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.

Spare the rod, spoil the child, and avoid child abuse charge

Atty. Emmanuel Samonte Tipon 

“He that spareth his rod hateth his son: but he that loveth him chasteneth him betimes.” Proverbs 13:24.  King James Version. “Withhold not correction from the child: for if thou beatest him with the rod, he shall not die.” Proverbs 23:13.  King James Version.

This means, according to “Got questions?org” that the Lord uses discipline to punish sin, and parents should likewise use discipline to punish a child for his sin. “When a child does not feel the consequence of his sin, he will not understand that sin requires punishment.”  However, the Bible does not say when parental discipline becomes child abuse.

The issue of parental discipline and child abuse is a constantly recurring issue.  When I lived in San Francisco, I heard the story of a consular officer’s child who was about to be belted by his father. The child exclaimed “If you hit me, I will call the police and report you for child abuse.”  “Go ahead,” retorted the father, “I am not afraid. I have diplomatic immunity. You need to be disciplined.” Recently, a football player was indicted for alleged child abuse by beating his 4-year old child with a tree branch resulting in cuts and bruises throughout his body.

Parental responsibility for child’s wrongful act

by Atty. Emmanuel Samonte Tipon

On August 25, twin 7 year old children were reportedly playing with a cigarette lighter when they started a fire in the Makakilo area in Honolulu. Fortunately no homes were burned but the forest behind the homes continues to burn a week later. Their father appeared on television looking contrite and apologetic.

We have received a number of calls on the potential civil liability of the parents for the misconduct of their children.

If parents can vicariously claim an honor like “Parents of the Year” for the achievements of their children, should they not be held vicariously responsible for the tortious acts of their children?

State law governs parental responsibility for children’s misconduct. For a link to the Parental Responsibility Laws in all 50 States, see here.

Hawaii is a pioneer in legislation on parental responsibility. As early as 1846, when Hawaii was still a kingdom ruled by King Kamehameha, a Hawaii statute provided that “The father and mother of unmarried minor children shall jointly and severally be liable in damages for tortious acts committed by their children, and shall be jointly and severally entitled to prosecute and defend all actions in which the children or their individual property may be concerned.” The modern version of this statute is found in Section 577-3 of the Hawaii Revised Statutes.

Five things you should know before pleading guilty

by Atty. Emmanuel Samonte Tipon 

“Why should I plead guilty when I’m not guilty,” retorted former First Lady Imelda Marcos, when her first lawyer advised her to plead guilty to charges of racketeering, conspiracy, obstruction of justice, and mail fraud for allegedly purchasing four buildings in New York with Philippine government money.  Her lawyer reportedly told her that he could negotiate a plea bargain agreement so that she would get not more than five years in jail rather than twenty years if she went to trial and lost. Mrs. Marcos, incidentally, is celebrating her 85th birthday today, July 3, 2014. She was acquitted on her 61st birthday, July 3, 1990.

Mrs. Marcos’ friend Doris Duke, a multimillionaire heiress, called Honolulu attorney Ron Oldenburg to look for another lawyer. Oldenburg talked with and recommended Gerry Spence, a well-known criminal defense attorney. Mrs. Marcos retained him. Spence hired private investigators to look into the background of the potential government witnesses to be used in cross-examining them. When certain witnesses learned that derogatory information about them had been discovered, they quickly fled back to Manila.

“There was no evidence,” said the jury forewoman, Catherine Balton. “It was a totally silly case,” said Thomas O’Rourke, another juror. New York Times, July 3, 1990. “Jurors called the government's case inadequate, and some were apparently convinced that political factors influenced the prosecution.” Los Angeles Times, July 3, 1990. After the verdict, Gerry Spence, who did not present a single witness for the defense, said, ''This just proves that a single juror has more power than the United States Government itself.'' New York Times, July 3, 1990.

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.

Let him who is not a racist cast the first stone

by Atty. Emmanuel Samonte Tipon

“Everyone makes judgments based on race. Everyone is a little bit racist, it’s true. So everyone stop being so PC [politically correct].”
--“Avenue Q” (a musical “satirizing the issues and anxieties associated with entering adulthood”). 2004 Tony Award winner.

Is there anyone who is not a racist, who has not made or laughed at ethnic jokes? Filipinos are among the most racist in the world. Listen to Filipinos make jokes against the Chinese, Indians (Bombay), Japanese, even Ilocanos.

Donald Sterling, owner of the basketball team Clippers, allegedly was “ranting and raving” against blacks. He was doing neither. He was jealous of Magic Johnson because he had a picture with his inamorata circulated on the internet. He was pleading with her:  All I ask is that you do not broadcast it on Instagram.

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.

Ilocano wins case against ineffective counsel

by Atty. Emmanuel Samonte Tipon

Is there any Filipino who has accused his criminal defense attorney of ineffective assistance and won? If you know of any, I would like to meet you, the winning Filipino, and his lawyer and treat all of you to dinner in the best steak house in Honolulu.

Why? (1) Lawyers are reluctant to accuse a colleague of ineffective assistance lest the accused gets back at the accuser, (2) The chances of winning are very slim, and (3) It takes time, money, and considerable effort.

Last Monday (December 9) my son Noel and I won a case in the U.S. Court of Appeals, Ninth Circuit on behalf of a Filipino by charging his criminal defense attorney with ineffective assistance that resulted in the removal of the alien. Case No. 10-72815, U.S. v. Ramiro. We wrote about the oral argument we made in the case in “Arguing successfully in appellate courts” in the November 2013 issue of this publication.

Ramiro, an Ilocano from Bacarra, Ilocos Norte, was with his “barkada” (Filipino slang for “group of friends”) when one of them shouted that somebody wanted to buy drugs. Ramiro did not want to become involved and threw away a plastic packet. Another picked it up and gave it to the one who shouted. The latter then gave it to the buyer who turned out to be an undercover agent.

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?

Supreme Court sidesteps reverse discrimination issue

Atty. Emmanuel Samonte Tipon 

Does consideration of race in a state university’s admission process violate the equal protection clause?

The University of Texas at Austin considers race as one of the factors in its undergraduate admissions process in pursuit of its commitment to increase enrollment of racial minorities. That program was adopted following the U.S. Supreme Court (“Supreme Court”) decisions in Grutter v. Bollinger, 359 U.S. 306 which upheld the use of race as one of many “plus factors” in an admissions program that considered the overall individual contribution of each candidate and Gratz v. Bollinger, 539 U.S. 244, which ruled as unconstitutional an admissions program which automatically awarded points to applicants from certain racial minorities.

Fisher, a Caucasian, was rejected for admission to the 2008 entering class of the University. She sued the University and school officials alleging that the university’s consideration of race in admissions violated the equal protection clause of the U.S. Constitution. The District Court granted summary judgment for the University. The Fifth Circuit Court of Appeals affirmed and upheld the University’s admissions program, saying that prior decisions of the Supreme Court required courts to give substantial deference to the University, both in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal.