Month: December 2013

On December 13, 2013, the Philippine Ambassador to the United States Jose L. Cuisia made a formal request to the U.S. Department of State to designate Philippines a country under temporary protected status (TPS). This request was sent more than a month after Typhoon Yolanda struck the Philippines.   But what type of humanitarian relief is TPS? How will the grant of TPS assist in the recovery efforts of those affected by the typhoon in addition to the aid that is already underway?

Hundreds of thousands of Filipinos residing in the United States will benefit from the protection that will be provided by TPS. To better understand the nature of TPS, here are the frequently asked questions about this relief.

What is TPS?

Temporary protected status (TPS) is a temporary protection given to a national of country designated by the US Department of Homeland Security (DHS) for TPS. It is not a permanent lawful status it simply provides protection on a temporary basis for those who are present lawfully or unlawfully in the United States. If granted, an applicant for TPS will allow eligible Filipinos to continue to stay and work in the United States. They will receive work permits and travel documents.

In general, a certain country is designated for TPS only in limited cases where humanitarian circumstances arise. The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.  The Secretary of the Department of Homeland Security may designate a country for TPS due to the following temporary conditions in the country: (1) ongoing armed conflict (such as civil war) (2) an environmental disaster (such as earthquake or hurricane), or (3) an epidemic or other extraordinary and temporary conditions.

The Philippine government has requested that Philippines be designated for TPS because of the recent devastation caused by Typhoon Yolanda.

Who are qualified?

As of this writing, the Philippine government is still awaiting for official TPS designation from the DHS. Assuming that the Philippines is designated and guidelines are released, all “eligible Filipinos” residing in the United States who are currently in temporary status or in unlawful status are eligible for TPS subject to certain restrictions.  Those qualified must show that they are nationals of the Philippines, are present in the U.S. at the time of the application for TPS and continuously residing in the U.S. since the effective date of the most recent designation date.

Those who are not eligible to apply are those who have been convicted of a felony or convictions of two or more misdemeanors committed in the United States. Those who are engaged in or inciting terrorist activity are definitely ineligible.

Is TPS applicable only to Filipinos who are directly affected by Typhoon Yolanda?

According to the information released by the Philippine Embassy, the request is for “eligible Filipinos” residing in the United States. It did not state whether the request is limited to those who have families or relatives residing in areas directly affected by the typhoon Yolanda. In a conversation with a Philippine Embassy official, it was mentioned that despite not living within the geographical area affected by the typhoon Yolanda, all Filipinos are considered affected. The devastation transcends physical boundaries affected by the storm and the efforts to rebuild and rehabilitate must come from all Filipino nationals residing in the Philippines and abroad. Ambassador Cuisia explained in his press statement that a “TPS designation for the Philippines would allow eligible Filipinos currently in the US to support the long-term relief and rehabilitation efforts in the country because they could be given temporary authorization to stay and work for a limited period.”

If granted, how long is the effectivity of this TPS?

TPS is usually granted in varying periods depending on the U.S. Department of Homeland Security guidelines. For other TPS countries, usually it is granted for a period of 18 months. When a TPS designation ends beneficiaries revert to the immigration status they had prior to TPS or to any other status they may have been granted while in TPS. For example an applicant has an expired B2 visa and was granted temporary protection during the TPS designation, once the 18 months end, this individual will revert back to being in unlawful status.  Or, the applicant may have changed status depending on whether this applicant pursued other alternative options for legalizing his stay during the time his TPS was valid. It must be clear that TPS is not amnesty but simply a temporary relief.

Case-to-Case Basis

While the TPS request was made for all “eligible Filipinos” residing in the United States, each application will be examined and approved on a case-to-case basis. As of this moment, while waiting for the DHS to designate the Philippines as TPS country, all concerned Filipino abroad should continue to send their relief aid and to partake in rehabilitation efforts to assist those directly impacted by Typhoon Yolanda.

(Atty. Lourdes S. Tancinco may be reached at law@tancinco.com or at 721 1963 or visit her website at tancinco.weareph.com/old)

In 2012, President Obama released a policy guidance known as the Deferred Action for Childhood Arrivals (DACA) that will defer removal proceedings and grant employment authorization to thousands of undocumented immigrants. But while these young immigrants are given temporary relief, their parents who brought them to the United States are left without options to legalize their status. When young undocumented immigrants apply for relief, they will still be faced with the possible separation from their family should their parent(s) be deported. If this happens, will there still be an opportunity for the parent-child to be reunited? What if the parent is already in the Philippines? What steps may be taken for the return?

Jocelyn and her 15 year old daughter Madeline entered the US in 2004. Jocelyn and Madeline came to the US on a tourist visa to visit Jocelyn’s parents who are lawful permanent residents. All of Jocelyn’s siblings are green card holders and she is the only member of the family who was left in the Philippines. She was over 21 years old when her parents’ petition became current and because of this, she was not able to immigrate with her family.

Considering that Jocelyn’s entire family resided in the US, Jocelyn decided to remain in the US and fell out of status. Jocelyn’s father petitioned for her as an unmarried child of a lawful permanent resident with Madeline as a derivative beneficiary of the petition.

Jocelyn found a job as caregiver.  She was wrongly advised to file for political asylum in order to get an employment authorization document. However, instead of an employment authorization document, Jocelyn was put in deportation proceedings because of his denied political asylum case. She was not aware that she had a hearing, and a deportation order was issued in her absence.

During an ICE raid at the care home facility where Jocelyn works, Jocelyn was picked up for not having proper legal documents. It was discovered by ICE that Jocelyn had a warrant of arrest because of her final deportation order. To avoid removal, Jocelyn’s daughter Madeline availed of the immigration benefits of DACA as a young immigrant. Jocelyn was sent back home to the Philippines, but her daughter Madeline was allowed to stay under DACA. Jocelyn and Madeline are now separated from each other. Madeline resides with her elderly grandparents who are struggling to take care of her. Madeline misses her mother very much and is worried about her because Jocelyn does not have any family left in the Philippines.

What steps can Jocelyn take to enable her to return to the United States and be reunited with her daughter Madeline?

Effect of Deportation/Removal

The separation of family members due to removal is unfortunately a very common occurrence. Family reunification for some people can be near to impossible depending on the severity of the immigration violations. Family members can be separated for up to 10 years based on the unlawful presence bars.

In Jocelyn’s case, she must remain outside the US for 10 years due to her removal order and being unlawfully present in the US for over one year.

Reuniting with the Parent

An individual must have an approved petition with a priority date that is current before a visa may be processed and issued. Fortunately, Jocelyn has an approved petition from her father and the priority date is now current. To overcome her issues of inadmissibility based on the removal order and her unlawful presence in the US, Jocelyn may file certain waiver applications to reenter the US.  

Once the visa is processed based on the approved petition, Jocelyn will be able to apply for a 212 waiver to reenter the US during the 10 year period and a 601 waiver for the misrepresentation on the asylum application. These waivers require Jocelyn to prove that her qualifying relatives will suffer extreme hardship if she is not permitted to reenter the US. Similarly, she will need to show the same extreme hardship to waive to her misrepresentation on the asylum application. Qualifying relatives are US citizen or LPR spouses and parents.
Here, Jocelyn will need to show that her elderly parents will suffer extreme hardship if she is not able to reenter the US. Although Madeline is not a qualifying relative, Jocelyn can show that her parents are struggling financially to support Madeline, and that Jocelyn needs to return to the US to take care of Madeline. If Jocelyn can demonstrate the hardship to her parents, she will be able to reenter the US under her father’s petition before the 10 years have passed.

Mixed Legal Status Families

There is a significant number of Filipinos living in the United States with mixed legal status families. This means that at least one member of the family is in unlawful status. Most often, one or both parents are in unauthorized status and are subject to deportation.  When the deportation order is enforced, the U.S. citizen children or children granted legal status are left behind by their parents on the belief that it will be for the best interest of the children to remain in the United States. When family separation happens this way, the children who are left in the United States are often faced with both the trauma of being separated from their parents due to their deportation, and the continued fear, stress and anxiety in their everyday lives due to their own immigration status.

The adjustment to a disrupted family unit for a child is not easy. Since separation is a possible effect when parents are discovered to be without legal status and eventually deported, children are hesitant to even take advantage of whatever temporary relief that DACA provides to them. The best scenario is for an immigration reform to grant relief not only to young undocumented immigrants but to their parents as well.

(Atty. Lourdes Santos Tancinco may be reached at law@tancinco.com or at 721 1963 or visit her website at tancinco.weareph.com/old)

On the Friday before Thanksgiving week, I received a call from a woman community leader in San Francisco asking me if I was interested to be in a panel set up to discuss various immigration issues of the Filipino American community. I readily said “absolutely!” and when told it was to be on November 25, 2013, the day of President Barrack Obama’s San Francisco visit, I became doubly excited. Later, I found out the format was changed, the panel discussion was scrapped, and it will just be President Obama speaking directly to the crowd. Geez, I thought it was to be my moment to have an audience with the Commander in Chief of the United States.

Right after hearing about the change in the format, I was told that I could still attend the event at the Betty Ong Recreational Center in Chinatown. Ready to see President Obama, I went to Sunday mass and then proceeded to get my ticket to allow me to be at the event.

It was unusually cold in San Francisco that day. I arrived at the place early but was disappointed to discover that there were hundreds of people already lined up to enter the event place. I asked the volunteer if I could enter right away, and I was told to wait until they allowed us in. One of the volunteers approached us on the line and asked if we wanted a ‘sticker’ to be on the bleachers behind the President while he was speaking. Well, why not? I took the sticker together with the young students standing ahead of me in line. After an hour or so, we were finally allowed in and escorted to the bleachers. The Betty Ong Recreational Center had a big gym where they apparently held such events. The bleachers were for watching sporting events but the place was re-designed for that special day so the President would be standing right in front of the people out to hear him speak. I was glad to find a place on the very top of the bleachers, right behind this huge American Flag.

Having found quite a good spot on top of the bleachers, I started to make friends with those seated around me. On my right was Rey, a retired San Francisco employee; Aparna on my left, a young graduate working in Oakland, California; and in front of me, six young students. I asked the students to which group they belonged and they said they were all members of the organization called ASPIRE, an advocacy group of young undocumented immigrants. After 30 minutes of waiting, the President of the United States of America finally arrived at noon.

“Hello, everybody!” greeted the President. My eyes were wide open with anticipation. I smiled as I waved my hands to welcome the President and he waved back to us who were at the bleachers.  Wow, I was in close proximity with the Leader of the Free World. Now, I get to listen about Immigration Reform. I expected he would give us an update on how the immigration reform bill is progressing in the House and I anticipated he would encourage us to help move for its passage and do all that can be done to persuade our legislators to favorably act on the matter. But I also knew that San Francisco is an immigration friendly city and that our representatives, notably former House Speaker Nancy Pelosi, is a supporter of Immigration Reform. So what else is he going to speak to us about immigration reform?

The Speech

President Obama’s immigration speech reiterated what he had already said in many of his public speeches: “it is long past time to reform an immigration system that right now doesn’t serve America as well as it should.” He emphasized the benefits of passing the immigration reform bill by recognizing achievements of immigrants and how they and their contributions have been beneficial to the U.S. economy.

As I expected, he mentioned the barrier to the passage of the bill: “the only thing standing in our way right now is the unwillingness of certain Republicans in Congress to catch up with the rest of the country (on immigration reform).”  

What I did not expect, however, is how this oft repeated speech, in this immigrant friendly city, was received. The President was heckled.  While intently listening to the President’s speech, the young immigrant standing in front of me started interrupting the President. He was yelling at the top of his voice, “Mr. President, I need your help. My family has been separated for 19 months now!” In shock with what I was hearing from this young guy, all six student started chanting, “stop deportations, stop deportations!”. Oh God, this is not happening under my nose literally. The President turned to us and said “that exactly is what we were talking about.” He looked like he was engaging the young immigrant in a conversation. Hence, the young immigrant later identified as Ju Hong from South Korea yelled, “Mr. President, please use your executive order to halt deportations for all 11.5 undocumented immigrants in this country right now.” In response, President Obama categorically said that he did not have the power to stop deportation.

Secret Service

Several men in black suits came rushing to the bleachers ready to arrest the six young immigrants. The Filipino, Emmanuel Valenciano, voluntarily submitted himself.  As I was standing, I seemed to lose balance and felt the bleachers shaking. Or was I shaking because I was nervous about the commotion? What if they get arrested? As they were about to take Valenciano and Hong, President Obama stopped the security from bringing them out. He was calm in responding to them and said ‘these guys don’t need to go. He can stay there (referring to Valenciano).” I knew that if he were the other Chief Executive, these student advocates would have been arrested in an instance. But President Obama was applauded by the audience for keeping his cool and addressing the matter in the calm way that he did.

Can He Stop Deportation?

In responding to the ‘hecklers’, President Obama categorically said that he has no power to stop deportation because the United States is a nation of law. Under the rule of law, he has the responsibility of making sure that the laws are enforced. But in recent years, President Obama exercised his executive authority not to enforce certain provisions of the immigration law: he did this to certain widows of U.S. citizens, to the undocumented youth through the Deferred Action for Childhood Arrival, and very recently, parole to members of the military families. The young immigrant has a point.

But I also believe that there is no Chief Executive who will choose to exercise his presidential authority to all 11.5 million undocumented immigrants in such a blanket and all-encompassing way. Not only would it require a great deal of political capital, it would be viewed as a power grab, an encroachment on the other branches of government, a slap in the face of Congress. It would seem that President Obama holds the view that Congress will eventually pass the immigration reform bill without him having to take such drastic measures.

The Heckler and Me

After the speech and after President Obama left, my image was caught on national camera, at times expressing disappointment, and at times nodding at the points the hecklers were making. My friends asked me what I was thinking of and how I felt. I have no problem with the legitimacy of the message. The point was well taken. I could not agree, however, with the manner in which it was delivered. Maybe I am old-fashioned. Maybe I am more clear about who my alliances are and who are not in any position I take. Maybe I believe we should give the President some slack. Maybe President Obama deserved better.

(Atty. Lourdes Santos Tancinco may be reached at law@tancinco.com  or at 721 1963 or visit her website at tancinco.weareph.com/old)