Month: March 2010

Alma is now suffering from a terminal illness. She was referred to hospice care to ease her pain. Her doctor gave her only two months to live as her cancer cells had spread all over her body.

There is still one wish that Alma wants to realize before she passes away. She wants to testify in immigration court to save her husband Romeo from being deported.  Alma and Romeo have been married for more than ten years. As a US citizen, Alma filed a petition for Romeo. Her petition was denied because Romeo engaged in fraud at the time he entered the US in 1998.

To remedy the fraud, Alma filed for a waiver a few years back. One of the many requirements is that extreme hardship on the part of the US citizen spouse must be demonstrated. When Alma was not stricken with the terminal illness, her only hardship was the effect of physical separation from her husband. This reason was not enough to grant a waiver based on existing immigration service regulations; hence, resulting in the denial of the application.

Now that Alma is terminally ill, she wants to go back and revisit the waiver application of Romeo. This time she is truly experiencing extreme hardship. She insists on her deathbed that she will provide testimony to the immigration judge to explain her extreme hardship. As soon as she is able to convince the judge of her extreme hardship, Romeo’s petition will hopefully be approved. Approval of the waiver means that Romeo may continue to stay in the US and be issued a green card.

Romeo has been depressed about his current immigration status. He is in deportation proceedings after the Immigration and Customs Enforcement (ICE) incarcerated him for 30 days. Seeing his wife everyday suffer the excruciating pain of cancer caused him to loose hope. His prayer is for a miracle to happen. He constantly prays for her wife to recover. Romeo’s deportation case became a secondary issue. He thinks that it is now more important for Alma to live longer and be healthy again.

No Ground for Hope

For many distressed immigrants facing deportation proceedings or those who are continuing to live in fear for being undocumented, their everyday lives are considered a constant struggle.  While many have gotten used to their situation, there are a quite a number who have lost hope.  In many instances, death of the petitioner after many years of waiting also results in death of their dream to live legally in the United States.

Generally, the death of the petitioner results in the death of the petition. Unless there is a strong humanitarian reason to reinstate a petition, the beneficiary of an approved petition loses the opportunity to become an immigrant. Last year, the exception to this rule was enacted in October 2009.  In limited circumstances involving widows of US citizens and children of US citizen petitioners, a petition may survive the death of the petition. Most of the time this exception does not apply. And in instances where it is not applicable to the petitioned relative, death results in the end of the American dream.

In the case of Alma, the suffering and pain she is experiencing is unfolding into something positive for his loved one. As soon as she is able to show her extreme hardship, Romeo will be able to have his waiver approved and green card issued. Ironically,  Alma’s suffering can be used to support Romeo’s new waiver application.

There are US citizen petitioners who are enduring pain to allow their loved ones the opportunity to obtain their legal residency before they actually pass away. I know of an elderly veteran who withstood the discomfort of cold winter weather and cramped living conditions in the US just to ensure that his petition for his children will not be affected. He did not want to return to the Philippines because according to him, he would rather stay in the US and wait for his children to migrate. As soon as his children arrived, this elderly veteran died. His dream for his children to migrate to the US was attained but not without sacrifices.

New Beginnings

More than 11 million undocumented immigrants in the United States are awaiting for the dawn of a new immigration law that will relieve them of their current situation.  They wish for the day that a legalization program is passed into law when they can finally come out of the shadows to become legal immigrants.

This Easter Day, we are reminded that there is hope which is symbolized by the resurrection of our Lord. He conquered death so that we may all live and maintain hope.

For those facing death or are agonizing in pain, we believe that these sufferings will pave the way for new beginnings. Alma’s hardship shall become a corridor for a renewed hope for Romeo. Immigrants who have been enduring so many sacrifices may soon experience relief.  With every death and suffering comes a hope of a new life and beginnings. This is our Christian belief and we should rejoice in spring’s rebirth and Christ’s resurrection.  A happy and blessed Easter!

(Tancinco may be reached at 887 7177 or at law@tancinco.com)

The 90 year old war veteran who died on his way to getting his just reward is crying for justice from his grave. Mr. Fortunato Pacatang’s surviving children were denied the ability to inherit his lump sum benefit.

When President Barack Obama approved the $198 million appropriation last year for Filipino World War II veterans, many were elated and finally sighed “justice.” This amount was incorporated in the budget as part of the American Recovery and Reinvestment Package. It was part of the fund that was designed to “stimulate” the US economy.

For many advocates of Filipino veterans, this Filipino Veterans Equity Compensation fund of $198 million is a reward for the hard work and courage of our elderly veterans during the war.

If this is a “reward” for services rendered, why is it that not all veterans qualify for the benefit. How come Mr. Pacatang’s surviving heirs are not entitled to the ‘reward’ of the lump sum benefit?

Equity Bills Declined

When the Rescission Act of 1946 was enacted, the Filipino veterans who fought side by side with the American forces were divested of their status as a US war veteran. According to this 1946 legislation, the services of the Filipino World War II veterans during the war were not considered as “service for purposes of US VA benefits.”  Hundreds of thousands of Filipino veterans were adversely affected by this legislation. Despite the fact that they fought under the same war against a common enemy in defense of democracy, the Filipino veterans were considered as “second class veterans.”

In 1990 when Immigration and Nationality Act was amended to allow Filipino World War II veterans to become US citizens, their veterans’ benefits did not follow despite the fact that they were US citizens.

A legislation was needed to correct the injustice of the Rescission Act of 1946. Hence, beginning in 1993 bills were introduced in the US Congress to repeal the unjust provision of the 1946 Rescission Act. Various bills were introduced to classify the Filipinos as US veterans for purposes of VA benefits. The campaign to pass the Equity Bill was an uphill battle. Different legislators in Capitol Hill had different views about our greatest generation. Those who lived through World War II, like Senator Daniel Akaka and Senator Daniel Inouye of Hawaii, were supportive of the Filipino veterans cause. These supportive legislators maintain that Filipino veterans deserve to be treated equally as far as their US veterans. However, with a budget deficit resulting from the Bush Administration’s political and economic policy, an equity bill at the US Congress lost its chance to pass into law. Had this equity bill been passed into law, the Filipino veterans would have had their equal and just reward for their services.

As the administration changed, legislators supportive of the veterans cause came out with the proposition that instead of giving a monthly pension to the veterans, there would just be a one-time ”lump sum” payment to the Filipino veterans. This $198 million fund is known as the lump sum benefit or the Filipino Veterans Equity Compensation.

Lump Sum is Definitely a Compromise

A significant number of veterans benefited from this lump sum benefit. Approximately $150 million of the $198 million have already been disbursed to more than 12,000 Filipino veterans.  There are still pending approximately 14,585 veterans applications that are awaiting adjudication of their claims.

While this lump sum has already favored more than 12,000 veterans, the 8,713 that were denied and the remaining 14,585 awaiting their claims are now anxious on whether the will ever be able to receive their benefit under this FVEC.

It must be understood that since this is not an Equity legislation that attempted to correct the injustice emanating from the 1946 Rescission Act, this lump sum benefit has limited applicability and created further injustices especially to those brave veterans who passed away prior to the passage of the lump sum benefit.

Weeping Widows

Widows of Filipino veterans were the first group that cried “unfair” when they were told that they are not included in the lump sum benefits. These surviving spouses were married to true and legitimate veterans but were singled out to not receive any lump sum benefit.

Those who became widows after February 17, 2009 are still able to file for the lump sum benefit will still receive their husband’s lump sum check.

The difference between weeping widows and widows after the fact is that the latter’s veteran spouses survived the lump sum benefit. Death of the veteran before the enactment of the lump sum benefit became a ‘penalty’ for the weeping widows.

Surviving Children

One of the specific limitation in the provision of the legislation is that “only the surviving spouse” of the veteran may receive the lump sum check if the veteran passes away after filing the application. Children of the veterans are explicitly excluded from receiving the lump sum check.

This was what happened to the surviving children of the 90 year old veteran Mr. Fortunato Pacatang. His children are unable to claim any lump sum benefit from the deceased veteran who passed away while his claim was pending.

Survival of the Fittest

The case of Mr. Pacatang is reflective of the many cases of Filipino veterans and their families. The series of unfortunate event after his demise is a bitter disappointment for their surviving children who are forced to face their lamentable realities.

Last year, when the lump sum benefit was passed into law, we classified it as a “qualified” victory considering that it benefits certain veterans but does not have equal applicability to all who courageously served during World War II.  One year after its implementation, it has now become more obvious that this lump sum is not a reward for services but simply a financial aid only for “some” who are lucky to have lived the day of the passage of this law. Those veterans who did not survive the passage of the law were excluded.

The lump sum should not have been categorized as a veteran benefit but rather a contest for the “survival of the fittest”. The one who lives the longest with the spouse gets the prize. This lump sum is not about justice but simply an aid that is part of the stimulus package. The veterans deserve better.

(Tancinco may be reached at law@tancinco.com or at 887 7177)

Increase in Deportation Cases Give TNTs Opportunity to Reflect on their Options

Many years ago, a visit to the district office of the Citizenship and Immigration Services in San Francisco CA required one to fall in a long line before being able to enter. As soon as one gets in the immigration office for their green card or naturalization application, the applicant will have to wait many more hours inside a room full of applicants.

In recent months applicants for US citizenship, permanent resident status and other benefits are no longer as numerous as before.  However, the other office called the Executive Office for Immigration Review (EOIR), commonly called the Immigration Court, is full of foreign nationals who are appearing for their deportation or removal proceedings. A significant number of respondents from the Philippines are noticeable in the courtrooms.

One of those waiting to be called for his Master Hearing before the Immigration Court was Eduardo. After living in the United States for more than fifteen years, he received a Notice to Appear and to show cause why he should not be deported.

Eduardo worked as an engineer for a reputable company in the San Francisco bay area. In the early 90s, he entered the US on a visitor visa. Before the expiration of his status, he applied for political asylum.  For the last ten years, Eduardo was able to work but eventually his asylum request was denied.

When the judge asked Eduardo if he had any relief for staying in the US, he responded in the negative. He told the court that he was ready to go back to Manila and will not fight his case. He has not seen his wife and children for fifteen years. Eduardo opted for voluntary departure. He is not resentful. In fact, he was very excited to leave.

With the surge in deportation cases in the US, it is hard to determine whether all these deportees will be successfully removed to return to their homeland. But amazingly, there are a number of Filipinos who are just like Eduardo. They are ready to return to the homeland. For those who have been separated from their families, the economic crisis in the US had not given them further motivation to stay.

Increase in Deportation Cases

Enforcement of immigration law is at its all time high. Families are being separated forcibly because of the enforcement activities of the Department of Homeland Security.  Those who are without valid legal documents to stay and work are being put in deportation proceedings. Even applicants for naturalization who have prior immigration issues are not exempt from becoming a respondent in deportation cases especially if there are fraud and misrepresentation issues.

With the increase in immigration cases, the US immigration courts are experiencing a severe backlog in adjudicating these cases. The number of cases is up 82% from 10 years ago. There are now 228,421 cases in the first three months of 2010 and this number is increasing everyday.

To address the issue of backlog of cases, the US Department of Justice is hiring more immigration judges. According to the Transactional Records Clearinghouse, there is a shortage of judges and Attorney General Eric Holder is interviewing candidates to fill the vacancies.

The Department of Homeland Security should instead re-assess its policy on whether those in deportation proceedings are a threat to the US. Most of those that are being deported have been long time residents who have been able to establish their lives in the US with their family. There are also those who were educated in the US and possess skills that may contribute to the economic growth. They are, instead, being sent back to their homeland.

Number of TNTs Down

With the unemployment rate remaining high, there is a recent study that the number of undocumented immigrants has gone down. But this is true also for legal immigrants. Even if they are green card holders or US citizens, many have decided to return to their place of birth. The housing and health care crisis are also factors in deciding whether theses immigrants choose to remain in the US.

For those who have families in the US, departing will be a difficult option. But for those who have available choices, moving their families back to the Philippines may not seem to be such a difficult choice. The Philippines should be ready for the reverse migration of its nationals. Those returning come with valuable skills, education and experience. There should be programs developed for the returning immigrants, the true balikbayans.

Undergoing the deportation process may be humiliating to most deportees. But at least for a few deportees I have met, they have no qualms about returning. Eduardo claims,  “I shall return with my dignity intact. This immigration court need not force me to return to my homeland.”

(Tancinco may be reached at law@tancinco.com or at 887 7177).