The need to refocus the Filipino ‘national agenda’

Filipino students learn early on in their history and social studies classes about the people, the significant dates and places, and the events that helped shape the Philippines as a nation.
During the month of August for example, we remember the “Cry of Pugad Lawin” in 1896 that was led by Andres Bonifacio of the revolutionary Katastaasang Kagalanggalangang Katipunan ng mga Anak ng Bayan (“Katipunan”). Before the Katipunan uprising, Bonifacio wrote a poem with the title “Katapusang Hibik ng Sangkatagalugan” (The last appeal of the Philippines)---
“Mother, in the east is now risen, the sun of the Filipinos’ anger, that for three hundred centuries we suppressed, in the sea of suffering and poverty.”

Then on August 13, 1898, poet Amado Hernandez wrote--- “Ganito ring araw nang agawan ka ng laya, Labintatlo ng Agosto nang saklutin ang Maynila,” in his work “Kung tuyo na ang luha mo, aking bayan,” as he expressed his thoughts, feelings and opposition to American colonialism and imperialism.
Fast forward to August 2017 and we are witnesses to the rare occurrence of a solar eclipse as the moon passes between the sun and the earth. For a moment, the bright sky darkens and where the sun should be, we see a black circle ringed by a halo of light instead.
In the Philippines the “dark skies” these days that people see and witness is not a natural phenomenon. I refer to the “obsession of killing people” in the name of the war on drugs perpetrated by unknown motorcycle-riding vigilantes and allegedly by some members of the Philippine National Police who have made numerous claims that the victims “resisted” and that they were left with no choice but to shoot and kill.
The family of the late Sen. Jose W. Diokno, a human rights and democracy icon and a fellow detainee of Sen. Ninoy Aquino who was fatally shot at the airport tarmac on August 23, 1983, released a statement recently about the gross human and civil rights violations that are taking place in the Philippines in the name of the government’s war on drugs. The Diokno family stated---
"ENOUGH of the slaughter of mostly poor Filipinos. Enough of the perversions of law in the name of the war on drugs. Killings, rather than the arrests and prosecutions mandated in our laws, have become the standard operating procedure of law enforcement. The murder of Kian de los Santos, and the deaths of thousands before him, show how little the government values the lives of Filipinos, and how much contempt it has for the law.

It is time to speak out against the killings. Silence abets murder, and we will have none of both. The Diokno family, guided by the principles of our parents, pledges to stand for justice and human rights. We lend our voices to the raging cries of the thousands killed and call on the government to comply with the Constitution and laws of our country, and stop the bloody war on drugs, which has only resulted in death, and has not reduced the influx of drugs into the country. We invite all Filipinos to stand with us, for love of country, justice and human rights."

The archbishop of Manila, His Eminence Luis Antonio G. Cardinal Tagle, also asked the Filipino people to reflect, to pray, and to act in response to the increase in the number of people who have been killed as a result of the “intensified war on drugs” in the Philippines.
It appears that the only strategy of the government is to “conduct police raids” in poor residential areas while it continues to ignore the need to seek a joint solution with the country that is said to be the primary source of illegal drugs in the Philippines. What about closing the access of big-time drug lords to the country’s piers and ports?
While illegal drugs remain a problem, the nation has lost its national focus on the more telling and important problems that it must face and tackle--- poverty, lack of education, territorial dispute with China, access to affordable health care, high-level corruption of government officials, Manila traffic, and unemployment--- problems that have made drugs attractive to some people because they feel hopeless.
The “crimes of the poor” became the national focus and agenda while problems that have caused more damage to the nation, to the people, and to the national psyche and soul of the Filipino people have been ignored and not dealt with.
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.

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‘We cannot go back to our dark past’

America is again reminded of its dark past after the violent clashes between white nationalists and counter protesters last week. In Charlottesville, a hit and run attack on protesters resulted in the tragic death of a 32-year-old woman, including injury to 19 people.
President Trump in response said the following after the incident: “We condemn in the strongest possible terms this egregious display of hatred, bigotry, and violence on many sides.”
There is a bold resurgence of white supremacism in our midst.
The call to organize last Friday and Saturday was for a huge rally and gathering of white nationalists, neo-Nazis, alt-right activists, members of the Ku Klux Klan, and far right extremists to protest the planned removal of the statue of General Robert Lee of the Confederate Army that is situated in Charlottesville’s Emancipation Park.
Racist and hate slogans were chanted and heard during the rally--- “You will not replace us”--- including taunts against African Americans, people of color, Jews, immigrants, Muslims, LGBTQs and people who the white supremacists believe have no place in American society. Their issue is based on the belief and premise that America is a white nation, that being white is supreme and superior to other races, and that America’s problems and maladies are brought about by multiculturalism.
They take President Trump’s “Make America Great Again” slogan as a pledge to recover their “vanishing privilege and power” and thus their slogan proclaimed “You will not replace us.”
“You will not replace us” is not a new coined phrase. Even in our own immigrant story in America, Filipinos were classified as U.S. Nationals earlier and were not given any rights and privileges that Americans enjoyed. Like the Chinese who were subjected to an Exclusion Act by U.S. Congress, Filipinos as nationals were subjected to hate and discriminatory signs that were posted in businesses and commercial establishments (“No Filipinos or Dogs Allowed,” “Positively No Filipinos Allowed”).
Carlos Bulosan in his book “America Is In The Heart” gave very vivid tales and stories about the sufferings that Filipinos faced during his time because of racism. Hate is a scary thing. Hate kills. Hate is a dead-end.
One columnist wrote that America’s past experience with racism is again being resurrected by the present administration--- “Donald Trump and his attorney general are attempting to enact and effectuate policies that ring in the key of ‘You will not replace us’ every single day. Their programmatic efforts to disenfranchise minority voters, gerrymander minority voting districts, end affirmative action, ban transgender soldiers from serving in the military, increase deportations, curb immigration, and foment racially discriminatory policing, sentencing, and incarceration systems are all the modern-day equivalent of this week’s ugly battle cry, ‘You will not replace us.’”
The union of states that is the United States of America is not only a union of white nations. It is also not a confederacy of slave-owning states. It is the union of states and of the American people founded on the belief and principles of justice and equality for all.
The tragedy in Charlottesville is a reminder to every American that we cannot go back to our dark past.
There is wisdom that we all can learn from the words of Chief Justice Earl Warren of the U.S. Supreme Court when he outlawed segregation in public schools and transformed many areas in American Constitutional Law jurisprudence many years ago--- “We are now at the point where we must decide whether we honor the concept of plural society which gains strength through diversity, or whether we are to have bitter fragmentation that will result in perpetual tension and strife.” America has a painful past when it comes to bigotry and racism and we should not stop learning from our history and from the lessons of our past in order to protect our present and our future.
In a just nation that values fair play and equality, white supremacism has no place.
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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Suing a foreign country for extrajudicial killings

The U.S. State Department issued an official report on the country conditions in the Philippines in 2016 which states in part: “President Rodrigo Roa Duterte, elected in May, began the first year of his constitutionally limited six-year term on June 30. . . . Since July police and unknown vigilantes have killed more than 6,000 suspected drug dealers and users as the government pursued a policy aimed at eliminating illegal drug activity in the country by the end of the year. Extrajudicial killings have been the chief human rights concern in the country for many years and they increased sharply over the past year. https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper

There is at least one mother in Hawaii whose son, who was suspected of being a drug user, was reportedly the victim of an extrajudicial killing in Ilocos Norte, Philippines after President Duterte came to power. Can the mother sue the Republic of the Philippines for the extrajudicial killing of her son and recover damages? 

The following case, decided yesterday, August 14, 2017, by the U.S. Court of Appeals for the Second Circuit, will help her answer the question. Vera v. Republic of Cuba, No. 16-1227, 08/14/2017.http://www.ca2.uscourts.gov/decisions/isysquery/2f53f9cc-b029-462b-9193-71e3c202cc47/1/doc/16-1227_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2f53f9cc-b029-462b-9193-71e3c202cc47/1/hilite/ 

Aldo Vera, Jr. sued in a Florida state court the Republic of Cuba for the extrajudicial killing of his father, the former police chief in Havana, in San Juan, Puerto Rico, on October 25, 1976.  Vera, Sr. had fled Cuba in the 1960s and engaged in counterrevolutionary activities in Puerto Rico and Florida.  Vera Jr. alleged that agents acting on orders of the Cuban government executed Vera’s father. 

Vera Jr. obtained a default judgment for §95 million against Cuba which did not appear in the action. Although foreign states are generally immune from the jurisdiction of the United States under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 USC §§ 1602 et seq., the Florida court held that Cuba was subject to suit under a statutory exception to immunity in 28 USC § 1605(a)(7), known as the “terrorism exception”. The exception authorizes suits against foreign states that sponsor certain acts of terrorism, such as extrajudicial killings and torture. 28 USC § 1605A(a)(1). 

The Florida court found that Cuba ordered the extrajudicial killing of Vera’s father in retaliation for his participation in the anti-communist movement and that Cuba was designated to be a state sponsor of terrorism in 1982 and remains so designated. 

Vera then filed a complaint against Cuba in the United States District Court for the Southern District of New York seeking recognition and entry of the Florida judgment pursuant to the Full Faith and Credit Act, 28 USC § 1738. Cuba failed to appear in the federal action and the District Court entered a default judgment against it for approximately §45 million. 

Vera served information subpoenas on the New York branches of certain foreign banks, including BBVA. The bank refused to comply with the subpoenas’ request for information regarding Cuban assets and moved to quash the subpoena. It argued that Vera’s default judgment against Cuba was void for lack of subject matter jurisdiction under the FSIA and that the District Court lacked personal jurisdiction over BBVA. The District Court rejected BBVA’s challenge and ordered it to provide full and complete answers to Vera’s request for information on Cuban assets located in BBVA’s branches in and outside the United States. The court held BBVA in contempt when it refused to comply. BBVA appealed.

28 USC § 1604 bars state and federal courts from exercising jurisdiction when a foreign state is entitled to immunity.  28 USC § 1330 confers

jurisdiction on federal district courts only if one of the exceptions to immunity applies.

28 U.S.C. § 1605A eliminates sovereign immunity and permits suits

directly against a foreign state in any case in which money damages are sought against [the] foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if . . . engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her

office, employment, or agency.” 

Even if a foreign state has engaged in one of the terrorist acts described above, however, it is not subject to suit in the United States unless the foreign state

was “designated as a state sponsor of terrorism at the time the act . . . occurred” or was later “so designated as a result of such act.” Id. § 1605A(a)(2)(A)(i)(I).

The Court of Appeals held that the District Court lacked subject matter jurisdiction over Vera’s action against Cuba because Cuba was not designated a state sponsor of terrorism at the time Vera’s father was killed in 1976, and Vera failed to establish that Cuba was later designated in 1982 as a state sponsor of terrorism as a result of his father’s death. Accordingly, the FSIA’s terrorism exception to sovereign immunity – the only potential basis for subject matter jurisdiction in this case – does not apply. Therefore Cuba was immune from Vera’s federal action and the District Court had no jurisdiction to enter judgment against Cuba and to enforce the subpoenas. 

(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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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 a prenuptial agreement can be attacked and found invalid. A premarital agreement is unenforceable if a party against whom enforcement is sought proves either of the following: (1) consent was involuntary; (2) the agreement was unconscionable.

I have a client that was not represented by an attorney at the time she signed the agreement and needed an Italian translator. She is conversational in English but due to the legal terms used in the agreement should have had a translator provided. In fact, she did request that the documents be provided to her in Italian too—but was never provided to her.

The court will strongly scrutinize the facts on a case-by-case basis factors that the judge will review are if a party is not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party. That the party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations and could not have reasonably obtained adequate knowledge of that information.

The issue of whether an agreement 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 of signing the agreement or after being advised to seek an attorney, expressly waived, in writing, representation. (2) party had less than 7 calendar days between the time that the party was first presented with the agreement and advised 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 not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into an agreement (5) and any other factors the court deems relevant.

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

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

A court may refuse to enforce a term of a premarital agreement if in the context of the agreement taken 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 party because of a material change in circumstances arising after the agreement was signed (Uniform Premarital and Marital Agreements Act, Section 9 (f))

The hearing requesting invaliding a prenuptial agreement is a complex matter and highly contested. Be prepared, 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.

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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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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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