Author: tancincowp

Mark entered the United States when he was seven years old. He studied and finished high school in the United States. He was also able to enroll in one of the state universities in California. In June 2012, President Obama announced his administration’s policy called the Deferred Action to Childhood Arrivals (DACA) that will provide employment authorization to qualified young undocumented students. Mark was not too eager to apply for the immigration benefits because of uncertainty of the program should a new president be elected.  He was apprehensive of losing the DACA benefits should a new president terminate the program.

Instead of applying for deferred action and employment authorization, Mark waited until after elections before deciding to apply.  Now that election results are out and Obama has been re-elected, Mark is more inclined to file for benefits under DACA.

While Mark applied for benefits under DACA, there are thousands more who have put on hold their plans of filing for benefits. Mark represents many who have waited until election results are out before deciding to file. Undocumented students were not the only ones who had waited and held off their plans for availing of immigration benefits. Considering the constant threat of removal, many long time residents have instead decided to return to their homeland. Still others are hopeful that comprehensive immigration reform will be passed into law giving the more than 12 million undocumented immigrants a path to become legal residents.

Broken System

The increase in numbers of undocumented immigrants is a result of a broken immigration system. There are limited ways to legalize the stay of those who find themselves in undocumented status. Thus, the system is choked with millions of undocumented immigrants who for the most part are law-abiding and tax paying individuals who are vulnerable to mistreatment and unfair labor practices, as well as prosecution and detention.

For Filipinos, we know what the biggest problem is: the insane backlog for family petitions. It keeps families apart and forces people into extreme situations where they have to consider staying single their whole adult life; or, getting fed up and coming to America without proper visas.

The backlog also affects employment visas. The backlog for skilled workers makes it difficult for employers to attract the best and brightest from around the world, which undermines American competitiveness. The present U.S. immigration law is out of touch with 21st century economic realities. The U.S. has a large need for highly skilled professionals, and there is a shortage of US workers available to fill these positions. But Congress has kept a low cap on foreign workers. This only holds back America’s economic potential and competitive edge in the global economy. The system also only allows seasonal workers for low-skill jobs. But the need to fill these jobs is so great, that it would benefit the country if more workers were allowed to take these jobs on a permanent basis.

Top of His To Do List

In 2008, President Obama raised expectations of the immigrant community that he would pass comprehensive immigration reform. He admitted that his biggest failure is his inability to pass this law. Now that he is re-elected as President, one of his top to do list is moving forward with a comprehensive immigration reform. A top to bottom overhaul of the system is needed. There must be a legislation (1) allowing the undocumented a pathway to legal status, (2) allowing more foreign workers of all skill sets to fill the nation’s job needs, (3) eliminating the backlogs for family and employment-based petitions. Comprehensive immigration reform, in effect, will be restoring the rule of law and enhance U.S. security by creating legal channels to create a future flow of workers who are not undocumented.  Enforcement policies must be adopted that cracks down on criminal activities and not on low priority undocumented individuals.

Bi-partisan Support

The failure to pass in the last four years a comprehensive immigration reform law is due to a unified opposition by the Republicans in Congress. The Latino and the Asian votes during the recent Presidential elections, however, have sent a strong message to the Republicans. If they want to broaden their base of support for the 2016 election, they cannot keep on alienating the Latino and the Asian American voters by not supporting issues important to them. This time, hopefully, in President Obama’s second term, effort to reform the immigration system will receive bi-partisan support from both parties.

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

With a looming election for a U.S. President in just a couple of weeks, the Filipino American community received breaking news from White House honoring the Filipino World War II veterans.  No new benefits were granted. A federal  Interagency Working Group was created on October 17, 2012 to address the issue in regards to the Filipino veterans denied applications. How will this new development impact the thousands of veterans who were unjustly denied their claims?

The 2009 Filipino Veterans Equity Compensation Fund

A few months after being elected into office in 2009, President Obama signed into law the American Recovery and Reinvestment Act  (ARRA) that included a provision creating the Filipino Veterans Equity Compensation Fund (FVEC) for Filipino  veterans.  This fund allowed veterans who are U.S. citizens to receive a one-time payment of $15,000 and non-U.S. citizens a one-time payment of $9,000. This compensation was granted in recognition of the extraordinary contributions made by the Filipino veterans. From 2009 to the present, there were 18,000 claims that were approved but there were several thousands that were also denied.

Processing System for Claims

The Department of Veterans Affairs in collaboration with the Department of Defense was tasked with determining eligibility for the FVEC. As more claims were approved in the process and so were denials also received by deserving veterans. The reason given for denials of application is that the names of the veterans were not on the Missouri List.

Unjust Reliance on the Missouri List

The National Personnel Records Center (NPRC) is home to the Revised Reconstructed Guerrilla Roster (RRGR), also known as the “Missouri List,” an official database of all personnel who served in the armed forces in the 20th century, which is housed in St. Louis, Missouri.  Many Filipino veterans who served in World War II are on this list.  The one major problem is that the Missouri List is incomplete.  On July 12, 1973, a disastrous fire at NPRC destroyed approximately 16-18 million Official Military Personnel Files.  Of those destroyed, 80 percent were Army personnel who were discharged from November 1, 1912 to January 1, 1960.  There were no duplicate copies of the record that were destroyed, nor were there microfilms created.  There were no indexes prior to the fire and in addition, millions of documents had been lent to the Department of Veterans Affairs before the fire occurred.  Therefore, a complete listing of the records that were lost in the fire is no longer available.  Nevertheless, the Department of Veterans Affairs continues to make the Missouri List a basis for the grant or denial of FVEC claims.
Secondary Evidence
Faced with a similar in issue in the early 1990s, the legacy Immigration and Naturalization Service (INS) initially relied solely on the Missouri list in adjudicating thousands of applications for naturalization of Filipino World War II veterans. But after two federal lawsuits, the legacy INS was ordered to accept proof of military service with documents from the executive department under which they served, including Philippine government records.

After several representations made and appeals filed for VA to accept other proof of military service, VA stood its ground. The Missouri list remained the sole source of determining eligibility.  While a significant number of appeals are pending with the VA, a federal lawsuit was filed by veterans with denied claims in 2010 against the VA. This case is still pending with the Northern District Court of California, De Fernandez et al v. Department of Veterans Affairs questioning the constitutionality of the process established to adjudicate claims for FVEC.

Honoring the Veterans

The White House Initiative on Asian American and Pacific Islanders, through its co-chair Chris Lu announced the creation of the Interagency Working Group comprised of the officials of the Department of Veterans of Affairs, Department of Defense and the National Archives and Record Administration.  The collaborative efforts of young Filipino Americans together with other Asian groups worked hard to get this far. But, there is only one task identified for the Interagency Working Group, that is, to analyze the “process faced by Filipino veterans in demonstrating eligibility for compensation in order to ensure that all applications receive thorough and fair review.”

We remain grateful to President Obama and for the Democratic leadership of Senator Inouye, Senator Akaka, Secretary Mineta and Representatives Honda and Filner, among others, for championing the veterans’ cause. It is the democratic leaders led by the incumbent president that initiated the FVEC and now recently created the Interagency Working Group. But also, they have to be reminded that Filipino World War II veterans who have denied claims and deprived of their just recognition are dying each day. After three years, the FVEC process needs no further analysis or review. It should be clear, by this time, that the VA need to change the process by accepting the fact that reliance on the Missouri list is erroneous and that secondary reliable proof of military service should be accepted. Time is of the essence.

(Tancinco may be reached at law@tancinco.com or at 1 888 930 0808 or at 1 415 397 0808).