Author: tancincowp

In a few weeks, summer vacation will be here and some families are planning to travel abroad. For those who intend to travel to the US, it is worth revisiting some of the common pitfalls at US ports of entry.

Temporary Visitors

The most common type of temporary visa to the US is the visitor or the B2 visa. This visa is used for a temporary stay in the US of less than six months. When traveling with a B2 visa, a traveler should understand that he should not have any prior immigration violation. The Customs and Border Protection (CBP) do check for   prior violations of immigration laws at the ports of entry.

A B2 visa holder who previously applied for extension of their authorized stay in the US must ensure that their application was favorably granted. If the application was previously denied, the B2 visa holder must not have incurred unlawful presence. This means that he should not have overstayed in the US, even for just a day.

The 3-year and 10-year bars to admission are triggered if there is unlawful presence in the US of more than six months or one year, respectively. This means that the traveler may not enter the US for three years if he previously overstayed in the US for more than six months but less than one year. Those who previously overstayed for more than one year will be barred from entering the US for 10 years. These are the penalty bars for overstaying tourists.

Airport-to-Airport Cases    

For those who applied for extensions of stay and whose applications were denied, there is a possibility that they will encounter problems at the port of entry. Even if the 3-year and 10-year bars do not apply to them, they may still be denied admission to the US if it is discovered that they had, even just one day, of unlawful presence. While it is not the penalty bar, the legislation under Immigration and Nationality Act (INA) Section 221(g) provides for cancellation of the visas at the port of entry. This is the reason why some B1/B2 visa holders face expedited removal upon their entry in the US. Several travelers identify this process as the “A-to-A” or the “Airport to Airport” process. It is called such because the immigration officer will deny entry at the airport and compel the return of the visitor to his port of origin.

There are several reasons for subjecting travelers to the airport-to-airport process. The most common is the record of a prior overstay of the tourist in the US; as well as those tourists who are suspected to be “intending immigrants” by the immigration officer.  

Common examples of an intending immigrant visitor visa holder are registered nurses from the Philippines. A tourist visa holder who happens to be a nurse will be questioned at the port of entry in regards her intention in entering the US. If it is discovered that she will take the nursing board or the NCLEX and plans to find a petitioner, the immigration officer may deny entry to this nurse even if she is in possession of a valid visitor’s visa.

It is also not uncommon for CBP officers to search a traveler’s baggage in a secondary inspection. If it is discovered, for example, that a nurse is carrying her diploma and transcript, she may be suspected of being an “intending immigrant”. She may be denied entry and sent back to Manila on the next available flight. This is an expedited removal process.

When the intention of the traveler is not clearly determined on first inspection, further questioning may be conducted. A visitor visa holder, for example, may say that she is visiting her US citizen fiancé for a few months. If after further interrogation, this visitor admits that she is planning to have a wedding with her US citizen fiancé in the US, she will be denied admission. She will be told to obtain a fiancé visa. The visitor visa is not the appropriate visa for entering based on her intentions.

Returning Residents

While most B1/B2 visa holders are closely scrutinized on their intentions, the green card holders or permanent residents may also be asked detailed questions. If it is determined that green cardholders stayed outside the US for many months and are returning to the US to stay only for a short period, there is a strong probability that they will be put in secondary inspection where the immigration officer will determine whether there is already an intent to abandon their green cards.

Once a green card holder’s record shows that there are more months or years spent in the Philippines than in the US, there may be a finding of abandonment. When there is “abandonment”, the green card holder will be given the choice to give up his green card or fight his case before the immigration judge. The good news for green card holders, however, is that there is no expedited removal or “A-to-A” process. The greencard holders have a right to a hearing unlike the nonimmigrant visa holders.

Lately, green card holders who have had criminal cases in the past (even if it has already been dismissed or sentences have been served) may also encounter some problems at the ports of entry. It is always advisable to be carrying court records indicating resolution of their criminal cases especially if there is no conviction. This will assist the CBP officer in determining whether the green card holder may or may not be subject to removal before the immigration judge.

The fact that a traveler is in possession of a valid visitors visa, a nonimmigrant visa, or even a green card, is not a guarantee that there will be no problem at the US port of entry. Prior immigration violations, unlawful presence, extended stays or very old criminal convictions may still pose problems at the ports of entry.

Most of the port of entry cases may be avoided by proper planning and by understanding the consequences of one’s past actions. Stating accurate intentions instead of misguided intentions is also crucial. Carefree traveling is now a thing of the past. Taking proactive steps to avoid problems and expedited removal is key to a smooth and well-deserved vacation.

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

Almost one hundred veterans and their widows gathered at the San Francisco Veterans Equity Center last week seeking assistance for the unreasonable denials of their lump sum benefits. Most of them received denial letters or letters requesting for additional information from the Veterans Affairs (VA) office.

Manong Ciriaco was very passionate in expressing his disappointment at the decision made by the Veterans Affairs. His name is listed as one of the recognized guerillas found in the Missouri list. He is also naturalized as a US citizen because of his military service during World War II . His name is listed as a recognized guerilla in the National Records Personnel Center (NRPC) in Missouri. Manong Ciriaco is also a recipient of medals of Honor for his valor during the war.

Despite his genuine military record and the vivid memory of his sacrifices during the war, Manong Ciriaco’s lump sum benefit is being withheld from him. He was asked to explain his activities related to the Japanese soldiers during the years 1942 to 1944. According to the VA letter, Manong Ciriaco received a check from the ‘Yokohoma’ bank during the Japanese occupation. This allegation caused Manong Ciriaco to become very ill after he was agitated with what he said was an “insult” to him. He categorically denied having received a check from this Yokohoma bank. Manong Ciriaco is now 92 years old and he informed his colleagues and the staff at the Veterans Equity Center that he would fight to death proving that the VA’s malicious accusation is false and unsubstantiated. He lost his temper during the gathering and was in tears as he concluded his statement with fighting words. A 92-year old veteran standing before a crowd, shaking with anger to argue his point of being a genuine war veteran is a very moving sight.

Filipino Veterans Equity Compensation

About one year ago, President Obama included in his Stimulus Package a provision of $198 million for Filipino World War II veterans.  This is the Filipino Veterans Equity Compensation granting either $15,000 or $9,000 to Filipino World War II veterans.

The $198 million was estimated for 18,000 veterans who are still believed to be survivors of the war. When news of this lump sum benefit was released, thousands of veterans filed their applications. As of February 2010, there are already 35,000 veterans who have filed their claims. Only 35% of these applicants have been issued their checks.  The other 65% of the applicants have either been denied or still have their claims still pending.  

According to the VA report, almost $149 million has already been disbursed to the 35% of the applicants who have been approved. This only leaves around $49 million for the remaining  14,585 veterans with pending claims.

Instead of receiving more checks, veterans with pending claims are experiencing a pattern of denials. Some may not have been denied but were being asked for additional information as part the VA’s “loyalty check.”

The Unfavorable Decisions

The VA has two common reasons for denying lump sum claims of the veterans. The first one is that the name of the veteran is not in the Missouri list.  This means that the veterans have no records of military service with the National Personnel Records Center (NPRC) in St. Louis, Missouri.  As per VA policy, the NPRC is their only means of verifying military service.

There is also a second reason for denial or request for further evidence even if the veterans name is on the Missouri list.  This second reason involves the VA wanting the veteran to explain his ‘alleged receipt of a check from a Japanese bank’ during the occupation period. This is according to the VA a “loyalty” check.

These denials and delays by the VA are looking more like a mere subterfuge to deny rightful benefits to veterans as the budget for the veterans lump sum benefit is already running out.

First, it is a well-known fact that the Missouri list is a “reconstructed list of veterans.” It may not be relied as the only source for verifying military status. This same issue arose during the early 1990’s when our Filipino veterans were applying for naturalization and the immigration service refused to naturalize Filipino veterans if their names were not found on the list. A lawsuit was filed against the former Immigration and Naturalization Service (INS) to accept secondary evidence. The then US Immigration and Naturalization Service (now, the US Citizenship and Immigration Services) lost in the case of Almero v. INS (9th Circuit 1994) and Serquina v. US (9th Circuit 1994) when it limited the naturalization to veterans whose names were in the Missouri list. In the Almero and Serquina case, the court ordered the INS to accept official Philippine government records instead of just US Army records to prove military service for purposes of US citizenship naturalization. The Filipino veterans prevailed in these cases, as the Missouri list is not an accurate and complete list of all Filipino World War II veterans.

Now, under the same circumstances, the VA is rejecting lump sum claims whose names are not on the Missouri list. The decision in the cases of Almero and Serquina should be invoked in the present cases for lump sum benefit. Secondary evidence of military service that includes Philippine records from PVAO should be acceptable.  A lawsuit would certainly be appropriate for filing against the VA. However, considering the time constraints faced by our elderly veterans who do not have many more years of life expectancy, many would certainly not live to hear a decision being finally rendered.

On the loyalty check, the VA should instead have a reality check. All of our veterans are already in their late 80s and 90s. The VA letter is requesting for detailed information about their work with the Japanese entities or government. Aside from asking for detailed information, the VA wants the elderly Filipino veteran to submit supporting testimony from their colleagues during the war.

During the Japanese occupation, we heard the worst war atrocities perpetrated against Filipino men. There were rampant cases of “forced labor” during the war by the Japanese government or private companies. To be found to have received a check during those days do not necessarily amount to “corroborating” with the enemy.

To ask for supporting testimony from a colleague presents a more challenging task for many veterans. How many of those who are asked to explain their activities during Japanese occupation have colleagues who are still alive? Almost all of the veterans in the San Francisco gathering pointed out that getting corroborating testimony is almost impossible. Most of the soldiers in their units are already deceased. Even for those who are not yet deceased, it is just impossible to trace their whereabouts after more than 60 years. How will they ever obtain these testimonies that the VA is asking for?

The struggle for equity and justice for the Filipino war veterans seems to be unending. The battle continues for their just recognition. This lump sum benefit is no longer as important to Ciriaco as his dignity. He said “I am insulted by US through the actions of the VA. I fought courageously side by side with my American comrades. Is this what they have to give me as I am near my end? This money is no longer important as preserving my pride and dignity as a true soldier.” Enough is enough for our Filipino veterans. These elderly war heroes deserve better. The lump sum benefit is now creating further inequities.

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