Month: January 2015

For many years, Johnny lived separately from his family in Manila. When President Obama announced his new immigration initiatives through executive action, he became hopeful that somehow he would be able to reunite with his family.

Johnny is looking forward to applying for the Deferred Action for Parental Accountability; or, the deferred action for parents of American citizens or lawful permanent residents. If the U.S. Citizenship and Immigration Services will start accepting his application, he will be able to apply for an employment authorization document. With this document, he will be able to come out of the shadows and be a more productive employee. But, whether or not he will receive an authorization to temporarily travel outside the United States to visit his family in the Philippines is still unclear until the UCSCIS releases its regulations. Despite this uncertainty, Johnny remains hopeful until he heard about recent roadblocks to Obama’s executive action on immigration brought about by lawsuits. What are the effects of these lawsuits that were filed against President Obama questioning the legality of the executive actions? What is the effect of limiting the federal funding of the U.S. Department of Homeland Security?

Political Maneuvers to Halt Implementation

An Arizona Sheriff in Maricopa County, Sheriff Joe Arpaio, was quick to file a lawsuit against President Obama alleging that actions by President Obama are unconstitutional for overstepping his power by changing the law himself and bypassing Congress. Last week, the U.S. District Court dismissed this lawsuit.

Another lawsuit filed by the State of Texas and 24 other states also questioning the constitutionality of the Obama executive action is pending with the Texas U.S. District Court. This case is scheduled to be heard on January 9, 2015. Plaintiff states are requesting for a preliminary injunction on the implementation of the executive action on the basis of unconstitutionality. President Obama is confident that he will prevail in this case considering that his actions are well within the legal authority of the executive branch of the United States. This position is supported by a significant number of legal scholars who have written their support for the legality of the executive action. Obviously these lawsuits are politically motivated. Several civil rights, immigration and labor organizations have submitted their amicus brief to the court in support of the executive action in an effort to have the case dismissed.

The Department of Homeland Security also was allocated its budget by Congress only until February 2015. This was a political maneuver by the Republicans intended to defund the DHS after they take over the House making it difficult to implement the Obama initiatives.

With all these roadblocks, there is still optimism among those who stand to benefit from these initiatives. Not all the undocumented will benefit from the new policies but the estimated 4.5 million undocumented who are waiting for DHS to implement the initiatives are keeping their faith that the Obama administration will surpass all these challenges. The faith lies in the belief that these changes in immigration policies are not only legal but also morally right.

((Atty. Lourdes Tancinco may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook.com/tancincolaw or at 02-7211963)

Samantha was introduced to Steve in 2009 while she was working for a retail company in Manila. Steve is a U.S. citizen and has been Samantha’s client for a long time. After a few months, Samantha and Steve had a formal relationship. Steve then filed a fiancé visa petition for Samantha.

In 2011, after being married for more than a year, no petition for green card was ever filed by Steve on Samantha’s behalf. A few months after living together, Steve started to act strange. Samantha was often yelled at and prevented from contacting her friends who also live in California. She was forced to stay home and not work because she did not possess any proper immigration document. Every time Samantha raises the issue about her petition, Steve would be upset with her and would show his displeasure. Samantha started feeling scared everyday. A few times, Steve would go home drunk and hurt Samantha by forcing her to have sex with him. When Samantha could no longer bear her situation, she escaped and went to a non-profit organization protecting women who are victims of domestic violence. A self-petition was filed by Samantha under the Violence Against Women Act (VAWA). Since she felt alone and depressed, she did not wait for the result of her petition. She departed for Manila and returned to her former place of employment. Samantha was happier after she separated from Steve.

In the meantime, Steve was prosecuted for domestic violence and served a few months in prison. Samantha’s self-petition was approved by the USCIS after she had already left for the Philippines. If Samantha wishes to pursue her application for immigrant visa based on the self-petition that she filed, will she be able to obtain the visa at the U.S. Embassy? How will her unlawful stay of more than 2 years affect her visa application?

VAWA Self Petition

Those who are survivors of domestic violence may file as “Self Petitioners” under the Violence Against Women Act. These self-petitioners include three categories: (1) spouse of US citizen or green card holders; (2) child of the spouse subjected to extreme cruelty and (3) parents abused by US citizen children at least 21 years old. The survivor must have been subjected to extreme cruelty, which could either be physical, psychological, sexual or emotional abuse.

In the case of Samantha, since she had left for the Philippines, she would still be able to have her visa processed at the U.S. Embassy in Manila. She would need to be interviewed by the consular officer about the circumstances of her case because she would be subject to the 3-10 year bar from returning to the US due to her accrual of more than 1 year unlawful presence in the US.

What Samantha can do to successfully obtain her visa despite the unlawful presence is to explain to the consular officer the substantial connection between the abuse and her prior Unlawful Presence. In this case, Steve had full control over Samantha. He intentionally did not file Samantha’s immigrant petition and the latter was not allowed to leave their conjugal home. This abusive behavior resulted in the unlawful presence of Samantha. If this substantial connection between the abuse and the unlawful presence is established, Samantha may obtain her immigrant visa without facing the 3-10 year bars and travel back to the United States to start her life anew.

(Atty.Lourdes Tancinco may be reached at law@tancinco.com or at 887 71 77 or visit her website at tancinco.weareph.com/old)