Tag: ICE

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The “Johnson Memo”: ICE to Prioritize Enforcement

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The U.S. Immigration and Customs Enforcement (ICE) Acting Director Tae Johnson released its ICE memorandum known as the “Johnson Memo” and laid out three priorities for enforcement:

  • national security,
  • border security and
  • public safety.

The new memo applies to every stage of enforcement, from deciding whether to arrest someone to deciding whether to deport them.

Presumed priorities are defined in the memo under these 3 categories.

For the third presumed priority under public safety, the individual must have been convicted of an aggravated felony or trigger the gang participation prong and must pose a threat to public safety. ICE officers are instructed to consider various factors before deciding to arrest or deport. These factors include: first, the extensiveness, seriousness, and recency of the criminal activity; and second, presence of mitigating factors, including, but not limited to:

  1. Personal and family circumstances;
  2. Health and medical factors;
  3. Ties to the Community;
  4. Evidence of rehabilitation; and
  5. Whether the individual has potential immigration relief available.

Prioritizing enforcement is a dramatic departure from the prior administration policy of deporting families who have lived for years in the United States, terrorizing immigrant communities and a reported increase in “collateral” arrests of individuals who were separated from their families.

The Johnson Memo is only an interim memo, and the Department of Homeland Security (DHS) Secretary will publish new rules for ICE officers, likely within 90 days. If you or any family member is at risk of removal or arrest, or has a final order of removal, it will be best to contact our office to determine if you fit the criteria for a presumed priority or not. Since this Memo does not completely take out ICE’s authority to apprehend, detain and remove individuals, one may want to have his or her case analyzed to determine whether it falls outside the presumed priority and if available reliefs are available.

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How Recent COVID-19 Operational Changes in U.S. Immigration Agencies Impact Your U.S. Immigration Petitions/Status

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As most U.S. government agencies resume operation, Tancinco Law, P.C. compiles a summary of what you need to know about your immigration petitions pending with different offices. In addition, we also have described travel restrictions imposed in the Philippines and the United States as it relates to a Filipino/American citizen traveler.

U.S. CITIZENSHIP AND IMMIGRATION SERVICE (USCIS)

Emergency Services

On June 4, 2020, the local U.S. Citizenship and Immigration Services announced that their local offices have re-opened for non-emergency in person services. As of this writing, USCIS is only scheduling local InfoMod appointments. These are cases where the individual has an emergent need such as ADIT stamp or proof of lawful residence and issuances of advance parole.  Physical interview schedules or rescheduled on immigrant benefit applications are yet to be mailed. Slowly USCIS will safely resume in person services. Those who need emergency document services may make an appointment www.uscis.gov/contactcenter or call 1 800-375-5283.  There will be no entry for those with no appointments. No walk in visits at the USCIS.

Naturalization: Oath Taking Ceremonies 

Notices of rescheduled oath taking ceremonies will be mailed out. So those who passed their citizenship tests and are waiting to take their oath will soon receive notices. As USCIS safely resumes in-person services, some naturalization ceremonies may be conducted differently than in the past. You may receive supplemental information from USCIS that provides detailed instructions for your ceremony. 

Biometrics

USCIS announced that in certain cases, it will issue notifications of biometrics reuse to eligible individuals instead of coming to the Application Support Center for biometrics. For those not eligible for the reuse of biometrics, notices of new schedule will soon be mailed on their cancelled biometrics appointments. If you do not receive notification of biometrics or appointments within 90 days of USCIS opening, you may call 1-800-375-5283.

DEPARTMENT OF STATES: CONSULAR PROCESSING

NATIONAL VISA CENTER (NVC)

Applications and submissions of documents with the National Visa Center’s online platform ,CEAC, is fully operational.

As of June 1, 2020, the National Visa Center will no longer accept or respond to inquiries through mail. Inquiries including urgent medical or humanitarian situations are to be submitted through a Public Inquiry Form at https://nvc.state.gov/inquiry. As of June 1, 2020, NVC is responding to inquiries received on May 23, 2020.

Documents will only be mailed if there are explicit instructions from the National Visa Center to do so and those instructions were received through email, telephone call or letter from the National Visa Center.

Beneficiaries of visa petitions are reminded of the “one year contact” requirement that they should apply for the immigrant visa within one year of notice of visa availability or risk termination of the registration  or revocation of the visa petition.

U.S. EMBASSY IN MANILA

The Department of State announced that each post will reopen on their own timeline based on the situation in the respective country. 

On Visa Applications and Interviews:

As per June 8, 2020 communication with the U.S. Embassy in Manila the following response was provided:

The U.S. Embassy in the Philippines has canceled all immigrant and nonimmigrant visa interviews scheduled through July 3 due to the Philippines’ community quarantine measures to reduce the spread of COVID-19.

We will resume routine visa services as soon as possible but are unable to provide a specific date at this time. We appreciate your patience and understanding.

After the community quarantine is lifted in Metro Manila, all affected applicants should reschedule their visa interviews through the Embassy call center by phone at +63 (2) 7792-8988 or +63 (2) 8548-8223, or through the online appointment system at ustraveldocs.com/ph.

There is no fee to change an appointment and visa application fees are valid for one year in the country where the fee was paid.

With no specific date and time to reopen, all visa applicants who wish to reschedule their interview may call the phone numbers provided or go online and access the U.S. Embassy’s online appointment system.

On Expired Visa and Inability to Travel Because of COVID-19

If a visa has been issued but the applicant cannot travel, the U.S. Embassy in Manila when it opens may be able to reprint a visa foil if the underlying documents have not expired. Where the documents expire while waiting to be able to travel to the U.S. the applicant will be required to obtain new documents. 

IMMIGRATION COURTS

The immigration judges continue to hear cases of individuals who are in detention. 

On Monday, June 15, 2020, Honolulu Immigration Court will resume hearings for non detained cases.

For individuals within the jurisdiction of Boston, Buffalo, Dallas, Hartford, Las Vegas, Memphis and New Orleans, immigration court hearings for non-detained cases will resume on Monday June 29, 2020. In all other immigration courts outside of those mentioned, hearings are postponed through and including Friday June 26, 2020. Those with hearing notices scheduled on or before June 26, 2020 will receive new Notices of Hearing. It is more important to check with your legal counsel about the status of your hearing with the immigration court so as not to miss your hearing dates.

IMMIGRATION & CUSTOMS ENFORCEMENT (ICE)

ICE Arrests

ICE maintains that in light of the ongoing COVID-19, the agency adjusted its enforcement posture beginning March 18, 2020 and limited arrest to those cases that are with highest priorities to promote life saving and public safety activities. Note that this does not mean that they are suspending arresting individuals with criminal history or those subject to mandatory detention.

ICE emphasized that it shall abide by its sensitive locations policy during the COVID-19 crisis and will not carry out enforcement operations at or near health care facilities, such as hospitals, doctors offices, accredited health clinics & emergent or urgent care facilities. Note though that ICE agents are present during protests despite the fact that these are considered sensitive locations. Unauthorized immigrants including DACA recipients joining the rallies/protests must be aware of their rights should they be taken into custody.

ICE Check Ins

Individuals required to report regularly to ICE for in person check-ins have been allowed to do so through alternative means. As of April 17, 2020, the in-person reporting has been temporarily suspended. However, individuals who are subject to the reporting requirement in lieu of detention/removal are still mandated to report either by calling or telephone check ins. For stays of removal applications, ICE-ERO will accept I-246 by mail.

 

TRAVEL TO THE PHILIPPINES AND UNITED STATES

Travel to the Philippines

Under existing guidelines, arriving U.S. citizens or non Filipinos are still not allowed to enter the Philippines even after 31 May 2020. Only OFWs, Foreign nationals married to Philippine citizens including their dependent children and foreign diplomats are allowed to enter the country.

All non-Filipinos who intend to depart the country can leave anytime. Filipinos are not allowed to leave unless they are OFWs, permanent residents, or holders of student visas in their countries of destination.However, they may have challenges in booking a flight as most of the international flights remain suspended.

Passengers Not Subject to the Restrictions and Who Are Arriving in the Philippines Subject to Mandatory Quarantine

All travelers to Manila will undergo the usual thermal scan upon arrival. If a passenger is showing symptoms of the COVID-19, s/he will undergo a real-time polymerase chain reaction (RT-PCR) test. Travelers whose test results are positive will be transferred to a designated hospital for further medical management.

Those who do not have symptoms will undergo a mandatory quarantine where a baseline rapid test will be conducted. While waiting for the results, passengers must stay in either a government designated quarantine facility or in a Bureau of Quarantine approved quarantine hotel for 14 days.

After quarantine is completed, individuals may go about their travel plans subject to quarantine protocols of the local government of their destination.

Filipinos who are not OFWs and Non-Filipinos will shoulder their own payment for the accommodation.

Traveling to the United States

Philippine citizens are not banned from entering the United States as long as they have valid U.S. temporary or permanent resident visas. Those who traveled internationally in the past 14 days and return to the United States, they are required to self quarantine, stay home and monitor their health. 

Unless the traveler is a U.S. citizen or a permanent lawful resident (green card holder), s/he will be banned from entering the U.S. if s/he traveled from the following countries: China, Hong Kong and Macau, Iran, the UK and Ireland Schengen area which encompasses the following 26 European Countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

U.S. citizens and lawful permanent residents of the United States, certain family members, and other individuals who meet specified exceptions who have been in one of the countries listed above in the past 14 days will be allowed to enter the United States through on of these airports: 

  • Boston-Logan International Airport (BOS), Massachusetts
  • Chicago O’Hare International Airport (ORD), Illinois
  • Dallas/Fort Worth International Airport (DFW), Texas
  • Detroit Metropolitan Airport (DTW), Michigan
  • Daniel K. Inouye International Airport (HNL), Hawaii
  • Fort Lauderdale-Hollywood International Airport (FLL), Florida
  • George Bush Intercontinental Airport (IAH), Texas
  • Hartsfield-Jackson Atlanta International Airport (ATL), Georgia
  • John F. Kennedy International Airport (JFK), New York
  • Los Angeles International Airport, (LAX), California
  • Miami International Airport (MIA), Florida
  • Newark Liberty International Airport (EWR), New Jersey
  • San Francisco International Airport (SFO), California
  • Seattle-Tacoma International Airport (SEA), Washington
  • Washington-Dulles International Airport (IAD), Virginia 

After arriving in the United States from one of these countries, CDC recommends that travelers stay home and monitor their health for 14 days. 

(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law P.C. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 1-888-930-0808; email at law@tancinco.com, www.facebook.com/tancincolaw or check their website at tancinco.weareph.com/old.) 

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USCIS/ICE/Immigration Courts in the SF Bay Area Updates

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Do You Have a Scheduled Hearing or Interview at the USCIS or Immigration Court in San Francisco?

See updated information below:

USCIS- San Francisco & San Jose
Interviews scheduled for March 17 through April 6 are cancelled. Officers are attempting to contact all scheduled interviewees to inform them of rescheduling. Most likely new interview dates will be for late May to June. Naturalization applicants with approved N400 and those scheduled for Oath taking on March 18 and March 25 will have their oath taking ceremony rescheduled to a later date.

USCIS- Fresno
Interviews are cancelled beginning March 18 at this USCIS office. All interviewees will receive rescheduled dates for their interviews.

You can also contact the USCIS through your online account or by calling the USCIS customer service number: Dial 800-375-5283 (for people who are deaf, hard of hearing, or have a speech disability: TTY 800-767-1833) to access automated information through an interactive menu 24 hours a day, seven days a week. If you are outside the United States or a U.S. territory, you can call 212-620-3418.

Biometrics ASCs:
Application Support Centers: Starting tomorrow, all six Bay Area ASCs are closed: San Jose, San Francisco, Fresno, Santa Rosa, Oakland and Salinas.

Immigration Courts:
If you have a master hearing (not individual hearing) please note that Master Calendar Hearings with schedule from March 16 through April 10 are postponed. Usual operations remain open specifically for filings except for Seattle.

ICE :
If you are required to do regular reporting before the ERO-ICE, note that the San Francisco ICE located at 630 Sansome Street remains open. But if anyone has a question about reporting, they should utilize the inquiry mailbox SFR-ERO-INQUIRIES@ICE.DHS.GOV to reschedule.

For questions about immigration matters or if you need legal representation or assistance, please contact our office at 1 888 930 0808 or email us at law@tancinco.com, or visit our website at tancinco.weareph.com/old.

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Deportation of “Millions” of Undocumented Immigrants?: Know Your Rights in Case of ICE Arrest

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President Trump’s tweet on June 17, 2019 that millions of immigrants are going to be deported beginning next week is once again a threat to hundred thousands of Filipino immigrants who are without legal status. While interior enforcement of immigration law has been Trump’s administration priority, mass deportation was not really fully effected perhaps because of lack of ICE resources or some constitutional issues. If indeed ICE is now ready to “remove millions of undocumented immigrants’’, revisiting their rights becomes of utmost importance.

The Immigration Legal Resource Center based in San Francisco CA released the Know Your Rights below which may be asserted if the inescapable ICE visit or arrest takes place.

You have the right to remain silent.
You can assert your fifth amendment right. You can refuse to speak to an ICE agent. Do not answer any questions, especially about your birth place, immigration status or how you entered the United States. Say that you want to remain silent until you speak with a lawyer.

You have the right to demand a warrant before letting anyone into your home.
The ICE agent may not enter your home without a warrant. You do not have to give permission for him to enter. It is okay not to open your door unless the agent shows you the warrant. If the warrant is presented to you, ask the agent to slip it under the door or through the window. Make sure it is signed by a judge with your correct name, address and date of birth.

You have the right to speak to a lawyer and the right to make a phone call.
It is important to have your attorney’s phone number handy. You will be entitled to make a phone call. If you do not know your attorney’s number, call a trusted friend or relative to coordinate with your attorney.

You have the right to refuse to sign anything before you talk to a lawyer.
There will be some documents that will be presented to you for signing after you are apprehended and taken into custody.. Do not sign anything. If you sign without understanding the nature of the document, it is possible that you are signing a waiver of your rights to a lawyer or to a hearing. And if you waive these rights, it may result in your immediate removal without a hearing.

You have the right to refuse to show any documents before speaking with a lawyer.
When you are visited by an ICE agent, you do not have to give permission to search any of your belongings unless there is a warrant. You can ask to speak with a lawyer before you submit any documentation.

Each case of an unauthorized individual is distinct and all non-U.S. citizens must be vigilant about their rights. Considering the threat of a mass apprehension, it is worth exploring legal options with a trusted professional immigration attorney and from there decide on an appropriate course of action to obviate fear of possible removal.

(Atty. Lourdes S. Tancinco is a San Francisco CA based immigration attorney at Tancinco Law Offices and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1 888 930 0808 or at 1 415 397 0808)

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Effect of Shutdown On Immigration-Related Programs & Applications

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For three weeks now, a partial government shutdown is still in effect. What is the impact of this shutdown on immigration related programs?

A. Court Hearings of Non-citizens in Removal Proceedings

With 800,000 cases pending before immigration courts nationwide, the partial shutdown only worsens the backlog. At the moment, the immigration courts under the Department of Justice’s Executive Office on Immigration Review (EOIR) are not hearing cases of non-detained individuals and their hearing if scheduled during the shutdown will be reset for a later date. Individuals who are in detention will proceed with their scheduled hearings.

B. USCIS Petitions, Applications and Interviews

Most family and employment-based petitions, applications for naturalization, adjustments of status and other applications are accepted by the U.S. Citizenship and Immigration Services (USCIS). Unlike other federal agencies, USCIS is a fee-funded agency and is open for business despite the federal budget issues. It will remain open and individuals seeking immigration benefits must attend interviews and appointments as scheduled. The only programs that are suspended during the shutdown are the following:

  1. EB5 Immigrant Investor Regional Center Program;
  2. E-Verify;
  3. Conrad 30 Waiver Program for J1 medical doctors; and the
  4. Non-minister religious workers petitions.

C. Consular Processing with the National Visa Center and U.S. Embassy

Those with approved petitions and individuals whose visas are available for processing are not affected by the shutdown. The Department of State issued an announcement on December 22, 2018 stating that all visa services in the United States and at U.S. Embassies/Consulates overseas will continue during the partial shutdown.

D. Application for Temporary and Permanent Visas at the U.S. Embassy

Visa operations are fee-funded so the U.S. Embassies will continue functioning despite the shutdown. Those applying for visas and who have scheduled interviews must attend their scheduled appointments for visa issuance.

E. U.S.Passport Applications

For travelers whose passports are expiring or first time applicants, the Department of State announced that their passport offices are open to receive applications. The National Passport Information Center still accepts telephone calls and inquiries from the public.

F. ICE Enforcement and Removal

The ICE remain operational during a government shutdown. According to ICE Spokeswoman Gillian Christensen, ICE is deemed a law enforcement necessary for the safety of life and protection of property. This mean that ICE may still enforce a removal orders or may conduct raids as it deems necessary. There are 15,254 ICE employees who are working without pay because of the shutdown.

G. CBP and those Entering the U.S.

CBP agency is considered “essential” and so ports of entry will be open. CBP officers will remain on duty but will not be paid during the shutdown.

The information above is obtained from the different respective federal agencies’ public notices regarding the effect of the current shutdown. With the bi-partisan politics and opposing views on immigration, the shutdown may continue for a while. Recent studies show that majority of Americans have always been opposed to a border wall. But if the government is reopened, hopefully it will happen without a border wall funding since there is no imminent threat to national security to substantiate the significant cost being requested by President Trump.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco-based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw, or through her website tancinco.weareph.com/old)

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Applicants With ‘USCIS Denials’ May Be Put In Removal Proceedings

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A person who is unlawfully present after his application, petition or request for an immigration benefit is denied may find himself in removal proceedings and eventually may possibly be deported. The U.S. Citizenship and Immigration Services (USCIS) released last week their two new policies with regard to the handling of denied applications and petitions for those seeking immigration benefits. These policy memos (PM-602-0050-1 and PM-602-0161) are referred as updated guidance to referring cases to ICE and issuance of Notices to Appear.

How are these new policy memos going to be implemented? What impact will these have on those seeking immigration benefits?

Paul entered the United States using a visitor visa. He sought an extension of his stay by filing an Application to Extend Status (I-539) because he was invited to speak in a conference on a date which was beyond his authorized stay. Paul continued to reside on a visitor visa in the U.S. even after his authorized period of stay hoping that his application will be approved and he will not lose status. Unfortunately, USCIS denied his application. Under the new policies, Paul will be put in removal proceedings because he is now in unlawful status.

Those seeking extensions of H1B visas and whose requests were denied may also suffer the same fate as Paul. Under the new policy, USCIS may issue NTAs and put those with denied petitions in removal proceedings.

There are thousands of applications and petitions filed with the USCIS by those who are present in the United States. They may be seeking to avail of some immigration benefits like an extension of non-immigrant stay, change of status, extension of working visas or adjustment of status from non-immigrant status to that of a lawful permanent resident. Most of the time these applicants, if they meet the eligibility requirements are approved and issued the requested valid status. However, with the recent policies, in the event the application or petition is denied, USCIS may issue a Notice to Appear and put the applicant in removal proceedings.

Other than cases of those unlawfully present whose application or petition are denied, the following categories of cases are also impacted by the new policies:

  • Cases where fraud or misrepresentation is substantiated and/or where an applicant abused any program related to the receipt of public benefit
  • Criminal cases where an applicant is convicted or charged with a criminal offense which is a ground of removability
  • Cases in which N400 or an Application for Naturalization is denied based on good moral ground or a criminal offense

These USCIS new policies will result in more cases being filed in removal courts. With more than 700,000 cases pending in immigration courts nationwide, additional filings of cases based on these USCIS policies will only make the backlog severe. The ICE is not the only agency involved in enforcement of immigration law. The USCIS, which used to be the agency that handles immigration benefits, has now been turned into an enforcement agency as well. With this additional role, the delay in adjudication of petitions is expected to happen impacting thousands of adjustment of status and naturalization applications.

With the ever-changing policies evolving at a very fast pace, it would be prudent for a prospective petitioner or applicant to have a serious discussion about his case with a trusted legal counsel. One must be able to assess the varying legal options that may be available to attain the same result without risking removal. Or perhaps one must have his case examined on whether it is even timely or worth pursuing an application or a petition with the USCIS. During these critical times and when it comes to immigration, there is no substitute for due diligence.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw.)

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Global Pinoy

Know Your Rights in Case of ICE Arrest

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At the recently concluded American Immigration Lawyers Association conference held at New Orleans, representatives from the Immigration and Customs Enforcement indicated the lack of detention centers and beds. It was mentioned several times, that Trump’s policy on interior enforcement is being executed and they expect increase in apprehension.

If a non-U.S. citizen who is without legal status is arrested by ICE agent, what steps may be taken? What rights if any do they have at the time of arrest?

Below are the “Know Your Rights” information being disseminated by Immigration Legal Resource Center and certain non-profit organizations, which may be asserted if the inescapable ICE visit or arrest takes place.

You have the right to remain silent.

You can assert your fifth amendment right. You can refuse to speak to an ICE agent. Do not answer any questions, especially about your birth place, immigration status or how you entered the United States. Say that you want to remain silent until you speak with a lawyer.

You have the right to demand a warrant before letting anyone into your home.

The ICE agent may not enter your home without a warrant. You do not have to give permission for him to enter. It is okay not to open your door unless the agent shows you the warrant. If the warrant is presented to you, ask the agent to slip it under the door or through the window. Make sure it is signed by a judge with your correct name, address and date of birth.

You have the right to speak to a lawyer and the right to make a phone call.

It is important to have your attorney’s phone number handy. You will be entitled to make a phone call. If you do not know your attorney’s number, call a trusted friend or relative to coordinate with your attorney.

You have the right to refuse to sign anything before you talk to a lawyer.

There will be some documents that will be presented to you for signing after you are apprehended and taken into custody. Do not sign anything. If you sign without understanding the nature of the document, it is possible that you are signing a waiver of your rights to a lawyer or to a hearing. And if you waive these rights, it may result in your immediate removal without a hearing.

You have the right to refuse to show any documents before speaking with a lawyer.

When you are visited by an ICE agent, you do not have to give permission to search any of your belongings unless there is a warrant. You can ask to speak with a lawyer before you submit any documentation. Each case of an unauthorized individual is distinct and all non-U.S. citizens must be vigilant about their rights. During these challenging times, a legal advice from a professional immigration attorney becomes indispensable to figure out what legal options may still be available.

(Atty. Lourdes S. Tancinco is a San Francisco CA based immigration attorney at Tancinco Law Offices and may be reached at law@tancinco.com, facebook.com/tancincolaw, or at 1 888 930 0808 or at 1 415 397 0808.)

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2 Filipinos spared from deportation due to PH war on drugs

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SAN FRANCISCO — Two Filipino immigrants, who served jail terms for drug offenses but were apprehended by the Immigration and Customs Enforcement (ICE) agents and placed on deportation proceedings, were recently granted protection under the Convention Against Torture (CAT) because they are potential targets of President Rodrigo Duterte’s lethal war on drugs.

One immigrant was immediately released after an immigration judge’s CAT ruling while the other remains in custody pending the written decision of the judge that could withstand an impending appeal of ICE against the still detained convict.

The two grateful Filipinos living in San Francisco chose to remain unidentified. Both men have families, are indigents and in their mid-30s. They are green card holders who were represented for free by legal advocacy group for Asians in San Francisco.

Their lawyer, Kevin Lo, is a staff attorney in the Immigrant Rights Program of the Asian Law Caucus. Lo chanced upon the two men when he visited the San Francisco immigration detention center and realized that the two Filipinos needed representation, as most people in immigration detention are usually not legally aided enough.

Claims for protection

“In evaluating the cases of the two Filipinos clients, we learned about the situation in the Philippines with President Duterte’s drug war. And when we realized that they had claims for protection under the Convention Against Torture, we decided to take their cases because we know the situation is pretty serious,” Lo shared.

“We decided to make the argument that drug addicts who are deported to the Philippines has a more then 50 percent chance to be added to government watch lists and subsequently killed,” Lo explained.

Asian Law Caucus sought the help of Vicente Rafael, professor of history in the University of Washington, specializing in Southeast Asian history. “Rafael became our source for the condition in the Philippines particularly the drug war being waged by President Duterte,” Lo said.

Rafael’s declaration together with another expert’s statement proved very helpful in securing the detainees’ protection from the judge.

“We [also] submitted a big stack of articles and pictures to show that in the Philippines drug convictions typically equal torture and death,” Lo explained. “If we haven’t been able to submit the country condition confirmation that intended to show that the government’s (drive against drug offenders) is true, the ruling may not have been granted and they could have been deported.”

Scheduled to testify again

Rafael is scheduled to testify by phone on another case, in Tacoma, Washington, largely along the same lines. Nearby Seattle was where an earlier case employing the CAT appeal protection lost.

Lo wants to make clear though that the CAT is usually the last thing that people try for because it doesn’t lead to any legal status; one can still be deported when conditions change. It is also not granted very often.

“For our clients, the judge said he won’t be deporting our clients. But once Duterte is no longer in power and the drug war is no longer happening, they can be deported. So, CAT is an acknowledgement that you are deportable, but for human rights reason, you are not going to be for now,” disclosed Lo.

He says its a form of relief that applies to other people in other countries with dangerous condition of human rights. “The Duterte situation is so extreme, so rare that the head of state will be so explicit and proud that he killed so many people that started back when he was mayor of Davao City.”

Unfair deportation system

Lo also stressed that the U.S. deportation system is so unfair because even if immigrant convicts spent only a few months in a U.S. prison, they are being deported even for drug crimes that are not serious.

“Current U.S. immigration law punishes drug crimes very heavily. It is kind of funny that we are criticizing Duterte for his war on drugs, while the U.S. war on drugs, although not be as bad, is pretty extreme too,” Lo lamented.

In the deportation process, ICE will request for travel documents from the Philippines and also will turn over a copy of the deportee’s criminal record. What that means is that the U.S. is explicitly telling the Philippines that the deportee is a drug abuser or trafficker. Under Duterte, it is very likely that the deportee will be added to the drug list.

Duterte supporter Atty. Arnedo S. Valera, a practicing immigration attorney, congratulated Lo and company for “creative legal representation” in finding a relief from deportation for these two Filipinos.

Legal aberration

However, he contended that “this ruling is a legal aberration and not the prevailing case law in almost all immigration courts in 50 States. For the last decade, based on specific and unique removal issues faced by Filipino immigrants, I have been successful in obtaining asylum alleging fear of even torture under the Aquino and Arroyo regimes.”

Most likely, these liberal rulings will be appealed by the government because the fact is, under the drug policy of the Duterte administration, drug addicts who surrender and are not engaged in selling drugs and other criminal activities are sent to rehabilitation centers for treatment and drug rehabilitation.”

Duterte critic and seasoned litigator Ted Laguatan says that the present Philippine government has developed a global reputation for being engaged in state-sponsored extrajudicial killings and human rights violations.

“Numerous documented reports and graphic pictures of Filipinos brutally murdered by police elements and so called ‘vigilantes’ many of whom are also police elements dressed in civilians, have been published in international publications. More than 8,000 killed since President Rodrigo Duterte sat in office,” reasoned Laguatan.

Laguatan says that while government apologists continue to deny that these killings are state-sponsored, there are so many recorded footages of President Rodrigo Duterte delivering speeches urging the police to continue with these killings and assuring them of his protection.

‘Duterte behind the killings’

“Anyone with a modicum of intelligence knows that Duterte is behind these killings as the styles or modes of executions are the same as those used by the notorious Davao Death Squad reputedly headed by Duterte when he was Mayor of Davao City. Moreover, the more than 8,000 killings are self-evident. They would not have happened if Duterte were not President. As such, more Filipinos in removal proceedings in Immigration Court will be using the United Nation’s Convention Against Torture (CAT) to prevent their removal,” Laguatan opined.

Another eminent immigration lawyer Lourdes Tancinco noted that with the current social political environment in the Philippines, the view of the outside world on the controversial war of drugs has an impact on the fate of Filipinos abroad.

“I am not surprised that it had reached the immigration courts involving Filipinos who are facing removal. It would not be difficult to find sufficient evidence for protection under the Convention Against Torture (CAT) Act considering that substantial and factual information is available in regards to the increasing number of death of people involved in illegal drugs. The courts can rely on expert opinion or organizations like the UN Commission on Human Rights,” Tancinco said.

Tancinco noted that the challenge in employing CAT is proving whether the abuse is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or any person acting in an official capacity.

–

By Jun Nucum, via @inquirerdotnet

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Global Pinoy

Undocumented’s options – depart voluntarily or be detained

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Two weeks ago, Rey Galleon, a Filipino who had been residing in unlawful status for several years, was arrested by ICE and decided to depart “voluntarily” to avoid being incarcerated.

According to Galleon’s public statement, the ICE officers gave him the choice of leaving voluntarily or staying in jail for up to six months. For fear of being detained for six months, he chose to depart.

Will the case of Mr. Galleon be a common occurrence for 300,000 Filipinos who are undocumented?

Mandatory detention

Any person who is in the United States is entitled to due process rights under the U.S. Constitution. This includes anyone who is present in the United States in unlawful status. The constitutional protections of due process and equal protection are not limited to U.S. citizens; they also apply to every person regardless of immigration status.

Generally, this means that the right to legal counsel and to a hearing should be afforded a person. While these rights exist, ICE officers may continue to detain a person while awaiting a court hearing. This happens in particular cases where the law limits the exercise of this right to certain individuals who are subject to mandatory detention and those who are arriving aliens.

The following persons are subject to mandatory detention:

  1. those who have criminal inadmissibility grounds;
  2. those with convictions of multiple crimes of moral turpitude, aggravated felonies and controlled substances among others;
  3. those who are inadmissible based on terrorist activities.

Arriving aliens also may not be granted bond hearing and could remain in custody until removed. The law defines an arriving alien as one who is coming to the United States at a port of entry or are seeking transit through the United States at a port of entry.

Release on bond

If an individual is not subject to mandatory detention or is not an arriving alien, either the ICE sets the bond or the immigration judge decides whether an individual is subject to release on bond. Until the arrested individual is heard, he remains incarcerated unless ICE makes a determination of a release on bond.

Generally, ICE counsel will not object to a release on bond if the individual is not a flight risk and other factors exist to show that the individual will appear on the date set for hearing. There is a lot of discretion on the part of the immigration judge on whether the individual is released on bond. It is also during these times when the detainee decides to just depart instead of staying in jail to await the hearing before the immigration judge.

While those who are in unauthorized presence are lumped into one category as being “undocumented,” each case will be treated differently depending on the circumstances of each case.

Given that the DHS has been given additional resources to enforce immigration law not only against those with criminal convictions, but also anyone who is found to be in unlawful status, it is important for those concerned to make timely informed decisions.

Should they decide to stay, they have to know the risks and prepare themselves to take legal steps when ICE comes knocking at their doors. The risk involves incarceration until released on bond. If they are not willing to take the risk, then the difficult decision to depart voluntarily becomes imminent.