Month: September 2010

Categories
Global Pinoy

PNoy on the Undocumented Immigrants and the Veterans

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Aside from his well publicized comfort food eating experiences with hotdog, hamburger and pizza, PNoy definitely had accomplishment in his first US trip. He gave an opportunity for Filipino Americans to voice out their concerns as immigrants. Both popular networks, ABS-CBN and GMA7, provided a forum for the community to have this dialogue.

ABS-CBN through The Filipino Channel (TFC) held a town hall meeting of global Filipinos in the US, Canada, Dubai and London. While GMA Network, through a more intimate setting, held a “one on one” interview with PNoy on various issues affecting Filipino immigrants. All these happened a few hours before PNoy’s scheduled return to Manila last September 26.

PNoy appeared contented to report the accomplishments of his trip. Among them,  the $2.7B investments and pledges of US-based companies to generate 10,000 jobs in the Philippines. Listening to these developments, many overseas Filipinos would be happy for the jobs that are expected to soon be generated by these grants and investments. The first thing that comes to mind would be the potential employment for relatives and friends residing in the Philippines who will benefit from these projects. Maybe, the Filipino senior citizen who was present at the town hall meeting and asked if there is any future in the Philippines, will be more inclined to return to the Philippines after being jobless in California for a long time.

PNoy was happy to know that Filipino immigrants have sincere concerns for the homeland. He said that, “Natutuwa ako at naramdaman ko ang malasakit ng mga Filipino sa America.” Despite having resided for many years in the US, the sentiment of the majority of first generation Filipinos is still towards returning to the homeland.  

There were many positive accomplishments of PNoy’s US trip. The commitment of many investors, grantors and businesses is clearly of economic value for the country. However, there are also questions that were unanswered. This left us immigrants thinking of what actually is the position of PNoy’s administration on the issue of undocumented Filipinos as well as the veterans’ issue.

Undocumented Immigrants

The hundreds of thousands of immigrants who have decided to live and work abroad either for family or economic reasons face many difficult challenges. They have to find suitable jobs to sustain their standard of living and be able to continue assisting their families left behind in the Philippines. There are also restrictive immigration policies and enforcement thereof to deal with. At the town hall meeting sponsored by ABS-CBN, at least two groups raised the question on how PNoy may assist the undocumented immigrants. One group was skyping from London and the other group was from Los Angeles. As expected from a head of state, PNoy said that he does not have anything to do with the immigration policies of countries like the United Kingdom and the United States. He mentioned, though, that there are “humanitarian and civil” rights that may be asserted.

Unlike the former President of Mexico, PNoy clearly distanced himself from the issue of immigration.  Mexico is the country with the most number of illegal immigrants. Based on a study published by the US Department of Homeland Security, the Philippines ranks number 5 in terms of unauthorized population int he US. While we do not have the exact numbers, there were definitely thousands of undocumented immigrants who were listening to PNoy as he responded to the question on this issue. Based on his response, there seemed to be a lack of “malasakit” for the undocumented Filipino immigrants.  While it is true that undocumented immigrants are in violation of immigration laws and it will definitely be awkward, if not embarrassing, for PNoy to support that part of the Filipino TNTs law breaking, the least that PNoy could have said was to express empathy and to mention that he will encourage President Obama to continue to pursue Comprehensive Immigration Reform with a path to legalization for the undocumented.  Former President Fox of Mexico expressed in clear terms his advocacy for change in US immigration policies in the interest of his nationals. We would expect nothing less from PNoy to also advocate for the undocumented Filipinos. After all, majority of the Filipino TNTs are also taxpayers and consumers who send billions in remittances to their families in the Philippines.

As overseas Filipinos, PNoy is our president too. We do not expect his administration to only assert “humanitarian and civil rights” after hardship has been imposed or harm has been done to undocumented Filipinos. More than that, we expect our President to lead and advocate for us. Undocumented Filipinos do not get the chance to sit with Barak Obama. PNoy does. Undocumented Filipinos, whose voices are not heard by the political establishment, deserve to have their President advocate for them.

The World War II Veterans

Host Sandra Aguinaldo asked PNoy during GMA Pinoy TV’s  “one on one” interview with him what assistance he could give to the Filipino World War II veterans, PNoy said he will look into this issue. He said that at the moment, his administration is concentrating on the issue of benefits to veterans and retirees given by the Philippine government. Not the issue of veterans benefits given by the US government.  

Since PNoy has no position yet on the issue of equity for the Filipino World War II veterans, it is this writer’s wish that PNoy re-examine this issue with a different perspective from that of the last administration. The grant of Lump Sum Benefits of $15,000 and $9,000 to surviving veterans is economically beneficial to aging war veterans but does not fully address the issue of full equity for deserving war veterans. In fact, even the lump sum benefits discriminate against those whose names are not on the Missouri List.  This controversy is now the subject of a pending federal lawsuit filed by Filipino World War 2 veterans against the US government.

PNoy’s US trip may be considered a fruitful one.  So many pledges and plans were discussed and if it comes to fruition will benefit the Philippines. The more than four million Filipinos residing in the US are likewise holding great expectations from him as the new leader. Majority, if not all, have sincere concerns for the homeland.  

PNoy, aside from just reporting about the country conditions and merely seeking help from overseas Filipinos, should also show concern for the same overseas Filipinos. Most of us are still Filipinos at heart who yearn for the leader’s “malasakit.” He may show this, as head of state, by becoming our fearless advocate for what is right for the veterans and what is just for all Filipino immigrants irrespective of status.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)

Categories
Updates

DHS Testing the Use of Eye Scanners in Texas

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The Department of Homeland Security has begun testing eye-reading
machines at one border crossing. The machines, which scan people’s
irises, is being tested in a two- to eight-week trial in McAllen, Texas
as part of a Homeland Security assessment of the new technology. The
goal of the testing is to see how the scanners work in an actual
Customs and Border protection setting.

“This is a preliminary test of how the technology performs,” said Amy
Kudwa, a spokesperson for the Department of Homeland Security. “We have
no specific plans for acquiring or deploying this type of technology at
this point.”

The U.S. Department of Defense currently uses similar scanners
at military locations in Iraq and Afghanistan. The newer versions of
these eye-reading devices, however, are able to identify multiple
people at one time from a distance of up to 30 feet.

Categories
Immigration Round Table

Long Time Undocumented Immigrant Wants to Receive Monthly SS Pensions

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Dear Atty. Lou,

My cousin is now here in the US and he decided not to depart anymore after triggering the 3-yr. & 10-yr. bars. He is working as an undocumented immigrant and is religiously paying his taxes. He has contributed 32 units to the Social Security as of 2009.

When he reaches 62 years old (assuming he is still undocumented by that time) but had completed 40 units of his contribution to the Social Security, can he retire and apply for his monthly pension? Granting that he can, can he bring it home to the Phil where he is going to stay for good? Thank you very much.

SDC

Dear SDC,

Undocumented immigrants generally are prohibited from receiving Social Security payments. Only US citizens and “qualified aliens” will be eligible for federal public benefits which include Social Security Title II. This provision of the Social Security Act provides a federal insurance program that grants benefits to qualified workers, and in some cases their dependents, who are elderly, blind or disabled. Eligible persons over the age of 62 can begin receiving partial Social Security retirement benefits, and those over 65, full benefits.

Qualified aliens include lawful permanent residents, aliens who are lawfully present and those validly issued employment authorization. In most cases, persons must have earned 40 qualifying quarter of coverage to be fully insured and eligible for benefits.

In the case of your cousin, he does not fall under a “qualified alien” for purposes of the social security monthly old age pension. I understand that he will earn 40 qualifying quarter of coverage. But meeting the 40 quarters is just one of the many requirements to qualify for the SS benefit. Hence, he will not be able to receive his social security pension.

Even aliens who are deported lose their Social Security benefits unless they are readmitted as lawful permanent residents. There are exceptions to this for which the Social Security Administration must be notified to retain benefits.

You did not mention how your cousin obtained his social security number. If he is using a social security number of another person or is using a fraudulent number, he will also be prevented from receiving SS benefits under Title II.  Using another person’s number is a criminal offense under the Social Security Act.

It must be noted, though, that as of the present time, there is an estimated $189B of monies paid into and set aside by the Social Security Administration paid by employees whose social security numbers do not match the social security records. What this means is that a large chunk of the social security monies is contributed by undocumented workers and the latter, somehow, appears to be a benefit to the social security administration. The only way the undocumented workers may cash out on their benefits, when the time comes, is for them to obtain legal status.  Hopefully, this may happen when the comprehensive immigration reform is passed into law.

Atty. Lou

(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)

Categories
Updates

Department of State Posts FY 2012 Diversity Visa Lottery Guidelines

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Rules and guidelines for the 2012 Diversity Immigrant Visa program have
just been published by the U.S. Department of State. For Fiscal Year
(FY) 2012, a total of 50,000 Diversity Visas will be made available to
people from countries with low rates of immigration to the U.S.

The annual DV Lottery program gives permanent visas to people that meet
a few simple eligibility requirements. These requirements include:

1) Applicants must be natives of a country whose natives qualify.
2) Applicants must have either a high school education (or its
equivalent) or two years of work experience within the past five years
that requires at least two years of training or experience.

For FY 2012, natives of the following countries are not eligible for
the lottery program, because these countries have sent more than 50,000
immigrants to the U.S. in the past five years:

BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC,
ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO,
PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM
(except Northern Ireland) and its dependent territories, and VIETNAM.

Please note that people born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
Learn more online at: http://bit.ly/aoHduH

Categories
Updates

Department of State Issues Updated Travel Warning for US Citizens Traveling to Mexico

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Earlier this month, the U.S. Department of State issued an updated
travel warning to U.S. citizens planning to travel to and live in
Mexico. According to the Department of State, while most victims of
criminal violence in Mexico are Mexican citizens associated with
criminal activity, the current situation poses serious risks to U.S.
citizens in the region as well.

As of September 10, the U.S. Consulate in Monterrey has removed all
minor dependents of U.S. government personnel and family members in
other areas of northern Medico had also been previously authorized to
depart.

While millions of U.S. citizens do safely visit Mexico each year, the
Department of State does strongly urge U.S. citizens to understand the
risks involved in travel to Mexico, how to best avoid dangerous
situations and who to contact if they become a victim of crime or
violence.

Categories
Updates

ICE Serves Hundreds of Notices of Inspection to U.S. Companies

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This week, Immigration and Customs Enforcement (ICE) served hundreds of
Notices of Inspection (NOI) to U.S. companies. These NOIs were served
as part of the Obama administration’s campaign to target the employers
of illegal immigrants. The NOIs give employers three days to submit
their I-9 documentation for inspection. In certain cases, an extension
may be granted.

So far this year, 147 employers have been
either criminally convicted or cited with worksite violations. Fines
for knowingly hiring an illegal immigrant can be from $1,100 to $16,000
per unauthorized worker, making it pertinent that employers follow
regulations and ensure proper validation of employees in their
organizations.

Categories
Immigration Round Table

Failure to Notify Change of Address May Be Tragic to Non-Resident

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Dear Atty. Lou,

My cousin Anne had a denied adjustment of status application. Before their interview, she separated from his US citizen spouse because of emotional and verbal abuse . His husband refused to appear for the interview and my cousin Anne went out of State without notifying the US Citizenship and Immigration Service of her change of address.

Without Anne’s knowledge she was ordered removed from the United States in absentia on January 15, 2010, after failing to appear at a hearing. Apparently, she was sent a Notice to Appear for a hearing at her former address.  She never received the notice. Her lawyer filed a motion to reopen on February 10, 2010, but the Immigration Judge denied this motion. Does Anne have a chance of staying in the US?  Recently, she reconciled with her abusive husband.

MGB

Dear MGB,

There is a provision in the immigration law that requires the non-citizens to notify the US Citizenship and Immigration Services of their change of address. There are legal consequences for failure to notify the USCIS of the change in address which include fine.

For an individual in removal/deportation proceedings, a Notice to Appear is sent to him so that he will be notified of the date of hearing. If the non citizen fails to notify the USCIS of his change of address, this Notice to Appear will be mailed at last known address of the non citizen. In this case, non receipt of the notice will still render the USCIS service valid and the non appearance during the hearing will result in removal order. This is called an in absentia order of removal similar to a judgment by default for failure to appear.

It is clear that there is an affirmative obligation on the part of the non-citizen to notify the USCIS of the change of address. In the case of Dominguez v. U.S. Att’y Gen., 284 F.3d 1258, 1259-60 (11th Cir. 2002) the court held that notice is statutorily sufficient if the NTA is sent to the most recent address provided by the petitioner, even if the petitioner has moved. This is the rule that is generally applied.

There are also cases that provided the opposite result such as the recent case of Matter of Jorge Anyelo, 25 I&N Dec.337 (BIA 2010) decided on September 13, 2010. The Court ruled that individuals cannot be ordered removed or deported in absentia until they are warned that they may be ordered removed or deported in absentia as a consequence of failing to inform the government of the of a change of address. The court applied the ruling in the case of in Matter of G-Y-R-,23 I&N Dec. 181, 189-90 (BIA 2001). This is consistent with Section 239(a) of the INA which requires the notice to contain warnings and advisals that the alien must immediately provide or have provided.

In the case of Anne, despite the non appearance for failure to appear, she may file a Motion to Rescind the in-absentia order of removal based on the ruling of the case in the Matter of Anyelo and Matter of G-Y-R. The law still requires notice of the warnings and advisals and Anne was not provided such notice. Hence, she stands a good chance of having her in-absentia order rescinded. Once it is rescinded, she may request that her adjustment of status based on her marriage to her US citizen spouse be renewed in court so she may be granted her green card.

I hope this information is helpful.

Atty. Lou

(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com)

Categories
Updates

Relief Offered to Certain Haitian F-1 Students

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U.S. Immigration and Customs Enforcement (ICE) has just announced a new
special relief program for some F-1 Haitian students who have been the
victims of severe economic hardship because of the January earthquake
in Haiti. This new relief applies to students who were lawfully present
in the U.S. at the time of the January earthquake and are enrolling in
an educational institution that is listed as certified by ICE’s Student
and Exchange Visitor program (SEVIS)

The new relief program will allow eligible Haitian F-1 students to work
in the U.S., work an increased number of hours during their school term
and reduce their course load, if necessary, while still maintaining F-1
status.

“We want to ensure that students from Haiti, who were here at the time
of January’s tragic events, are able to concentrate on their studies
without the worry of financial burdens created by the devastation of
the earthquake,” said Louis Farrell, director, SEVIS. “These students
have the full support of SEVP and designated school officials for
assistance.”

Categories
SideBar

Small Claims Court And You

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Clients hire their attorneys to help them with their legal problems. Sometimes, however, these legal problems may involve monetary damages with minimal amounts. Considering the high cost of litigation, it is sometimes not cost effective to have an attorney represent you in a legal dispute.  Thus, there are small claims court systems where legal disputes can be resolved by a judge more quickly and less expensively than the regular court system.

Different states have different small claims court systems. Our readers who reside in a state other than California should do their own research with their local courts. In California, however, who can avail of the remedies available in small claims court and what cases can be litigated?

Any person 18 years or older and who is mentally competent can sue in small claims court. An individual may sue for no more than $7,500 in a claim. Individuals using the small claims court need to be aware that if, for example, they were involved in a car accident suffering damages of $10,000, suing in small claims court limits their recovery to only $7,500 and the balance of $2,500 is waived. Also, individuals can only file 2 claims in a calendar year if the claims exceed more than $2,500. For claims below $2,500 each, individuals can file as many as they want.

In small claims court, you cannot be represented by an attorney during the hearing. Thus, it will not be as expensive to have cases litigated in small claims court as both parties will have to represent themselves and there will be fewer formalities.

The most common cases that you can take to small claims court are: car accidents, property damage, landlord/tenant rent deposit disputes, and collection of money owed. Depending on the amount of your claim, and the number of claims you’ve previously filed, court filing fees range from $30 to $100.  After a case is filed, a hearing will be set by the court usually within 1 to 2 months.

During the hearing date, some counties may have a dispute resolution program where parties are brought together to try to resolve their dispute amicably before it is heard by a judge.  If the dispute is not resolved amicably, the case will proceed to a hearing before the judge who will listen to both sides. Thus, should be ready to present their side of the story with their witnesses, photos, receipts, contracts, etc.  The judge may then and there make a decision or may mail a decision to the parties.

Once a decision is made, can you appeal the judge’s decision? You cannot appeal if you were the one who filed the claim. However, if someone else filed the claim against you and you lose, then you can appeal.  If you are allowed to appeal, you have 30 days to file a “notice of appeal” costing $75.  A new hearing will then be set and you will have to bring your evidence and tell your side of the story again. This time a lawyer can represent you.  It may or may not be worth it to pursue the matter depending on the amount disputed and the cost associated with pursuing the dispute.
    
(DISCLAIMER: material presented above is intended for informational purposes only. It is not intended as professional advice and should not be construed as such. Rey Tancinco is a partner at Tancinco Law Offices, a professional corporation with offices in San Francisco, Vallejo, and Manila. The law office website is at: tancinco.weareph.com/old.  Rey Tancinco can be contacted at (800) 999-9096 or (415) 397-0808 or via email at: attyrey@tancinco.com