Filipino captures Hawaii GOP chairmanship

 Shirlene Ostrov

A Filipino, Shirlene De La Cruz Ostrov, who recently retired as a Colonel in the U.S. Air Force, captured the chairmanship of the Hawaii Republican Party (Grand Old Party or GOP) at a tumultuous convention on the island of Kauai on May 13.

Ostrov’s election is significant in a number of ways. She is the first Filipino to lead a state organization of one of the major political parties in America. 

She was fighting the entrenched establishment of the Republican Party in Hawaii who had put up an incumbent state legislator, Andria Tupola, as their candidate. As we told Ostrov, “if this were a beauty contest, you would win hands down.” She won 265 to 111 because of good strategists, like Miriam Hellreich, Republican National Committeewoman for Hawaii. They conducted a grass roots operation among the delegates. The majority of the GOP in Hawaii also wanted a person with proven leadership qualities and a vision for the party. More significantly, the GOP sought a leader who could attract non-Caucasians to join, especially the Filipinos who are the biggest non-white voting bloc in Hawaii. 

Shirlene’s only political experience was as a U.S. congressional candidate for the first district of Hawaii. She said that she ran against overwhelming odds because she did not want the election to be uncontested. As it turned out, she could not prevail against a well-known, well-funded, and union backed Democrat who had previously served in the House of Representatives – Colleen Hanabusa.

Shirlene Ostrov and some Filipino supporters L to r: Sam Sonson, Emmanuel S. Tipon, Shirlene de la Cruz Ostrov, Dr. Remedios Sonson, Miriam Hellreich, an unidentified Caucasian supporter, Ditas Guillermo Udani, and other supporters from the Big Island of Hawaii.

(Photo: Shirlene Ostrov and some Filipino supporters
L to r: Sam Sonson, Emmanuel S. Tipon, Shirlene de la Cruz Ostrov, Dr. Remedios Sonson, Miriam Hellreich, an unidentified Caucasian supporter, Ditas Guillermo Udani, and other supporters from the Big Island of Hawaii.)

OSTROV’S GOAL FOR GOP

The Hawaii Republican Party is the minority party in Hawaii. Ostrov said that she sought the chairmanship “because I want to help build our Party to become the true opposition party in this state. Now we’ve obviously got a steep hill to climb. With only five Republicans in the State House of Representatives and none in the Senate, we struggle to get our voices heard. And we aren’t represented in our Congressional Delegation, a daily tragedy for Hawaii with Republicans in control of the U.S. House and Senate, and the White House.

In an op-ed in the Honolulu Star Advertiser on May 4, Shirlene was quoted as saying: “The Hawaii Republican Party is not just the party of no, nor are we simply the party of tax cuts. I believe we’re the party of aloha and ohana. . .We are the party that wants to see every resident thrive so they can build their business, family and community without excessive government interference. That’s the future we see for Hawaii.”

Shirlene, who, since her retirement, has become a business executive, and a co-founder of a non-profit Hawaiian Cultural School in the National Capitol Region said: “I think Hawaii’s Republicans have an excellent opportunity to rebuild and offer voters a real choice.  My intent is pure and simple.  I don’t have a private agenda. I am not seeking fame or fortune, I am not pursuing other positions at this time.  I simply want to serve the party in a full-time manner to help the Republicans take their rightful place in Hawaii. 

Shirlene pointed out that “the most critical aspect of building a solid foundation is to get the party on a firm financial footing.  We are supposed to be a sharp contrast to the Democrats, offering viable, workable alternatives that energize the state’s residents to want our solutions and not continue with what we already know doesn’t work.  Our financial underpinning helps us speak our message broadly, and I know we are at a critical financial crossroads today.  In fact, I believe that this is one of the main reasons why the Hawaii Republican Party has been in decline for the last few years and it will be a primary area of focus for me as chairman.”

Immediately after her election as chairman, Shirlene went to Washington, D.C. to meet with Republican Party leaders and communicated with them her plans for the party in Hawaii. She said that they expressed their optimism and committed to providing support and resources to rebuild the local party.

Even the Honolulu Star Advertiser, a pro-Democrat newspaper, has taken notice of Shirlene. It published a ¾ page interview of Shirlene in its May 26 issue. And on May 16, the Start Advertiser published an editorial titled “Root for isle GOP to regain footing”. The editorial pointed out that “The state needs more individuals with distinct perspectives to enter the political conversation, holding power but not beholden to the entrenched leadership of the majority party. Long-term incumbency means public servants who worry too little about service to the electorate.” The editorial went on to state that “Ostrov, born and raised in Hawaii, is a retired Air Force colonel; leadership experience is a plus, even given her lack of elected office.” Unusual words of wisdom coming from the Star Advertiser. I might postpone cutting off my subscription.

Shirlene Ostrov and Emmanuel S. Tipon

(Photo: Shirlene Ostrov and Emmanuel S.Tipon)

ATTRACTING FILIPINOS TO THE REPUBLICAN PARTY

   Shirlene stressed that “Education and outreach in the community is key to our success as a party.  Not only will we increase transparency and accountability within party leadership, but sharing our points of view will attract more members from the growing ranks of disillusioned or disengaged Independents and Democrats looking for a conservative home.  We need those numbers in our party and their votes in the next election, votes that will come from the conservative cultures and people the Democrats have taken for granted.  Two districts out of 51 are Districts 28 and 29, the Kalihi and Palama areas. Those areas are 78% Filipino, and not only are they the largest voting bloc in Hawaii, they are also very, very conservative.  They are Democrats now, but they are starting to understand that their voting habits are clashing with their conservative culture.  Education in the community will attract people whose family values and cultural background align more naturally with the Republican Party, if they hear us talk with them regularly as we share our message.  With a diverse staff that starts with a broad range of ideas, we will articulate a message that covers the values and issues most people in our state care about and that the opposition isn’t even paying attention to.

PERSONAL AND FAMILY BACKGROUND

Shirlene’s father is from Batangas and her mother is from Bulacan. Her father joined the U.S. Navy in the Philippines, became a U.S. citizen in 1962 and settled in Hawaii. Shirlene was the fifth of 8 children (6 girls and 2 boys). Shirlene was born and raised in Mililani, among the pineapple fields of Central Oahu, Hawaii. She said that her parents raised a “very tight-knit Catholic, conservative and patriotic family” who taught their children “to defend the institutions and the virtues of character that make the pursuit of happiness possible.” Shirlene recalled that  “the kitchen table discussion revolved around the different ways to secure the blessings of liberty to ourselves and our posterity. It was an easy decision for me to serve my country in the United States Air Force.” 

She served for 23 years and retired as a Colonel.  As a seasoned Logistics Readiness Officer, she held command and staff positions at the U.S. Air Force and  

and Department of Defense. She served as the Commander of an Aircraft Maintenance Squadron, and as the Commander of an Air Mobility Squadron unit in the Pacific.  She  commanded the 376th Expeditionary Mission Support Group, providing air combat power projection throughout the CENTCOM Area of Responsibility, and also served as a hub for strategic airlift operations and as an intermediate staging base for transiting personnel and equipment in support of operations in Afghanistan. She served the U.S. State Department in support of the U.S. Special Envoy to Sudan and also served as the Legislative and Interagency Liaison for USTRANSCOM in Washington DC.  She likewise served as the Chief of the Global Combat Support Division at Headquarters, Pacific Air Forces.

 Among Shirlene’s military awards are the Legion of Merit, Bronze Star, Defense Superior Service Medal, Air Force Meritorious Service Medal, Joint Service Commendation Medal, and Air Force Outstanding Unit Award.

Shirlene earned a Bachelor’s Degree in Political Science from the University of Florida, an MBA in Management from Troy State University and a Masters of Arts in Organizational Management from George Washington University.  

She married her husband Mark Jacob Ostrov in 1990 and they have twin daughters, Jessica and Julia who are 16 years old.  

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Permanent Residence Still Possible After Petitioner’s Death

By Attorneys Devin Connolly & Nancy E. Miller

The death of a close family member is obviously a very difficult time in a person’s life. This is even more true when the death results in both the loss of a beloved family member and the loss of the potential to become a permanent resident status in the U.S. (Green card).  Under the Immigration and Nationality Act (INA), an approved visa petition is automatically revoked when the petitioner dies before the beneficiary is issued a green card.  The law is harsh but not absolute.  A person may still be able to get their green card despite the petitioner’s death. 

Section 204(l) of the INA allows people to still be granted their green cards if they are able to demonstrate that they meet certain eligibility criteria as stated in the INA.  In order to qualify under Section 204(l) of the INA, the immigrant beneficiary must have resided in the United States at the time of the petitioner’s death and must continue to reside in the U.S.  Prior to this important change, only certain widows and widowers who were petitioned by their U.S. citizen spouse were granted the opportunity to obtain permanent resident status after the death of the petitioner.  

The first issue that must be resolved surrounds the definition of “residence.”  As stated above, the beneficiary of the visa petition must actually reside in the U.S. at the time of their family member’s death.  They will not be eligible under INA 204(l) simply by being physically present in the U.S. on the exact day that their relative passed away.  Rather, it is required that they maintained a residence in the U.S. at the time of the petitioner’s death.  However, it is not required that they were physically present in the U.S. on the date of death.  Thus, an immigrant beneficiary may still be eligible for adjustment of status if they were actually abroad when the petitioner died, so long as they can establish that they were actually residing in the U.S. at the time of the petitioner’s death.  It is also important to note that the law does not require that they have lawful status in the U.S. at the time of death.  

There are also other requirements that must be established in addition to residence.  These including demonstrating that the beneficiary deserves a favorable exercise of discretion and that they have an acceptable substitute sponsor.  Finally, Section 204(l) of the INA may also provide immigration benefits for more people than just the beneficiary named on the petition.  It may also allow the named beneficiary’s spouse and children to be granted permanent resident status. 

In some instances, the deceased family member was also the only or primary qualifying relative for a needed waiver of a ground of inadmissibility.  Section 204(l) allows the beneficiary to continue to pursue the waiver with the deceased family member as the qualifying relative. 

Section 204(l) of the INA is clearly greatly beneficial to many people.  Unfortunately, though, not everyone qualifies.  For those beneficiaries who are not eligible to apply for adjustment of status under INA 204(l), they still have the opportunity to apply for “Humanitarian Reinstatement.”  

As stated earlier, the underlying petition is automatically revoked upon the death of the petitioner.  However, “Humanitarian Reinstatement” provides hope for those family members living abroad that waited patiently for their immigrant visa petition to become current.  A request for “Humanitarian Reinstatement” is a request that the petition be reinstated on humanitarian grounds.  If the request is granted, the beneficiary, and potentially his or her spouse and children, will be permitted to continue with the Immigrant Visa process and reunite with their remaining family members in the United States.  

The United States Department of State’s Foreign Affairs Manual provides a list of factors the USCIS should consider in evaluating requests for reinstatements.  These factors include, but are not limited to, whether there will be a disruption of an established family unit; any potential hardship to U.S. citizen or lawful permanent residents; if the beneficiary is elderly, has strong family ties to the U.S., or is in poor health with no home to go to, and whether there was an undue delay in the processing of the petition. 

The death of a loved one can devastate a family.  And, for some prospective immigrants, the death may also threaten to further tear apart the family unit.  But it is important to remember that immigrating to the U.S. may still be possible despite the death of your close family member.  Anyone who has lost a petitioning family member prior to obtaining their green card should consult a knowledgeable and experienced immigration attorney to find out whether they can still obtain lawful permanent residence.

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Is USCIS sitting on your immigration petition? Sue the @#$%^&* with a mandamus action

You have filed your immigration petition for your beautiful beloved with USCIS, but USCIS has been sitting on it. Rival suitors are knocking at your beloved’s door, saying “Your balikbayan lover is a fake. He has not filed a petition for you. It has been a year and you still have no news about it. Let us go out and have fun.”

Your beloved sends you the above Facebook message. What are you going to do? You are getting desperate. You cannot control the events happening abroad. What if your beloved succumbs to the temptation to go out with other suitors. What if ….. Patay kang bata ka

Here is what you can do. First, follow up the petition with USCIS. Second, make an appointment on InfoPass to talk to an immigration officer in person. Write to your U.S. Senator or congressman to help find out the status of your petition? (Unfortunately in Hawaii, not one of them is a Republican, so your guess is as good as mine as to what weight they carry). All that USCIS says is that your petition is under process. 

There is a book called “Sue the Bastards” by Gerard P. Fox. It analyzes the pros and cons of suing those who do you harm. After reading it, you feel like Hamlet – “To be or not to be.” (To sue or not to sue). If you really love your so-called “beloved” (wife or fiancée) and want to protect your interest, damn the cost and the problems of suing, just sue the USCIS for sitting on your immigration petition by using a mandamus action.

The term “mandamus” is a Latin word “we command”. “It is a writ or order that is issued from a court of superior jurisdiction that commands an inferior tribunal or individual to perform, or refrain from performing, a particular act, the performance or omission of which is required by law as an obligation.” The Free Dictionary by Farlex.

JURISDICTION

Under 28 U.S.C. §1361 “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the petitioner.”

This statute simply provides a forum for filing mandamus against an officer of the United States. However, it does not provide a legal ground for suing. The person suing, in this case the petitioner, must allege a legal basis for the suit and standing to bring it. 

The Administrative Procedure Act (APA) 5 U.S.C. §§ 551 et seq. provides a cause of action for the petitioner where the USCIS unreasonably delays the adjudication of a petition or application. “The APA requires federal administrative agencies to address matters presented to them within a reasonable time. 5 U.S.C. § 555(b) ("With due regard for the convenience and necessity of' the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. . . ."). The APA further states that federal courts "shall . . . compel agency action unlawfully withheld or unreasonably delayed. . . ." 5 U.S.C. § 706(1). Belegradek v. Gonzalez, 523 F. Supp. 2d 1364 (N.D. Georgia)

In Razaq v. Poulos, No. 06-2461-WDB, 2007 WL 61884, at *3 (N.D.Cal. Jan. 8, 2007), the court said: "We find that the USCIS has a mandatory duty to decide whether to grant or deny 1-130 Petitions. . . . While the substance of the decision whether to grant or deny a petition obviously is discretionary, the duty to process the application is just as obviously ministerial." Thus, while mandamus is available to compel a USCIS officer to act on a petition, it cannot compel the officer to act or decide in a particular way, that is, it cannot compel the officer to grant the petition.

WHAT CONSTITUTES UNREASONABLE DELAY

"[T]here is no bright line rule as to when a delay on an application slips into the realm of unreasonableness." Linville, 489 F.Supp.2d at 1282 (quoting Elmalky v. Upchurch, No. 3:06-CV-2359-B, 2007 WL 944330, at *6 (N.D.Tex. Mar. 28, 2007)). In determining whether the Attorney General unreasonably delayed in adjudicating an application to adjust immigration status, courts have applied a rule of reason, considering: (1) the source of the delay, (2) the complexity of the investigation, (3) whether any party participated in delaying the proceeding, (4) the nature and extent of the interests prejudiced by the delay, and (5) whether expediting action on agency activities will have an adverse affect on higher or competing priorities. See Linville, 489 F.Supp.2d at 1282-83; Razaq, 2007 WL 61884, at *6; Bartolini v. Ashcroft, 226 F.Supp.2d 350, 354 (D.Conn.2002).” Belegradek v. Gonzalez, 523 F.Supp. 2d 1364 (N.D. Georgia). 

ALLEGATIONS OF PETITION

Earlier this week, a Caucasian colleague asked us to assist in filing a petition for mandamus to compel USCIS to adjudicate an I-130 petition filed by an alien’s U.S. citizen spouse which had been pending in the USCIS for more than a year.

The petition has been filed alleging the following:

1. Introduction, nature, and purpose of the action.

2. Jurisdiction – U.S. District Court. See 28 U.S.C. § 1361 (mandamus statute), 28 U.S.C. § 1331 (federal question), 28 U.S.C § 2201 (declaratory judgment).

3. Venue (where to file petition) – any judicial district where respondent resides, or where petitioner resides, or where a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C § 1391(e). 

4. Parties – Petitioner is the person who filed the Visa Petition that has been unadjudicated. Respondents are: the Secretary of the Department of Homeland Security, the USCIS Director in Washington, D.C., the USCIS Director of the Service Center where petitioner filed the Visa Petition. Their office addresses should be provided.  

5. Cause of action and standing (a) clear legal right of the petitioner to the relief demanded, (b) clear legal and ministerial duty of the respondent to perform the act sought to be performed, See 5 U.S.C. §§ 551 et seq. (Administrative Procedure Act), (c) exhaustion of all other remedies available, (d) absence of any other remedy available, except mandamus, (e) irreparable injury to petitioner because of respondent’s unreasonable failure to act and perform a duty owed to petitioner.   

6.  Claim for attorney’s fees and costs pursuant to 28 U.S.C § 2412.

7.  Prayer for relief – request court to order respondent to process petition or application, to furnish petitioner with a copy of the order granting or denying the visa petition, to order respondents to pay attorney’s fees and costs, to award such other relief as may be just and proper. 

8. Verification of petition by petitioner.

Summons on respondents. In addition to serving the petition on the above-named respondents, service of the summons should also be made on the Office of the General Counsel, Department of Homeland Security, Washington, D.C. 20258. 

Filing requirements. Petitioner or his Counsel must read the Federal Rules of Civil Procedure and the U.S. District Court local rules.

Filing fee. There is a filing fee. Petitioner or his Counsel should check the amount with the District Court where he intends to file the petition.

COMMENT AND SUGGESTION: In a previous case where a District Director unreasonably refused to adjudicate an application for adjustment of status, we prepared a complaint for mandamus, naming him as one of the respondents, and showed the complaint to him. He asked for a week to review the complaint. In less than a week, the adjustment of status was granted. However, do not try to bluff a District Director that you are going to file a complaint, unless you know him well and unless you have a copy of the complaint to show to him, the filing fee in your hand, and your attorney’s fees paid by the client.  

(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, 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 politics of impeaching a president

We hear the word impeachment mentioned more frequently in both the United States and the Philippines these days although it is very remote at this time that the sitting presidents of both countries will be impeached. 

In March, an opposition lawmaker filed an impeachment complaint against President Rodrigo Duterte calling for the president’s removal from office citing high crimes, betrayal of public trust, and abuse of power as the basis for his impeachment complaint. 

The justice committee of the Lower House recently dismissed the impeachment charges against President Duterte for “insufficiency in substance” related to the president’s alleged role in the state-sponsored killings and the Davao Death Squad, as well as his administration’s alleged inaction to uphold the country’s sovereign rights over the West Philippine Sea, Panatag Shoal, and Benham Rise. 

For now, President Duterte will not be the subject of an impeachment trial unlike former president Joseph Estrada who was charged with plunder and perjury during an impeachment trial in the Philippine Senate in December 2000.  However, President Estrada was ousted from office in January of 2001 during a popular uprising in Metro Manila after his aborted impeachment trial.

Will President Duterte suffer the same fate?  

I doubt it.  Not at this time.  President Duterte enjoys strong support from lawmakers of both houses and if the social survey results are correct, it appears that he still holds a high trust rating among the people. 

But the rising death toll as a result of the extrajudicial killings going on in the Philippines will surely hurt his popularity later on.  Like the failed social experiments and painful experiences in Thailand and Colombia, the Filipino people will soon realize that mass killings simply do not work and that there are more creative and productive solutions in dealing with the drug menace without killing the poor, the voiceless, and the powerless.   

History has taught us that the rule of law is vital to progress and a country will not move forward without it because those in power will be the first ones who will engage in corruption and acts that are detrimental to the best interests of the nation if the rule of law is absent and missing.

The rule of law is the world’s best hope for building peaceful and prosperous societies according to former United Nations Secretary-General Ban Ki-Moon.  Even Philippine CJ Maria Lourdes Sereno spoke about the dangers of lawlessness and impunity which she said represents a breakdown in governance. 

I hope that President Duterte will find it alarming that 45 of the 47 members of the Human Rights Council expressed deep concerns about the human rights situation in the Philippines.  I hope also that he will listen to the Council’s call for his government to investigate the extrajudicial killings that have been going on since he took office and since his war on drugs started.  

  In President Donald Trump’s case, unlike President Duterte, his trust rating has been very low since he took office.  But like President Duterte, President Trump enjoys strong support from his Republican party mates and allies in both the House of Representatives and the Senate (unlike President Richard Nixon who resigned before the House could vote on the impeachment resolutions against him when his political support was completely eroding and collapsing and the Democrats enjoyed the majority vote on his impeachment).    

Many legal and constitutional experts assert though that the conduct of the U.S. president poses a danger to the nation’s democratic system of government. 

It is alleged that the firing of FBI Director James Comey obstructs the investigation on the claimed Russian connection and influence in the results of the 2016 presidential election--- and the taped conversation with former-director Comey they allege may be classified as a form of intimidation and obstruction of justice. 

Will a Trump impeachment complaint prosper?  Like in President Duterte’s case, impeaching President Trump is tough and remote for now--- but there is a stronger possibility after the 2018 mid-year election if the dominant party in Congress changes. 

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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Supreme Court Tacitly Allows New Limits on Aliens’ Rights

 

By Attorneys Lorella T. Hess & Nancy E. Miller

Most aliens in the United States are entitled to a hearing before an Immigration Judge if the government seeks to remove them, however those who entered the country illegally and have been here for a short time are subject to a process called expedited removal.  As its name indicates, the expedited removal process is designed to move quickly.  Usually the alien is not even able to consult an attorney and the final decision is made by an immigration officer during one interview.  

Last month, the U.S. Supreme Court decided not to review a case which raised questions about whether aliens caught up in the expedited removal process have certain constitutional rights.  In that case, Castro v. D.H.S., the U.S. Court of Appeals for the Third Circuit ruled that families in expedited removal proceedings, who had applied for asylum, could not seek habeus corpus petitions to challenge their detentions in court.  A writ of habeas corpus (Latin for “you have the body”) requires the government to bring a prisoner into court and justify the legal basis for his or her detention. 

Immigration law scholars and human rights organizations filing amicus (“friend of the court”) briefs argued that the Supreme Court should take up this case because the Third Circuit’s decision threatens the rights of many people already inside the United States.  There are two main reasons for concern.  First, serious flaws have been documented in how the expedited removal system actually operates.  Also, the scope of that system is being expanded by the Trump administration, which plans to apply expedited removal over a much wider geographic area and to include aliens who have been present in the United States for up to two years.

For well over a century the Supreme Court has held that “even aliens shall not be . . . deprived of life, liberty or property without due process of law.”  Constitutional due process protections—which include the right to a hearing—apply to “all persons” within the United States.  The only exception is that aliens arriving at a port of entry, even though they are in fact geographically inside this country, are subject to the legal fiction that they were stopped before the border and have not yet entered the U.S. 

The Third Circuit’s Castro ruling classified women and children apprehended several miles inside the United States (who had avoided a port of entry) under the legal fiction that they had not yet entered, and then also held that they did not have the right to challenge their detention with habeas corpus petitions.

Habeas corpus scholars submitted another amicus brief urging the Supreme Court to take up this case, arguing that the right to file a habeas corpus petition “turns on the extent to which the government exercises control of the petitioner’s person and not on [the petitioner’s] status as a citizen, noncitizen, or alien seeking asylum.”    

Indeed, the very same Supreme Court decision which established the legal fiction that, for due process purposes, an alien at a port of entry has not yet arrived in the United States, also acknowledged that such an alien “may by habeas corpus challenge the validity of his exclusion.”

However, because the Supreme Court did not agree to hear the Castro case, the Third Circuit’s holding stands and is binding throughout that circuit, which includes Delaware, New Jersey, and Pennsylvania.  

Other U.S. Courts of Appeals have ruled differently in the past, and their rulings remain binding within their circuits.  California is in the Ninth Circuit.  The most recent rulings from the Ninth Circuit on this issue affirm the entry fiction as traditionally understood, and safeguard constitutional protections for people who have crossed the border into the United States, even if they have done so illegally.

The Third Circuit’s ruling could affect those in other Circuits.  Recent arrivals apprehended in the Ninth Circuit could be moved to the Third Circuit and held in detention there, where they would be subject to Third Circuit law and thus unable to file habeas corpus petitions to challenge their detentions.  The asylum seekers in the Castro case were taken into custody in Texas (in the Fifth Circuit) before being moved to detention centers in Pennsylvania (in the Third Circuit). 

For this reason, it is important to try to prevent DHS from moving recent arrivals from the Ninth Circuit to a Circuit where the law is more harsh.  Legal  motions need to be filed to prevent such moves.  Those subject to expedited removal due to their recent arrival in the United States, or their loved ones, should immediately consult a knowledgeable and experienced immigration lawyer to determine what help is available for them.

 

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Motion for bifurcation (getting divorced sooner))

Divorces could take years and in California, at least six months minimum would be required. If you want or need to get divorced sooner, there is a Motion for Bifurcation in which a party asks the court to terminate the marriage and restore each spouse to their single status.

In some situations, the parties’ or the judge may order a trial to be bifurcated (an issue is “tried” separately). For example, if there is no agreement on, the court may require that legal and physical custody be determined immediately and separate these issues from the rest of the divorce case.

As for getting the divorce sooner—as noted above, six months minimum is required in California from the filing of the Petition to the status of being single (being divorced). Even with a bifurcation, you cannot divorce any sooner than six months after your separation date.

Why do this? One of the most prevalent reasons are that one or both of the spouses are remarrying or if one or both of the spouses wants to file as a single person on their taxes. If your divorce case has been open for a significant period of time and no resolution seems to be near, filing for a bifurcation of marital status will allow you to return to your status as a single person but it will not resolve all the other issues that are still contested in your divorce.

For a spouse who is paying any kind of support (child or spousal) this is beneficial. The support is 100% deductible on income taxes, but only if you are filing as a single person and the person receiving the support must then list the payments as income on their taxes.

Even if the request is granted, you or your spouse may still need to meet certain conditions:

If one spouse maintains medical insurance, he/she must continue to do so;
If either spouse has a pension plan through their employer, the other spouse receives indemnification for the loss of death benefits;
The opposing party must be reimbursed for any tax consequences of the loss of the right to claim probate homestead or family allowance.

If you want to take advantage of a bifurcation, be sure to file the necessary paperwork as early in the year as possible and no later than November 15, of that year.

Additionally, before you can file this motion, a Preliminary Declaration of Disclosure consists of serving a completed Schedule of Assets and Debts and Income and Expense Declaration on your spouse.

The effects of a bifurcation are that your marital status will be terminated, you can remarry without having to wait for a final judgment on the remaining issues, your name can be restored to your maiden name, and you will be able to file your income taxes as single or head of household.

If you have any comments or questions, 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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What is Trumpcare for?

Life is not fair, as they say. I believe that this also goes true when we talk about the present threat to Obamacare and access to quality and affordable health care in the United States.
The “broken” healthcare system before President Barack Obama was voted into office needed sweeping reforms because compared to what European countries and
Canada have, the U.S. lagged behind in terms of providing affordable health care to its people.
This was one of the more important missions of President Obama when he assumed office. Immediately he took the lead in having the Patient Protection and Affordable Care Act, also known as Affordable Care Act (“ACA”) and Obamacare, passed into law. And on March 23, 2010, the 111th U.S. Congress responded positively and passed the ACA.
The ACA which took effect on January 1, 2014 has a noble purpose--- to provide affordable health coverage to more Americans. And consistent with President Obama’s “change we can believe in” mantra, the ACA also hopes to change the way health insurance companies provide coverage (as well as the way consumers purchase their policies).
By giving more Americans access to affordable and better health coverage, the ACA also aims in the long term to reduce the U.S. government’s health care spending.
So far, ACA has enrolled and has given health care access to more Americans and it has been widely accepted and supported. Just look at the favorable surveys that it has been receiving (including from people and Republican voters who were opposed to it earlier). But after the electoral victory of President Donald Trump and the Republicans gaining control of Congress, sweeping policy changes in healthcare are again expected. It is clear that Republicans will repeal one of President Obama’s major accomplishments as president.
Indeed Republicans in the lower house acted swiftly and fast following the lead of President Trump. They fast tracked and recently passed the legislation to repeal and replace major parts of the ACA.
Why? Is there something wrong with President Obama’s Affordable Care Act?
Whatever happened to “If it ain’t broke, don’t fix it?” ACA is only on its third year. It is not perfect but it works. Certainly there is room for improvement and there are parts that can be enhanced to make it better. So why the need to repeal and replace it?
To repeal and replace ACA is beyond my comprehension and most Americans should feel the same way too. The last “major health care law” before ACA, the federal law for the health care of those who are 65 years old and older (the Medicare and Medicaid programs) was passed on July 30, 1965 under President Lyndon B. Johnson. This 1965 health care reform law was an amendment to the Social Security Act of 1935.
ACA became law in 2010, almost 45 years after the Medicare and Medicaid programs were put into place. During the 50th celebration of the anniversary of this amendment to the Social Security Act of 1935, the centers for Medicare and Medicaid services marked the anniversary of the programs by recognizing the ways in which Medicare and Medicaid have transformed the nation’s health care system over the past five decades.
Notice that in the five decades after the Medicare and Medicaid law was passed, Republicans never moved nor succeeded in “repealing and replacing” Medicare and Medicaid. It makes perfect sense. Why oppose these programs that have been protecting the health and well-being of millions of Americans for the past 50 years? These programs aside from saving lives have also improved the economic security of the U.S.
In President Obama’s ACA, health care access and coverage expanded to reach working class citizens who now can afford and enjoy having health coverage benefits.
Also, a past Republican president, President George W. Bush, even signed into law the Medicare Modernization Act (MMA) which added outpatient prescription drug benefits to Medicare recipients.
The ACA was upheld by the U.S. Supreme Court on June 28, 2012 after a strong challenge from the Republicans. So why repeal and replace it now? Why not just expand and improve it? Really, what is Trumpcare for?
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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Why Become a U.S. Citizen?

Some of the Many Good Reasons

By Reeves Miller Zhang & Diza, A PLC

Becoming an American citizen is the culmination of the American dream. A citizen can shape American politics through voting. Citizens have greater ability to convey immigration benefits to family members. In fact, in some circumstances, children automatically gain citizenship when their parent naturalizes. Unforeseen circumstances which cause one to be out of the United States for extended periods of time can result in charges of abandonment of immigrant status - but not of citizenship. It is also important to remember that non-citizens, even those who have lived here for decades, can be deported for violating American laws. U.S. citizens cannot be deported unless they lied to get earlier immigration benefits or they give up their citizenship.
To be eligible for naturalization, the immigrant must be a lawful permanent resident; be at least 18 years of age; have continuously resided in the United States as a green card holder for 5 years (3 years if married to and living in marital union with a U.S. citizen spouse or if green card was obtained because of battering or extreme cruelty); be physically present in the U.S. for at least one-half of the residency period; and be a person of good moral character. The immigrant must also demonstrate an ability to read, write and speak English and knowledge of American history and government (civics).
Absences from the U.S. as a result of military commitments or because of work for the U.S. government may not count against the residency or physical presence requirement. In addition, waivers are possible for some who are unable to learn English or civics.
Upon taking the oath of allegiance, the new citizen’s lawful permanent resident children under the age of 18 automatically become citizens as well. Citizens can file petitions for a parent, spouse, or unmarried child under the age of 21 without dealing with visa backlogs. These immediate relative categories allow the beneficiary to complete their immigration processing in the United States, even if they are currently out of status as long as they entered with inspection. In addition, citizens can file petitions to immigrate their siblings and their married sons and daughters. These categories have long been targets of those who would like to narrow immigration benefits. One who has family members in these categories should file for them while they can.
Some immigrants delay filing for citizenship under the mistaken belief that their unmarried adult children will face a longer visa waiting period as an unmarried son or daughter of a U.S. citizen than if the parent had remained a lawful permanent resident. This belief is erroneous because the unmarried sons and daughters may elect to “opt-out” of the U.S. citizen category to take advantage of the shorter waiting period. This “opt-out” benefit is only available where the parent filed the original petition before naturalizing.
Delaying an application for citizenship can have adverse consequences. A green card is not a permanent benefit. It can be lost. A green card holder who has spent more time out of the U.S. than in it can be denied admission for having abandoned their immigration status. They may have to fight in immigration court to keep their green card. However, U.S. citizens cannot be accused of abandonment.
Not everyone who has had their green card for 5 years and has lived here for more than half that time should apply for citizenship.
Certain criminal convictions result in a loss of green card and deportation. An immigrant with a criminal record may invite deportation by filing for naturalization. However, waivers may be available in some circumstances that would allow the immigrant to either remain a green card holder or even obtain citizenship. An immigrant who is convicted of an aggravated felony before November 29, 1990 and obtains a waiver may qualify for citizenship.
Someone who misrepresented a material fact to get a green card is not a lawful permanent resident for naturalization purposes. Continuing the misrepresentation in the naturalization process can result in more serious complications. Here again, waivers of the misrepresentation are possible. One granted such a waiver may be able to both keep their green card and become a citizen.
Many questions arise when deciding to file for citizenship. Is a conditional resident a resident for naturalization purposes? Does one who has spent much time out of the U.S. on business meet the residency and physical presence requirement? How do past actions affect the good moral character requirement? Will applying for citizenship lead to being placed in removal proceedings? One should consult a knowledgeable and experienced immigration attorney to learn the answer to these questions, and more, before applying for citizenship.

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ADMINISTRATIVE HEARINGS FOR REVOCATION OF PROFESSIONAL LICENSES

Professional licensing agencies may suspend or revoke a license issued for reasons enumerated in the California Business and Professions Code (BPC). For many who have criminal convictions, whether they are doctors, nurses, contractors, they will be served and must defend against an accusation that impacts their careers and livelihood. I had a client come in recently who is a pharmacist and had an underlying drug-related arrest. I did not represent him in his criminal case and he represented himself in his administrative hearing.
The outcome of the hearing meant probation for 5 years with terms that are extensive and very rigid. It is critical to hire an attorney who is experienced in direct and cross-examination, gathering evidence and highly skilled in conducting hearings. In California, the Attorney General (AG) is the representative of the various professional licensing boards. Even prior to the date of the hearings, I worked with the Supervising Deputy AG in providing her mitigating evidence such as character letters and evidentiary documents lessening the culpability of my client.
Even though an early termination of probation and a criminal expungement may not be conclusive in getting the Board to withdraw the accusation, it is an important factor that enables the judge and the board to reconsider the gravity of the charges.
If the board or its designee asks a licensee to provide criminal history information, a licensee shall respond to that request within 30 days. The licensee shall make available all documents and other records requested and shall respond with accurate information.
As a condition of renewal for a license that expires on or after April 1, 2009, a licensee who was initially licensed prior to 1/1/98, or for whom an electronic record of the submission of fingerprints no longer exists, shall furnish to the Department of Justice (DOJ) fingerprints for the purpose of conducting a criminal history record check and to undergo a state and federal level criminal offender record information search through the DOJ.
A licensee shall disclose whether, since the licensee last applied for renewal, he/she has been convicted of any violation of the law in CA. or any other state, the United States, or other country, omitting traffic infractions under $300 not involving alcohol, dangerous drugs, or controlled substances.
I have just mentioned some of the general criminal background checks that are in effect. It is critical that if you have been arrested of a crime, a review of your employee manual is necessary since reporting it to a supervisor may be mandatory. For example, for nurses, sections 2520.4 and 2520.5 of the Vocational Nursing, California Code of Regulations, both the licensee and the employer must report of any act listed in the BPC, Sections 2878, 2878.1 and 2878.5. The report shall be made to the board within a required time period a violation had occurred.
For licensed individuals, in all sorts of professions, if you have been arrested and subsequently convicted of a crime it means facing both the criminal and administrative consequences. It is important that the attorney that you hire for the administrative hearing be aware of the rehabilitation criteria. The Board has the final decision to revoke, suspend, or place the licensee on probation. Keep in mind as well that the facts of the underlying criminal case must be adequately explained to the board and the witnesses for the administrative hearings are generally the same for the administrative hearing.
Having the same criminal and administrative attorney represent the client in both venues is a benefit. I find that since I have knowledge and information about the criminal case and the reasons for the disposition and other critical information are available to me, it is more advantageous to my client. Frankly, to some of my clients, the board hearing is more stressful for them since it ultimately means their livelihood is at stake. While the criminal case if of equal importance, to many they know there is a conclusion to the criminal case. But if their license to work is taken away, it means their professional life is destroyed.
Thus, when the Board considers the disciplinary actions that should be implemented, the attorney must be able to advise the administrative judge of the rehabilitation possibilities of an individual article. If you are personally experiencing such issues, call me immediately 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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TPS as a Pathway to a Green Card

By Attorneys Nancy E. Miller and Michael Bhotiwihok

In Ramirez v. Brown, the Ninth Circuit recently held that a Temporary Protected Status (“TPS”) recipient is eligible to adjust to legal permanent resident status in the United Status. The Ninth Circuit reasoned that receiving TPS deems an individual to be in lawful status and satisfies the nonimmigrant requirements, such as inspection and admission, for adjustment of status purposes.
In Ramirez, a dispute arose over whether being a TPS designee provided a pathway to obtaining lawful permanent residence status under the adjustment statute. The United States Immigration and Citizenship Services (“USCIS”) found Ramirez ineligible to adjust to lawful permanent resident status on that ground that he last entered the country without inspection therefore he had not been inspected, admitted or paroled as required by Immigration and Nationality Act (“INA”) Section 245(a). The Ninth Circuit held that being a TPS designee provides a pathway to a green card. Residents in the Ninth Circuit who are TPS recipients now can adjust to lawful permanent status in the United States instead of consular processing in a foreign country.
INA Section 245(a) requires that an applicant prove that he or she has been inspected and admitted (or paroled) before being eligible to adjust status to lawful permanent residency. Because of the Ramirez decision, TPS recipients who entered the United States without inspection are now considered admitted and qualify for adjustment of status under INA Section 245(a) provided they have an independent means of immigrating.
Prior to the Ramirez decision, adjustment of status to lawful permanent residency in the United States could be achieved by proof of a legal entry, an exception under INA 245(i), advance parole, or parole based on a family member in the United States Armed Forces.
The Ninth Circuit decision is significant because of the geographic reach of the large number of TPS recipients affected in California, Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska, and Hawaii. Further, TPS recipients do not have to leave the United States and consular process through a United States Embassy or Consulate. Families are kept together and lives continue in the United States.
The Ninth Circuit joins the Six Circuit in finding that noncitizens with a grant of TPS who entered the country illegally are eligible to apply for a green card in the United States. However, the Eleventh Circuit is at odds with the Ninth and Sixth Circuits thereby creating a split. Until the conflicting decisions are decided by the United States Supreme Court, there will be inconsistent application of immigration law among the Circuit Courts and throughout the country.
TPS may be granted by the USCIS to foreign nationals due to conditions in their country, such as a natural disaster or civil war, which prevent the foreign nationals who are living in the United States from returning safely to their country. The Department of Homeland Security has currently designated the following countries for TPS: El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, Syria, and Yemen.
TPS status allows foreign nationals to live and work in the United States without the fear of being removed/deported. TPS is a temporary benefit that does not directly lead to a green card. However, registration for TPS does not prevent one from applying for nonimmigrant status, adjustment of status based on an immigrant petition, or any other immigration benefit or protection.
For TPS recipients outside of the Sixth and Ninth Circuits, attention must be directed to monitoring current pending cases in their respective jurisdictions. For example this year, in Bonilla v. Johnson, the United States District Court, District of Minnesota, held that a grant of TPS satisfies the threshold requirement of admission for purposes of becoming eligible for adjustment of status to a lawful permanent resident.
In addition, TPS recipients should consider alternative routes to obtaining a green card. The Provisional Unlawful Presence Waiver (“Provisional Waiver”) allows beneficiaries of immigrant visa petitions who were not inspected and admitted to the United States to apply for a waiver of the ten-year bar that will be triggered by departing the country to apply for an immigrant visa abroad. The Provisional Waiver allows applicants to know whether their waiver is approved or not before departing the United States. Thus, the uncertainty and risks of leaving the United States to consular process are alleviated. The Provisional Waiver decreases the time that families are separated and keeps families together during the consular processing of an immigrant visa.
Any TPS recipient should seek the advice of an experienced and knowledgeable immigration attorney to discuss his or her immigration options and eligibility to obtain a green card in the United States.

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