on a dating website. They were married in two months. Fong filed a visa petition, Form I-130, for Ching.  Ching filed an application for adjustment of status, Form I-485, to obtain permanent residence. Ching withdrew the adjustment application informing USCIS that she planned to divorce Fong. A year later, Fong and Ching divorced.

FilAm avoids deportation by having immigration regulation voided

by Atty. Emmanuel Samonte Tipon 

The U.S. Attorney General (Secretary of Justice in the Philippines) is the chief enforcer of immigration laws. He is authorized to prescribe regulations to interpret and implement the immigration statutes. These regulations have the force of law. It is very rare to get an immigration regulation invalidated by the courts. A Filipino American did it and avoided deportation.

Conchita, a Filipina, was admitted to the U.S. as a nonimmigrant treaty investor.  Rodolfo asked her if she knew somebody who might be able to help him get an extension of his visa. Conchita replied that she might. Later, Rodolfo cooperated with the Government in their investigation of a visa fraud scheme.

When Conchita re-entered the U.S., she was questioned by an immigration special agent about what she told Rodolfo. The agent said Conchita admitted that she had telephoned Cecilia, wife of a U.S. customs inspector, about Rodolfo’s immigration problem. The special agent reported that Conchita denied having told Rodolfo that she knew a person who could help him with an extension of stay for a fee of $250 to $300.

INS issued an Order to Show Cause, alleging that Conchita had violated the conditions of her nonimmigrant status pursuant to 8 C.F.R. § 214.1(f) by falsely stating to an INS special agent that she "had never told any alien that [she] could assist in obtaining an extension of nonimmigrant status for money." The OSC alleged that Conchita had told Rodolfo that she knew someone who could get him an extension for $200 to $300.

What to do when adjustment of status is denied

Atty. Emmanuel Samonte Tipon

A non-immigrant lawfully in the United States may adjust his/her status to that of a person admitted for permanent residence pursuant to Section 245 of the Immigration and Nationality Act.

What if the alien applies and receives a notice stating that the application for adjustment of status is denied and that no appeal lies from the denial, although the applicant may renew the application in removal proceedings. Que horror! What should the alien do?

I just came from a meeting with the top brass of U.S. Citizenship and Immigration Service (USCIS) in Honolulu today (March 10). Here are the possible options: (1) do nothing, (2) ask USCIS to issue a Notice to Appear (NTA) before the Immigration Court, or (3) file a new adjustment application. No mention was made of filing a motion to reopen or reconsider. No discussion was made of the details of each option.

You will need an excellent lawyer to evaluate each option and how it could apply to your case.

Remedy for consular visa denial or inaction

by Atty. Emmanuel Samonte Tipon

Hundreds of visa applications at U.S. consulates abroad are denied for a number of reasons. What should a visa applicant do if his/her application is denied?

The applicant may either ask to reopen the case or move for reconsideration of the denial. When the applicant asks to reopen, the request should be accompanied by new evidence. When the applicant moves for reconsideration, the motion must show that the consul committed factual or legal errors. The best strategy is to ask for both reopening and reconsideration, supporting it with additional documents and legal arguments.

What if the consul does not act on the request to reopen or motion to reconsider for an unreasonable length of time? Can the applicant’s petitioner and the applicant go to court and if so which court?

A Mexican applied for a visa at a U.S. Consulate abroad based on an approved I-130 petition filed by his daughter. The U.S. Consulate denied the Mexican’s visa application. He and his daughter filed a petition in U.S. district court for an order compelling Department of Homeland Security and Department of State officials to act on his Form I-601 (Application for Waiver of Grounds of Inadmissibility) and his letter requesting reconsideration of the denial of his Visa Application and Alien Registration form.

How to foil immigration authorities by silence

by Atty. Emmanuel Samonte Tipon

“Less talk, less mistake. No talk, no mistake.” – Senatorial aspirant Gene Magsaysay refusing to discuss the issues of the day. He won.

The word “loquacious” became popular in the Philippines when President Estrada fired a chief of staff he imported from Canada for being “loquacious”. The employee had been talking to the media about midnight drinking and gambling in Malacanang Palace. This infuriated Erap. His first name sounded like an Aphrodisiac. I forgot his last name but it starts with “L”. (L for loquacious?)

A loquacious witness is the worst witness. Loquacity is the curse of many Filipinos seeking immigration benefits or avoiding deportation. Why can’t they control their loquacity and instead hearken to Gene Magsaysay’s slogan?

An alien in removal proceedings was asked by the government counsel how many times he had slapped his wife. The record showed that he had only one conviction for slapping his wife.  He replied: “Oh, many times. She has a big mouth. Every time she opens her mouth I slap her.” We castigated him after the proceedings for saying that. “But you told me to tell the truth,” he exclaimed in justification. He was deported. We obtained a reversal of his deportation order but he died before he could be brought back to the U.S.

Another alien in removal proceedings for drug use was asked by the Immigration Judge how many brothers he had. He replied. “I have only one brother. But he was deported for drug use.” His lawyer reproached him for saying those things telling him that he could have just answered: “One” without telling about his brother’s deportation, since he was not being asked about it.  “But it’s the truth,” the alien said. The alien was deported.

Fraudoriski and four lawyers

by Atty. Emmanuel Samonte Tipon 

An alien whom we shall call “Fraudoriski” was petitioned by his mother, a lawful permanent resident of the United States, as a single person, although he was married with two children. The petition was approved and he was admitted to the U.S. He wants to petition his wife and children.

LAWYER # 1

Fraudoriski went to Lawyer # 1 and asked what he should do. “Do nothing,” advised the lawyer.

But I want to be reunited with my wife and children, he insisted. Lawyer # 1 said that if he petitioned his wife, his fraud would be discovered by USCIS because his marriage contract that he would submit to establish marital relationship would show that he was married before he was admitted to the U.S. In the unlikely event that USCIS is sleeping and misses that fact and approves the visa petition, U.S. Embassy is not likely to miss it, since they would be checking the National Statistics Office (NSO) on his civil status, and they would discover that his marriage occurred before he was admitted.

Fraudoriski said that there were fixers in the Philippines who could change the date of the marriage contract to show that he was married after he immigrated. Lawyer # 1 said that those fraudsters may be able to produce such a fake document but the original files remain at the NSO in film, microfiche or other secure form. Besides, have you ever used your genuine marriage contract for any purpose, like applying for a job? If you have, how are you going to correct that? How about your children, their birth certificates probably show that they are legitimate and that you and their mother are married with a specific date of marriage? “The fixers can change that too, so they will appear as illegitimate and that their mother and I are not married,” said Fraudoriski. There is still that problem of the original files remaining at NSO. Besides, your children must have used their genuine birth certificates, like enrolling in school. Can you retrieve those certificates? “I will contact another lawyer and ask for a second opinion,” said Fraudoriski. How much do I owe you? “You owe me nothing,” replied Lawyer # 1.

Bringing back deported aliens

by Atty. Emmanuel Samonte Tipon 

A number of aliens who have been deported or their relatives have asked how the alien can return to the United States.

After an alien is ordered removed, the alien’s lawful permanent resident status (LPR) and green card are revoked.

Consequently, it is fundamental that the alien must have a bridge to America so that the alien can return. There must be an approved visa petition for the alien by a qualified relative. Furthermore, the alien must not be inadmissible. If a waiver is available to cure the ground of inadmissibility, the alien must apply for a waiver and it must be approved before a visa can be issued. It is very difficult but doable.

With respect to aliens who have been deported after losing their removal proceedings in the Board of Immigration Appeals but who win in the Court of Appeals or the Supreme Court, they may be brought back to the United States.

From fiancée to lawful permanent resident in 6 easy steps

by Atty. Emmanuel Samonte Tipon

There are six easy steps for an alien fiancée to become a lawful permanent resident (green card holder):

First, the non-citizen and the U.S. citizen must meet in person and then become engaged to marry (fiancée and fiancé), after courtship and dating.

Second, the U.S. citizen fiancé must file a petition for a fiancée visa (K visa) with the U.S. Citizenship and Immigration Services (USCIS) within two years after the meeting.

Third, after the petition is approved and the documents are sent by the State Department to the U.S. Embassy in the country where the fiancée resides, the fiancée must apply for and obtain a fiancée visa.

Fourth, the fiancée and the petitioning U.S. citizen must get married within 90 days after the fiancée arrives in the United States.

Fifth, the former fiancée who is now the spouse of a U.S. citizen must apply for adjustment of her status to that of lawful permanent resident with the USCIS, and after an interview during which the couple must establish that their marriage is in good faith and that it was not entered into for the purpose of avoiding the immigration laws, the application is approved and a conditional resident card is issued.

Deporting alien spouses marrying for immigration purpose

Atty. Emmanuel Samonte Tipon

“Why do you want to deport someone, you are always fighting to prevent people from being deported?” asked the chief of the local Immigration and Customs Enforcement (ICE), smiling.

“I want to see the immigration laws enforced,” I told him. Seeing that I was serious, he asked for details.

A female U.S. citizen went to the Philippines to meet a man. They got married. Her petition for him was approved and he got a visa.  His young wife incessantly called him “Come now.” But he did not come. Apparently he received advice that if a person married to a citizen enters the U.S. more than two years after their marriage, he will be given a permanent alien card, rather than a 2-year conditional resident card.

Upon arrival 2 years later, he went to a relative’s home, rather than his wife’s. A mutual acquaintance told the wife that she saw her husband working at a restaurant. She and her parents went to the restaurant and  confronted him.

Even God does not grant amnesty

Atty. Emmanuel Samonte Tipon 

One lesson that a person learns by going to church is that not everybody will be saved from eternal damnation. You have to (1) believe in God, (2) have done good things, and (3) repent for your sins.

One learns by going to immigration court that the judge will save you from deportation and grant you a waiver (forgiveness) for your immigration violations if (1) you have done good things, (2) you express regret, remorse, repentance, and show rehabilitation, and (3) your continued stay is in the best interests of the United States.

Is it in the best interests of the United States to grant blanket amnesty to aliens in the U.S. illegally? Absolutely not. Is it in the best interest of a certain political party to grant amnesty? Absolutely. That party will get approximately eleven million new voters. That is why that party, the amnesty supporters, and their allies in the media are coaxing (threatening?) the House of Representatives to go along with the Senate-approved immigration bill, known as S. 744 (sounds like an airplane model). They say bad things against those who oppose amnesty rather than discuss the merits of the bill. Did any of the Senators read word for word the entire bill consisting of 1,000 plus pages?

First immigration decision approving visa petition for same sex spouse issued

by Atty. Emmanuel Samonte Tipon 

Three weeks after the U.S. Supreme Court ruled on June 26, 2013 that § 3 of the Defense of Marriage Act (DOMA) providing that "marriage" means only a union between a man and a woman is unconstitutional because it violates the constitutional guarantees of equal protection and due process, United States v. Windsor, 133 S. Ct. 2675, 2695-96 (2013), the Board of Immigration Appeals on July 17, 2013 issued the first official ruling holding that a spousal visa petition by persons of the same sex may be approved if the marriage is valid under the laws of the State where it was celebrated and if it is in good faith. Matter of Oleg B. Zeleniak, 26 I&N Dec. 158 (BIA 2013).

The Board, which reviews denials of visa petitions, said that Section 3 of DOMA, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act (INA).

The National Benefits Center Director had denied a Petition for Alien Relative (I-130) by a U.S. citizen, Serge V. Polajenko, on behalf of the alien beneficiary Oleg B. Zeleniak, as his spouse.  Both parties are male. The petitioner appealed to the Board which remanded the record to the Director to determine whether the petitioner’s marriage is valid under State law and whether the marriage qualifies under the Immigration and Nationality Act.

Is shoplifting a deportable offense?

by Atty. Emmanuel Samonte Tipon 

“Thou shall not steal.” – Eighth Commandment

Apparently stealing is so abominable an offense in the eyes of the Almighty that He equated it with killing, adultery, and false testimony when He specified stealing as one of the major major offenses that warrant condemnation as a capital sin.

For many years immigration judges and appellate courts have made stealing (including shoplifting) a deportable offense by characterizing it as a crime involving moral turpitude. See, for example, Wong v. INS, 980 F.2d 721 (1st Cir. 1992) and Silva v. INS, No. 02-CV-8903, Dist. Ct., E.D. Pa, May 2003.

That is why when our office had a case involving an alien student charged with shoplifting for taking a sandwich from a refrigerated cabinet in a convenience store and eating it right there, I suggested to my son Noel who was handling the case to fight it otherwise the student would be placed in deportation proceedings. He said that the evidence of the prosecution was strong because the closed circuit television had recorded the event and the store clerk had declared that he saw the alien take the sandwich, eat it, and left the store without paying for it. Nevertheless, Noel said he would try to plea bargain with the prosecutor so that the alien would be charged with a non-deportable offense. I cannot disclose what the plea deal was. The student was saved from deportation.

Crime involving moral turpitude is a ground for removal

by Atty. Emmanuel Samonte Tipon

The Immigration and Nationality Act (INA) provides that any “alien convicted, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a crime involving moral turpitude . . is inadmissible”. 8 U.S.C. Section 1182 (A)(2)(A)(i)(I).

The INA also provides that any alien who is “convicted of a crime involving moral turpitude . . . committed within five years (or in the case of an alien provided lawful permanent resident status . . ) after the date of admission, and is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.” Furthermore, “any alien who at any time after admission is convicted of two or more crimes involving moral turpitude . . . is deportable.” 8 U.S.C. Section 1227(a)(2)(A)(i-ii).

An interpreter translated into Ilocano the term “crime involving moral turpitude” (CIMT) as “crimen iti moralidad nga torpe” (crime of moral stupidity). However, “turpitude” has nothing to do with stupidity, unless one considers committing a crime “stupid”.

Can police force DUI suspect to give blood sample?

Atty. Emmanuel Samonte Tipon 

A motorist was stopped by a police officer for speeding and crossing the centerline. The officer asked him to take a breath test to measure his blood alcohol concentration (BAC) but he refused. The police arrested him and took him to a hospital for blood testing. He refused to consent to the blood test. The officer ordered a lab technician to take a sample of the motorist’s blood, which was above the legal limit. The motorist was charged with driving while intoxicated (DWI). He moved to suppress the blood test result on the ground that the taking of his blood sample without a search warrant violated his Fourth Amendment right.

The trial court ordered the blood test result suppressed. The state supreme court affirmed, citing Schmerber v. California, 384 U.S. 757, which held that a DWI suspect’s warrantless blood test is valid where the officer “might reasonably have believed that he was confronted with an emergency in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.’” The state court said that this case was a routine DWI investigation and that except for the natural dissipation of blood alcohol, there was no factor suggesting an emergency, and therefore the warrantless test without the motorist’s consent violated his right to be free from unreasonable searches of his person.

Immigration reform: Be careful what you wish for

by Atty. Emmanuel Samonte Tipon

There are a number of people who believe that immigration reform will cure the nation’s ills, including some Filipinos. “Be careful what you wish for ‘cause it might come true,” as the song by Gabby La La goes. The cure may be worse than the problem.

Sources from the Gang of Eight senators who are crafting an immigration reform bill indicated that the 4th preference category covering petitions by U.S. citizens for their brothers and sisters will be eliminated apparently to make room for increasing the visas available for employment-related visas. This category has been a great source of joy for many Filipino immigrants who want to be reunited with their siblings. Their joy will now turn to sorrow if this immigration bill will be enacted. How will they be able to reunite in the “land of milk and honey” with their siblings.

Instead of supporting the bill, Filipinos should oppose it. There is a movement in Hawaii to get signatures to a resolution opposing this provision of the bill. This writer is not involved in this movement. This writer is totally opposed to this proposed immigration reform bill because it promotes lawlessness and harms our law abiding immigrants.  It is nothing but an attempt by certain Democrats to increase their membership by adding eleven million new voters. Their belief is that these eleven million will be so grateful that they will always vote Democratic.  If the RINOs (Republicans In Name Only) support this bill, the Republican Party is doomed to be the minority party forever. Sen. McCain lost the election in part because many Republicans who believe in “law and order” did not support him believing that he was playing footsie with then Sen. Kennedy on a “path to citizenship” (aka amnesty) for illegal aliens.