Month: November 2010

Manuela is the widow of Felipe, a Filipino World War II veteran, who migrated in California in 1995. Fellipe petitioned her together with their two adult children. Only Manuela was able to migrate in 1995 while their adult children then remained in the Philippines waiting for their priority dates to become current.

In December 2008, Manuela’s children, Josie and Lily, were able to come to the US on a visitor’s visa. They were granted six months of authorized stay until May 2009. In February 2009, Felipe was excited when he learned about the lump sum benefit under the Filipino Veterans Equity Compensation act that was passed into law by President Obama. He applied for his $15,000 lump sum benefit as a member of a recognized guerilla.  Unfortunately, after two weeks from filing his application, Felipe suffered a heart attack and died.

Manuela requested her two children to stay in the US with her since she cannot live by herself. She also could not afford to depart for Manila because she is undergoing regular medical treatment for her illness. Josie left for the Philippines before the expiration of her stay but Lily decided to stay with her mother. Lily’s status as a visitor expired and she is now an undocumented immigrant.

In October 2010, Manuela received a letter from the Veterans Affairs denying Felipe’s claim for lump sum benefit. The letter states that Felipe’s name does not appear on the Missouri list as one of those recognized veterans. Manuela was surprised by this decision considering that Felipe became a naturalized US citizen because he was recognized by the US immigration service as a World War II veteran. Manuela, as the surviving spouse, filed a Notice of Disagreement to contest the findings. This denial caused Manuela additional grief and she indicated that her husband would be furious if he were alive. But looking at Manuela, she remained calm without remorse. She is hopeful that the VA would reconsider their decision.

Recently, Lily, also received documentation from the National Visa Center informing her that the petition filed by her US citizen father is now ready for visa processing. Her priority date on the petition is now current. Manuela knew that the petition is considered revoked since the petitioner passed away. She nonetheless sought legal advice and was told that Lily’s petition may still be processed because Lily was in the US at the time the petitioner died. The DHS Appropriations Act passed in October 2009 provided an exception to the general rule that the “petition dies with the petitioner.” The visa may still be issued despite the death of the petitioner if the beneficiaries of petitions were in the US at the time the petitioner died and that they continue to reside in the US.

Widow Remains Grateful

Manuela is thankful for the particular law that allowed her daughter to stay legally in the US despite the death of her husband. In addition, she expressed her deep gratitude to the US because she was allowed the opportunity to migrate as a result of the recognition of her husband as a war veteran. With the subsequent decision of VA refusing to deny her husband’s claim, Manuela said that she is grateful that there is a “lump sum” benefit and maintains faith in the US that his husband’s participation in World War II will soon be accurately verified.

Manuela’s views may not represent the sentiments of many other widows and surviving veterans who were denied of their just claims for lump sum benefits from the VA.  Several of those denied also are adamant about winning their appeal with the VA. But speaking to her, she would always find a way to be thankful despite her setbacks.  Her attitude of gratitude is truly admirable.

Hurt by Criticism

Last week, Washington lobbying groups informed us that the office of US Senator Daniel Inouye was disappointed by a lawsuit filed against the VA for the denials of lump sum benefit. According to Jon Melegrito of the National Alliance for Filipino Veterans Equity, “Hawaii Senator Inouye was hurt by criticism on the Filipino veterans equity compensation fund after all he did to help the Filipino Veterans”. Senator Inouye is the appropriations committee chair and one of the main allies that fully supported the Filipino Veterans Equity Compensation.

As a long time advocate for Filipino Veterans’ Equity, we cannot deny that Senator Inouye had always been there with us and stood by the principle of justice and equity for all Filipino World War II veterans. Thousands of veterans who are still residing in Northern California are very much thankful to the Senator for his support to the cause.

However, just like the widow, Manuela, while the veterans and the advocates are grateful to the Senator, the rights of those who were unjustly denied of their lump sum because their names are not on the Missouri list were brought to the federal court for determination of how the law is going to be interpreted. The case of De Fernandez et al v. VA (Case Number CV10-2468) filed in June 2010 is clear in what it seeks from the court.

De Fernandez case was not at all a criticism of the legislators. It is an assertion of their rights under the law. What the veterans are seeking is their rightful claim as granted to them by Inouye’s Veterans Equity Compensation.

Senator Daniel Inouye, World War II veteran himself, is a well-respected legislator who had always been on the side of the Filipino veterans for many decades. The political realities in Capitol Hill made it difficult to achieve full equity that the veterans truly deserve. But this is just going to be a matter of time. We are expecting more changes to come.

(Tancinco may be reached at law@tancinco.com or 887 7177. She is also the Chairperson of the San Francisco Veterans Equity Center and long time advocate for Filipino World War II veterans)

Amelia’s husband George left for the US in 2007. They have two minor children who are both in elementary school. Every month George sent $200 for the support of his wife and children. After two years, George stopped sending his support and instead sent Amelia a summons and a copy of the petition for divorce. Amelia did not sign the divorce. Nevertheless, a California Superior Court issued a final divorce judgment.

After more than two years, Amelia learned that George married a US citizen and he was petitioned by his US citizen spouse to become a lawful permanent resident. In the meantime, Amelia went on with her life and met Joseph who is also a US citizen. Their relationship developed and Joseph subsequently asked Amelia to marry him so that she can be petitioned to go with him to the US. Amelia accepted Joseph’s proposal and they both set a date for their marriage.

As a condition for Amelia to re-marry in the Philippines, recognition of the foreign decree of divorce is needed in Philippine courts. The request for recognition was denied on the ground that both George and Amelia were Filipino citizens at the time the divorce was obtained. According to Amelia’s legal counsel, the divorce issued by the California Court has no valid and legal effect in the Philippines, as divorce between 2 Filipino citizens is not recognized. Amelia was asked to determine whether George is now a US citizen in order that a divorce may be re-filed to dissolve their marriage (again). Unfortunately, George informed Amelia that his marriage to the US citizen did not work out and that he obtained a second divorce from the second wife. George, though now a green card holder, is still a Filipino citizen.

Meanwhile, Amelia is ready to move on with her life and would like to marry her boyfriend Joseph. Unfortunately, she is not allowed to re-marry considering that under Philippine law, the divorce decree obtained by his former spouse is not recognized. The only exception recognized in Philippine law is in mixed marriages where the foreign national spouse was the party who obtained the divorce. Will Amelia be able to re-marry Joseph? She now wants to migrate to the US with him and build their family there.

Inequity of the Law

While there is no divorce in the Philippines, there is an exception under Section 26 of the Family Code when one of the parties to the marriage is a foreign national. However, for purposes of remarriage of the Filipino national, this divorce decree must be judicially recognized in Philippine courts.
    
In the case of Amelia, since her spouse is not a foreign national but rather still a Filipino citizen, the divorce that was obtained in a California court will not benefit her.  This means that she cannot remarry in the Philippines. George, on the other hand, has not only been re-married to a new partner, he is free to divorce and re-marry as many times as he wants.

Much as Amelia wants to re-marry and live with Joseph, she is deprived from doing so under Philippine law.

DIVORCE OF TWO FILIPINO NATIONALS

It is not uncommon, and not at all hard, for Filipino parties to a marriage to circumvent the prohibitions of the law. This situation arises when one or both Filipino spouses travel to the US and one party files for divorce in a State court. When the divorce is final, either or both parties can then re-marry their respective new partners. These marriages are recognized in US jurisdictions even if it is not valid in the Philippines. Since divorce judgment is recognized in the US, the divorced Filipino spouse can enter into a subsequent marriage with a new partner. This is a common situation where the Filipino is able to get immigrant status in the US and later on naturalized to become a US citizen.

Should the second spouses return to the Philippines after being divorced in the US, this spouse remains “married” and is barred from entering into a subsequent marriage without suffering the criminal consequences of either adultery or bigamy. The first spouse who stays in the US, on the other hand, is free to re-marry and build a new life.

BALANCING THE RESULTING INEQUITIES

Divorce for Filipino nationals may still be an evolving legal issue. In actual cases, the consequences of a lack of legalization of divorce in the Philippines is being experienced both in negative and positive ways depending on the party to the marriage who is able to circumvent this prohibition.  Preservation of a family unit as long as possible is paramount. But in a global economy where people travel and migrate significantly, the strength of a marital relationship is always seriously challenged. If this happens, aren’t families better off with a regulated family law that governs child/spousal support and allow divorce between Filipino nationals and not just mixed marriages?

(Tancinco may be reached at law@tancinco.com or at 02 8877177 or 02 721 1963)

Filipinos in America celebrated the month of October as their Filipino History Month. Resolutions from different states and even from Capitol Hill in Washington DC have declared the month of October as commemorative of the valuable accomplishments of the Filipino-Americans.

The month of October, being Filipino History Month in the US, our attention was drawn happenings in the Philippines.

An invitation was sent to me a few weeks back for a book-signing event by Marites Vitug, author of the “Shadow of Doubt” held at the San Francisco Library on October 13, 2010. Her book reveals probable, if not factual, corruptions inside the Supreme Court.  In the same week I attended a mandatory continuing legal education seminar which was held in Las Vegas, Nevada on October 12-15, 2010 where current Supreme Court decisions were also discussed.

During that same week, exactly on October 15, 2010, a resolution was rendered by the Supreme Court on the issue of plagiarism causing alarm to many of us practitioners. My classmate, now Dean of the UP College of Law Marvic Leonen, and other UP professors brought out to public the plagiarism that was committed by a sitting Supreme Court Justice in a court decision. For doing so, an Order to Show Cause was instead issued again Dean Leonen and the other professors why they do not merit contempt for causing harm to the integrity of the court.    

As an alumni of the UP College of Law, we recall the many years we laboriously spent to attain the title of an “attorney”. In the (arguably) best law school in the country, we learned not just the law but also the values of a good advocate. We look up to the Justices as the final arbiter of disputes who inspire us to be the best lawyers that we can be. We had Justices, and even a current sitting justice, as our professors during law school who commanded respect from us.  As we graduated from law school, we put to heart Justice Holmes’ words written on the walls of Malcolm Hall that the business of a law school is not simply to teach law but to teach it in a” grand manner and to make great lawyers.” As we graduated from law school and passed the bar we wanted not just to be lawyers but also to be “great” lawyers.

More than two decades have passed since I graduated from the UP College of Law. Through these years, I have always tried to remain committed to the values taught me in law school and to use the tools passed on to me as I have moved towards my chosen career path. Being a graduate of a Philippine law school but practicing in a US jurisdiction is very challenging. It is often difficult for us immigrants with a “foreign” degree.  We are always put in situations almost on a daily basis in judicial or administrative cases we appear in to show that we have better legal skills than graduates of US schools.  

We Remain Vested

Just like any immigrant in an adopted land, stereotyping of a particular nationality by other immigrants or natural-born citizens is common. When one foreign attorney is “disbarred” or “suspended” from practicing law, a judgment is passed not only on that particular individual.  More often than not, that individual’s judgment also affects the reputation of other attorneys of that same nationality. While we are not accountable for all Filipino nationals, as an immigrant, there is somehow a moral responsibility for us to try to boost the positive image of not just ourselves but our community as well.

In one case that we handled in our office, a client revealed that she was given an annulment decree submitted by a Filipino “consultant” which turned out to be a bogus judicial decree. The submission by the “consultant” of the fraudulent document resulted in the client being put in deportation proceedings. When confronted by the immigration judge about the fraudulent document, the respondent in the deportation case claimed that she paid a “court clerk” to come up with such a document. While the client retained our services in deportation proceedings to defend her, I was not responsible for submitting this document. But when this issue came up, it was a very embarrassing situation to me as a Filipino practitioner. We, as Filipinos, do not want to have a reputation as prone to submit false documents and tell lies under oath. I tried to rationalize that (hopefully) this was just an isolated case.

The stories of alleged corruption in our highest court as written in the book of Marites Vitug’s “Shadow of Doubt” are almost too hard to believe. Unlike the case of a low level clerk in the lower courts who produce fraudulent documents, the alleged corruption in the highest court of the land is very disheartening.  I do give the Justices mentioned in the book the benefit of a doubt.

On October 15, 2010 the Supreme Court released a resolution absolving of plagiarism one of their own, a current sitting Justice.  After reading the rationale behind the decision, I was totally dumbfounded. The alleged plagiarism did not happen because the legal researcher of the Justice allegedly accidentally deleted the attributions and that “malicious intent” is required. I totally disagree with the rationale for this resolution.  Legal practitioners who are interested to know more, can read that resolution on their own and make their own conclusions.

To make matters worse, the Highest Court decided to take action against the ‘messengers’ who pointed out the plagiarism who happens to be one of the most brilliant lawyers in the legal academe in the country.  I have known Dean Leonen since law school days and even then, he was always a brilliant scholar. He chose the path of public service instead of the riches of private practice.  To me, he is one of the “great” lawyers produced by the UP College of Law.  While the Supreme Court indeed has the final say, it is just shameful to punish the person(s) who pointed out the plagiarism. Punishing Dean Leonen and the other UP professors for bringing to pubic the plagiarism committed by a sitting Supreme Court justice is a travesty. This time, I cannot simply turn a blind eye to this issue. I cannot fathom how it can be rationalized that pointing out the plagiarism committed by a sitting Justice deserves a rebuke. How ridiculous is it that the person who commits plagiarism is absolved but the person(s) who pointed out the plagiarism is being punished ????

As a lawyer who advocates for what is right and just for our clients, the judicial system’s integrity is critical in order for people to trust the system. We have to remind those who are lost in the legal process to continue to trust in the legal and judicial system. The reputation of the Philippine judiciary is at a heightened crisis as the plagiarism case has gotten adverse reaction not just from the local bar but also from the international legal community. Can the Justices legitimately focus and resolve the issue at hand without compromising our faith in the system?  Please give us something to hope for.

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