Author: tancincowp

Manong Eddie was carrying a very old picture of himself smiling with his comrades in the U.S. Army. According to him, he was a member of the Commonwealth Army of the Philippines under the Armed Forces of the United States during World War II. He has in his possession all his records of discharge and his enlistment record from the Philippine Army. He, however, lacks the certification from the National Personnel Records Center (NPRC) and therefore was unjustly denied his equity compensation as a U.S. veteran by the Department of Veterans Affairs.

A federal budget of $198 million was allocated for the Veterans Equity Compensation passed in 2009. Two years after the enactment of this legislation granting $15,000 or $9,000 to qualified veterans, a total of $221 million has already been paid to more than 18,000 Filipino veterans. Interesting to note is that, according to the data released by the Center for Minority Veterans, as of October 2011, there were 24,000 veterans who were denied their claims.

In addition to the $198 million that was allocated for the veterans equity compensation fund in 2009, a supplemental $67 million was added last year to this fund. This means that there is still a total of more or less $44 million funds to be disbursed to veterans who still have pending applications with the VEC.

Major Cause of Denial

The major cause for the denial of applications is the lack of status as a U.S. veteran despite proof of military service with the U.S. army. The criterion that is being used by the Veterans Affairs is the list of veterans kept by the National Personnel Record Center at St. Louis, Missouri. This is often referred to as the “Missouri list”. According to decisions denying claims of well-deserved veterans, the verification of  military service in the United States Armed Forces is the sole jurisdiction of the NPRC and that a status as a Philippine veteran does not automatically translate to status as an American veteran. Secondary evidence, including Philippine-generated documents, are not recognized as proof of military service by the Department of Veterans Affairs resulting in denial of thousands of claims for veterans equity compensation.

Reliance solely on the NPRC is unjust. Even the VA admits that the Missouri List is inaccurate due to the fact that the NPRC destroyed approximately 16-18 million Official Military Personnel Files. Among  those destroyed records, were personnel files of veterans who were discharged from November 1, 1912 to January 1, 1960.

The Lawsuit & the Hearing

In San Francisco California, a lawsuit, De Fernandez et al v. United States Department of Veterans Affairs  (CV-10-2468) was filed in 2010 with the U.S. Federal Court.  The plaintiffs in this case question the established criteria of the Veterans Affairs as being arbitrary and capricious. The complaint states that the criteria of relying solely on NPRC establish burdens for qualification that no Filipino veteran could reasonably be expected to overcome. The manner of determining eligibility violates the veterans due process rights.

The De Fernandez case which was filed jointly by Cotchett Pitre & McCarthy and Tancinco Law Offices is still pending. A hearing on November 15, 2011 before Honorable Judge Saundra B. Armstrong will be held on the Motion to Dismiss filed by the VA. If the plaintiffs prevail in this case and class certification is granted, those who were denied claims based on the Missouri list will be favorably impacted.

The Family Unity Case

Aside from the denied claims for equity compensation, the aging veterans are also concerned about the immigration petitions filed on behalf of their children. The mortality rate of this veterans generation is high. Based on information released by the Department of Veterans Affairs, approximately 1,153 veterans pass away everyday.  As more veterans die, their immigrant family petition are adversely affected because of the rule that “the petition dies with the petitioner” applies to most of these cases.

Adult children of U.S. citizens,  take more than 15 years to migrate. The reality is that by the time the petitions are ready for processing, most these petitioners/veterans are already deceased.  To address this situation, bills are introduced every year in US Congress for the children of Filipino World War II veterans to be exempt from the numerical limit set by the law making their children’s petitions’ priority dates all current. This year, Representative Mike Honda of San Jose, California introduced HR 1796  “Reuniting Families Act” on May 6, 2011.

If this bill is passed into law, all children of Filipino veterans whose petitions are still pending may be immediately processed for immigrant visas. Whether this law is going to pass, however, remains to be seen.
Every year during the month of November, America honors and recognizes the contributions of the war veterans. Each generation of war veterans from World War II to the current Afghanistan war are facing challenges with the VA as regards their claim to benefits. The economic crisis may have affected the budget of almost all federal agencies which is translating to more denial of claims. But whatever it may be, the manner of adjudicating should be more compassionate to these heroes who fought hard to defend our freedom and democracy.

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

With U.S. presidential election coming up next year, the issue of immigration reform, which was President Obama’s campaign promise to Latinos and other immigrant voters, never came to fruition. It is sad that while immigration policy has not changed to reform the broken system, more than one million individuals were deported to their homeland in the last three years.  

Need a Dancing Partner

In one of the public speeches of President Obama, he mentioned that he needs a ‘dancing partner’ to effect immigration reform. The US Congress is currently comprised of a lot of conservative Republicans who oppose any form of immigration amnesty and will obviously not pass any immigration reform law. In fact the most compassionate immigration bill, which is the federal DREAM Act that will provide undocumented students an opportunity to legalize their stay, is still awaiting passage. Unable to find its dancing partner, the Obama Administration acted alone and used the power of the executive branch to come out with what it calls “prosecutorial discretion”.

Prosecutorial Discretion

“Prosecutorial discretion” is the authority of a law enforcement agency or officer charged with enforcing a law to decide whether – and to what degree – to enforce the law in a particular case.  In immigration law, the Immigration and Customs Enforcement (ICE) or prosecutors may exercise their discretion in deciding to file deportation cases, enforce a deportation order or grant a deferred action. This exercise of discretion depends on the guidelines that were set by a policy memorandum.

It is a fact that there is an increase in the deportation of individuals who are without legal status. Most of those who were deported have been long time residents of the United States and do not have any criminal records. Families being forcibly torn apart became a common heartbreaking story in the immigrant community. Realizing the inhumane impact of deportation on those who have not done harm to society, Obama created a distinction between deportees who are low in priority and those who are high in priority.

Morton Memorandum

To guide the Department of Homeland Security’s Immigration and Customs Enforcement, a June 17, 2011 memorandum from the ICE Director John Morton was released. In this memorandum, guidelines were established for ICE in deciding when an individual may be removed from the country and when he should be spared from deportation.

Two months thereafter, in August 2011, President Obama reiterated this policy. Low priority deportees facing removal proceedings will have their cases administratively closed. They will also be granted employment authorizations. High priority cases or those who have done harm to society and are threats to public security shall receive high priority treatment by ensuring their deportation to their homeland.

Actual Implementation

Excited with the announcement of President Obama, thousands of individuals in deportation hearings became hopeful that their cases would be dismissed and that they would be receiving authorizations for employment. Five months after the initial pronouncement of ICE Director John Morton, despite the policy guidelines and the pronouncement in August 2011, majority of requests for prosecutorial discretion have yielded negative results. The review of 300,000 removal cases remains to be implemented in a pilot program that will take place in two jurisdictions.

In the meantime, ICE continues to remove or deport individuals despite discretionary factors that would warrant a closure of their cases. One ICE agent, when presented with the request for prosecutorial discretion, declined favorable exercise of such and said that he is” just doing his job”.  A young Filipino who migrated to the U.S. when he was 15 years and has been in the U.S. for 16 years is being deported because of his parent’s prior denied political asylum case. Formal requests to take into account compassionate factors were ignored.  

In a conference conducted by the American Immigration Council, several law practitioners expressed the same disappointment with the lack of responsiveness to what is being touted as current administration policy.  A recent survey last month of the American Immigration Council showed that while there were cases granted on the basis of prosecutorial discretion, statistically, there were much more cases that were declined.

No Positive Impact

The recent policy of the Obama Administration to grant prosecutorial discretion against illegal aliens who are no threat to US society is a welcome development in the immigrant community. But the true measure of any given policy can only be based on how well such policy is implemented. Without proper implementation of the full length, breadth and spirit of the policy, the help and succor that the immigrant community was hoping for cannot be realized.     

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