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Filipino immigrant spared deportation by US Supreme Court

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Joel was eight years old when he entered the United States. At age 22, he had trouble with the law. A victim was shot and killed. Although Joel was not the principal accused in the crime, he was charged and convicted as an accessory to manslaughter.

The criminal court gave him a suspended sentence of six years and he was released on probation. In 2005, 17 years after the criminal incident when Joel was already 39 years old, the US Department of Homeland Security commenced deportation proceedings against him. The notice to appear at the hearing stated that Joel was deportable based on the voluntary manslaughter conviction.

Joel has lived in the US continuously for the last 36 years. He has a 14-year-old daughter. His parents and two sisters are American citizens. Had Joel been naturalized as a citizen before his entanglement with the criminal justice system, he could have altogether avoided deportation proceedings. Unfortunately, his parents never filed his citizenship application when he was still a minor; hence, he remained a green card holder through adulthood.

Joel appeared before the immigration court to appeal his removal. He argued that the basis for his removal should be waived under the former Section 212 (c) of the Immigration and Nationality Act (INA), a provision repealed in 1996 but which is still given retroactive applicability to certain crimes prior to the law’s repeal.

Despite his efforts, Joel’s waiver application was denied. The immigration court ordered Joel deported. He appealed this decision to the Board of Immigration Appeals (BIA) but was unsuccessful. Joel then elevated his case to the Ninth Circuit Court of Appeals. Again, he was denied relief. The attorneys for Joel then filed a Petition for Certiorari before the US Supreme Court.

This time, Joel’s luck changed. The US Supreme Court granted certiorari and remanded the case of Joel back to the Ninth Circuit Court of Appeals. The US high court concluded that the decision of the BIA in ordering Joel’s deportation based on a “comparable approach” of assessing his waiver defense was arbitrary and capricious.

What is the “comparable approach” that the US Supreme Court deemed  arbitrary?

Non-US citizens who have a prior criminal conviction may be deported as a consequence of the crime. But not all crimes are grounds for removal. Felony convictions that have serious consequences to one’s immigration status are the “aggravated felonies,” i.e. murder, rape or sexual abuse of minor, illicit trafficking in a controlled substance, among others.

Under the “comparable approach” used by the BIA, the waiver could be granted only if the ground for which the deportee was being removed has a comparable ground for exclusion.

The Supreme Court said using this approach was a violation of the constitutional principle of equal protection of the law.

Obama vs Arizona

Another immigration case is now before the Supreme Court.  The Obama administration filed a lawsuit to block the enforcement of Arizona’s immigration law which allows State police to arrest people without warrants if they have probable cause to believe that they are illegal aliens.

In the same week that the decision on Joel’s case was rendered, the US Supreme Court also accepted the administration’s case for review and agreed to make a determination on whether a state like Arizona may restrict the federal government’s power to regulate immigration and/or grant unto itself broad police powers over immigration issues. A decision is expected sometime in late June 2012.

SC should not be politically driven

For the Supreme Court to grant certiorari on a removal case is certainly not a typical occurrence. But while the case had been penned by a perceived progressive or liberal-leaning Justice, Elena Kagan, the decision is based on solid constitutional grounds and was approved unanimously by all members of the US Supreme Court.

It would be difficult to conclude, under the circumstances, that the decision was simply motivated by the desire of the Supreme Court to influence immigration policy or that it  wholly intended to serve strategic political interests.

As an aside but certainly in the same vein, decisions penned by each individual justice on behalf of the Philippine Supreme Court should be equally perceived as simply upholding the constitutional rights of the citizenry and nothing else. This is paramount if public trust in the Court is to be deserved. The integrity of the individual members who are tasked to uphold the rule of law should be perceived as intact and their decisions should pass constitutional muster independent of their ideological inclinations or personal loyalties if the institution is to survive.

(Tancinco may be reached at law@tancinco.com or at 877 7177 or 721 1963)


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Tags: Deportation , Immigration , United States , US

  • http://twitter.com/jeddiwill Jedd Tougas

    Parents taking your advice may easily drive children further away; don’t look at technology as a soul sucking devourer of children, but as a tool to LEARN new types of interaction with people in more avenues (Many travelers, soldiers, etc., would never give up skype or face-time after actually trying it).  Technology will never replace the one on one time we spend with our children, but it can give us access to said children when in the past there was none, hello summer camp.  Also, I know many a pastor or priest who is now using technology to interact with more individuals, basically we need to find ways to make technology fit our needs, not fit our needs to technology.  Which usually simply requires some education on the side of the parent, as well as some rules and an understanding about what technology is within the family.

  • Anonymous

    The US Supreme Court and The Philippine Supreme Court are on the same page when it comes to the freedom and rights of individual. No one but no one should be able top trample on the freedom of an individuals rights. As simple as that. I hope the legal adviser of abnoy will have time to read the decision ofn the US Supreme Court in this case.

    • Anonymous

      You better again what was noted:” As an aside but certainly in the same vein, decisions penned by each individual justice on behalf of the Philippine Supreme Court should be equally perceived as simply upholding the constitutional rights of the citizenry and nothing else is is paramount if public trust in the Court is to be deserved. The integrity of the individual members who are tasked to uphold the rule of law should be perceived as intact and their decisions should pass constitutional muster independent of their ideological inclinations or personal loyalties if the institution is to survive”.In the case of Corona, he is using the Supreme Court  to protect GMA at all cost.

    • https://me.yahoo.com/a/e4MSiP0xr543.QLl52oHiaSa8w2Tosmo4t4-#43de0 desper

      Wrong analogy!
      Case 1: The US SC spared a man to be deported because the criminal act committed was not an aggravated felony.
      Case 2: The PHL SC allowed gloria arroyo to leave although she will be charged of a non-bailable offense.
      And that makes the US and PHL SCs to be in the same page when it comes to freedom and rights of an individual?

      • Anonymous

        the right of an individual to choose   his/her right to travel is guaranteed in  both US and Philipiines Constitution. The right of individual against arbitrary detention is equally guaranteed in both constitutiobn.
        The case you mention has not yet been filed  against GMA when the TRO was issued by the Supreme Court . If there was a case filed against gma, the supreme court would dismiss the case outright. When the govenment find out that a TRO was issued against  the hold departure order the DOJ-Comelec investigation panel rush the filing of the case against GMA for electoral sabotage at the instigation and machination of abnoy and de lima..

      • Anonymous

        You live up to your monicker for failing to see beyond the rush of the SC to issue the TRO!  Is it not surprising that the bail money was available immediately after the TRO was issued and also their air tickets?  That is highly suspicious!  The rush to file charges of electoral sabotage was the proper antidote to nullify the TRO!

    • Anonymous

      “As simple as that”. — pangitbudhiko

      tonyabs noted it very well what was said as an aside: “the decisions … should be equally PERCEIVED (emphasis mine) as simply upholding the constitutional rights of the citizens and nothing else …..”.

      The way you pen your comments how could we perceive that you are simply upholding the constitutional rights of the citizens when you PANGITBUDHIKO display clear bias by calling people names when it is a person’s rights not to be bullied, insulted and verbally abused as protected by the consititution’s Bill of Rights?

      pangitbudhiko, can you not attack the issues without resorting to unsubstantiated innuendos and hurtful, bordering on libelous, statements?

      • Anonymous

        I never called peoples name, yes I must admit that I am calling noynoy-abnoy because he deserved that name and that is his monicker. (moniker is associated to an individual who manifest something out of the of the ordinary. If a person smile every minute of the day his/her monicker would be HAPPY, Now if a person is acting like an abnormal person, then his/her monicker would  ABNOY  or soemthing to that effect. Now if an individual manifest for his/her like for sex then his/her monicker would be SEX MANIAC, SO to make it clear and simple Iam not simply calling abnoy-abnoy becasue he is showing signs of abnormality

  • http://pulse.yahoo.com/_VYVO5BIPX6WO4IGFRGIQE3P6HY Ruben

    I’m not impressed with this Atty. Tancinco.  She’s all around the media advertising herself.

  • http://pulse.yahoo.com/_WWZMSQ4Z74QJUPXFOMEKD6KKFM kronos

    With all the arguments presented, what seems not mentioned was “were the charges against GMA considered aggravated felony?”  Should we follow US-style decisions?  The US Justice system also has its pitfalls that can never be applied to Philippine scenarios.  In the US should you be charged with any crime against ‘national security’–you lose any right as an individual.  We shouldnt be going in this direction because US itself is in a ‘f__d-up’ situation in more ways than we falsely worship it to be.

    I could just imagine how much Joel spent for his defense that he fought it all the way up to the Supreme Court. Good for him that it ended up in his favore just for the main reason that he literally grew up in the US and is more American than being Filipino. If he didnt do so and ended up back here in Philippines, I dont know how long it will take for him to finally realize that fighting to stay in the US for all this is not really worth it.

  • Dave Francis

    Wouldn’t it be a novelty if the U.S. government worked for the major majority
    of the American people? Instead they have cultivated a relationship with
    Communist founded (ACLU), American Civil Liberties Union and the (SPLC)
    Southern Poverty Law Center, now being sued for slander, libel and
    defamation by Richard Mack, former sheriff of Graham County, Arizona, and
    founder of the Constitutional Sheriffs and Peace Officers Association. But the
    Obama Administration seemed to be adverse against laws, which constitute the
    removal by deportation of illegal migrants and immigrants. At a steady pace
    Obama’s Department of Justice was asserting its power earlier the
    administration to do exactly that, but then the president exercised his
    authority by executive order, without too much notice cut back on apprehensions
    of foreign nationals within the 50 states. Since his advancement of a second
    term in the Oval office, he seems to be genuflecting to the largest block of
    all, the Hispanic population. He has had a failing grade by illegal and legal
    immigrants, and now to curry favor has directed ICE agents not to apprehend illegal
    aliens who have minor criminal records or not at all.

     

    While patriotic Americans, the TEA PARTY are resolutely against this sudden
    outrageous act, with a stroke of Obama’s pen. The ‘Rule of Law’ handed down to
    us from the 1986 Immigration Control and Reform bill has additionally been
    subverted to gain an advantage with the millions of foreigners who have illegal
    settled here. Today our enforcement laws are a ‘Lost Cause” as the border
    fence is a poor example of what the perimeter is supposed to be on our Southern
    Border. The fence that remains incomplete is still easily skirted by drug
    cartel gangsters and the smuggling of human cargo into our cities. The
    Americans who along the border region, still live in fear of hostile invasion
    of persons, cutting cattle fences, leaving piles of garbage and some who even
    violate their homes. I have heard that the numbers of migrants arrested have
    dropped, but what about the 20 million plus already here, what about the 8 or 9
    million who have jobs, that if displaced would soon be occupied by citizen and
    permanent residents. Even today the private business sector still believe they
    are above the law, but even the slowdown of immigration audits have a very
    different opinion as business that hire foreigners are on the federal court
    dockets.

     

    Even so Mayors like Antonio Villaraigosa thinks enforcement laws, don’t apply to them. The
    spendthrifts in Washington has never owned up to the ongoing expenditures for
    the illegal alien assault? Although highly studied by the Heritage Foundation projects
    costs of $113 billion dollars annually. Then the godfather Sanctuary city of Los
    Angeles County Supervisor Michael Antonovich claimed the “total cost for
    illegal immigrants to county taxpayers” was more than $1.6 billion in 2010.

     

    SO WHAT IS THE COSTS
    TO SUPPORT ILLEGAL IMMIGRANTS (MIGRANTS) IN YOUR STATE?  BOTH PARTIES CAN
    BE ACCUSED OF THIS TRAVESTY?  THAT
    INCLUDES NOT ENACTING A BILL EVER, THAT ENTRY SHOULD BE CLARIFIED AS A FELONY.
    DELIBERATE UNDERMINING LAWS TO ENCOURAGE ILLEGAL PERSONS TO COME HERE AS LOW
    PRICED LABOR AND FOR DEMOCRATS MILLIONS OF VOTES. THE TEA PARTY VITAL
    INITIATIVE IS TO GET RID OF—ALL—INCUMBENTS, “WHILE WE STILL CAN”.

     

     

    After Newt Gingrich speech
    that people who have been here for 25 years, should be at least be able to
    stay. However this would be an impossible task, as everyone who have overstayed
    are guilty of a—FELONY. To Work, to get a job they are culpable by ID theft. They
    must have fraudulent ID to be hired and further to obtain other official
    documents.

     

     

    This Los Angeles Mayor has corresponded with ICE, because he
    doesn’t want to impose ‘Secure Communities, on the gigantic illegal alien neighborhoods.
       However, what makes his county or city any
    different from the rest of the country? Then Mayors, chief of police and other
    elected officials also think their exempt, by enacting ordinances to adopt
    Sanctuary Cities. Similar event is occurring in New Haven Connecticut where
    this mindless Major DeStefano wants illegal aliens the right to vote and
    is going to lobby the state legislature to allow the communities immigrants,
    including non-citizens, to vote in local elections. A new Pew Research Center
    poll for 2012 elections has indicated that incensed members of the public are
    going unseat incumbents throwing them out of office. Perhaps while the American
    electorate are in this angry mood they should add Governors, Mayors and city
    Councilors to the list. Head the list with Mayor DeStefano, as Non-citizens
    means illegal immigrants can vote in local elections to assure the mayor
    cannot lose the next election as he almost did in the past election. Add Mayor
    Villaraigosa, as he desires to undermine what little enforcement ICE has the
    authority to impose. Illegal Immigration is riding high with the economy and
    jobs.

     

     

    As all are connected by the thread of financial instability?
    Americans seem to underestimate the cost for subsidizing illegal parents with
    their children. Smuggled into the United States through international airline
    terminals a immigration official is unable to determine if a women is pregnant
    and coming here to relive Americans of their welfare and public assistance
    programs. This is not confined to just airlines as any entry port along the
    border, is just as open to a female carrying a fetus. It is estimated that
    300.000 women enter America under force deception, solely to gain free health
    care for their unborn child; others simply reach America through the thousands
    of miles of undefended border. The United States has an antiquated system of
    entry, without any means of tracking the individual once inside our borders.
    But however charitable our country is, we just cannot continue on this path.
    Costs are just gargantuan, which is further attenuated by the unsympathetic
    judicial systems that have forced taxpayers to carry the outrageous burden of
    the payee for everything financial? By law taxpayers are extorted of through
    taxes for illegal children to k-12, with free breakfast and lunches.

     

    Under the present law must pay for food stamps, low income
    housing; just to name a few. No state is exempt from the 14th
    Amendment law, to supply free welfare to any child born within the USA.
    Currently there is a bill in passage with 80 sponsors to stop this travesty of
    our laws. Rep. Steve King’s (R-IA) Birthright
    Citizenship Act of 2011, which would stop the misinterpreted practice of
    instant citizenship to children of illegal alien parents, unless one parent is
    either a citizen or naturalized citizen. Change is needed and only voters
    harassing their US and state lawmakers, will bring some sanity to this
    notorious law. Change also is required to stop nationwide businesses hiring
    illegal workers. Every American has heard of the Mandatory E-Verify law that has
    now 72 sponsors. With only 28 co-sponsors to go forward, the E-Verify, ‘THE
    LEGAL WORKFORCE ACT’ can and will punish employers who hire unauthorized
    workers. Again American voter’s participation can make the difference by
    pressing Congressional members in the House to pass this bill. The ‘Legal
    Workforce Act’ is massively beneficial to jobless people, who quickly see an
    opportunity when work is scarce. Commit yourself to contact your
    Representatives and insist they sponsor ‘The Legal Workforce Act’ The bill will
    have the advantage of not only penalizing inveterate business owners, but this
    potential law will send illegal aliens scurrying home, as with no work
    available that is their only option, taking family members with them.

     

     

    This will bring to a halt
    of intimidation by the Department of Justice on states that has found it
    impossible to keep financially supporting millions of invaders who arrived and
    stayed, by whatever means. This is all complicated by the attachment of faith
    groups, the radical open border nuts and the special interest lobby, who think
    we own the world a living.  Just remember
    that most business owners have no conscious, just the thought of cheap labor
    adding to the additional profits; or the Democratic side perpetually looking
    for more voters, no matter the consequence to the working population. We saw
    this materialize in previous elections with the ACORN organization registering
    non-citizens to vote. There have been eleven State attorney General prosecuting
    these people, but there already setting up the canvassers under a different
    name. Our voting system has been compromised, so we must demand everybody who
    votes possess some kind of official picture ID.

     

     

    Either party seems to
    ignore the fact that taxpayers must bear the cost of carrying people from other
    countries and this is entirely wrong. Our country is being vigorously reset by
    the Liberal extremists and progressives and radical environmentalists. The
    latter would have all on bicycles than exploit the huge mineral and oil
    resources that lay beneath the earth. We have a massive abundance of oil
    deposits, natural gas, clean coal that can power our country for generations.
    Doesn’t mean we cannot tap the wind, geothermal a solar energy, but not rides
    into it blindly as President Obama and others have tried to do. Recognize that
    the TEA PARTY are the only sane party (The American physical Conservatives) and
    Independents for avoiding deficit spending, reduction of overall  government spending, national debt reduction,
    free trade, deregulation and of ultimate importance lower taxes. This includes
    rigid enforcement of all laws and no amnesty for persons who trespass in our
    country.

     

     

    As a voter its imperative you call Washington at
    202-224-3121, or you can read about this indignation at NumbersUSA website.
    America does and always has welcomed—LEGAL IMMIGRANTS—and always will. The 50
    states also welcome highly skilled workers who are educated in the Sciences,
    Engineering and technology. These Immigrants will never end up in the welfare
    lines. This country must inhibit the poverty from other countries, as we cannot
    even look after our own people who are in dire need of food and a decent life.

     

    NO COPYRIGHT, EVER! DISTRIBUTE TO ALL TAXPAYING AMERICANS.

  • KennonKid

    It could have been a very nice read until the last part where the Ms. Tancinco implied to equate the Philippine SC with the US SC based on decisions and rulings. It’s a very far cry. Very much different.

    Starting with a Traffic court judges to Superior court judges up to the tip, the SC judges, all of them are very transparent in everything. There exist the most efficient check-n-balance system and as to how each judges can censure or support each other. And in my few years stay in America, I’ve never heard of a ‘kupal’ judge who’d stick to his spot even at a slighest hint of wrongdoing. They resign for self-prservation.

    Not like ours here in Manila…. mostly are really ‘makapal’!

    • Anonymous

      You missed the point.  The article simply implied, that if justices had unquestionable integrity – SC decisions would not be adjudged a “political” decision.

      And exactly to your point – the article IS saying:

       ”NOT LIKE OURS HERE.”

  • Anonymous

    yawwn…..



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