lairdside

Here it is Anna:

http://www.usdoj.gov/eoir/vll/intdec/vol17/2750.pdf

Read it carefully and apply the narrowest interpretation you can think of. Imho, with this interpretation applied, it doesn't look so hot

It doesn't say "should" but rather "is warranted as a matter of discretion". Also, one man's significant equity may not be anothers

That's just for starters.

AnnaV

Hi, Lairdside,

Thanks for that link. The opinion itself, near the end, says that, "The finding of preconceived intent was the only negative factor cited by the immigration judge" in denying the adjustment application. With the "significant equity" presented by the US citizen wife and child, they concluded that granting the adjustment of status is warranted. I think that set up the precedent, don't you agree?

(Some people may consider this a 10-foot pole topic, but everything is published on the net.)

What I didn't understand from Mr Folinsky's post is his reference to Alonzo, which was a policy set up by the commissioner of the INS. It is a very broad interpretation of the law, and I think the SC just put them back on track. Maybe Mr F was just saying that interpreting Cavazos "broadly" may result in a similar treatment as Alonzo...?

I don't think he'll want to expound further though because this is a personal 10-foot poler for him. Too bad. Would have been educational.

Ranjini

Anna, I think what Mr. Folinsky is saying is that preconceived intent was found to be the only negative equity as far as Cavazos. But that it cannot be applied universally for every case with preconceived intent. Other factors could come into play and shift the end result in an entirely different direction...

Folinskyinla

Hi:

Cavazos was issued in 1980. Alonzo was in 1979. These were the two bedrock precedent decisions on the high "equitable" weight to be given to marriage to a U.S. citizen. It used to be common to quote those two cases together on that point.

Alonzo was pretty much ensconsed in the law and especially in the jurisidction of the Ninth Circuit. However, it took ONE Immigration Judge [Thomas Y.K. Fong] who tried to sidestep Alonzo [by separating the various frauds of Mr. Yang] which eventually did in Alonzo in total. The other postes in this string have missed the subtle points in that string of cases.

Although I still cite Cavazos as necessary, it should NEVER be used as a planning tool on how to break the law and I am of the opinion that although Cavazos is still good law, it is on shaky legal grounds and should not be relied on to remain good law. In particular, after the 1986 & 1996 legislation and 9/11/2001.

lairdside

That was my impression also. Sort of "Don't count your chickens before they are hatched, just beacause people got chicks before doesn't mean that you won't get ducklings".

lairdside

Is that Alonzo was decided by the Commisioner of the INS, who does not have authority over the BIA?

Take a look for Tijam, Int. Dec. 3372 (BIA, Dec. 10, 1998) if you get the chance. You may find it interesting

lairdside

Here it is:

http://www.usdoj.gov/eoir/efoia/bia/...dfDEC/3372.pdf

lairdside

If you are really bored you could also take a look at Matter of Cervantes, Int. Dec. 3380 (BIA Mar. 11, 1999).

Please note though that three circuit courts: Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998) cert. denied, 119 S.Ct. 1140 (1999); Henderson v. Reno, 157 F.3d 106 (2nd Cir. 1998), cert. denied sub nom Reno v. Navas, 119 S.Ct. 1141 (1999); Mayers v. U.S. I.N.S., __ F.3d __, 1999 WL 317121 (11th Cir., May 20, 1999). Have rejected the retroactivity analysis of Matter of Soriano which this ruling relied upon, in part, for the proposition that the changes made by the IIRIRA to section 212(i) that pertain to extreme hardship must be applied to pending cases.

AnnaV

That does make the point much clearer.

One big difference between Alonzo and Cavazos, though, is that Alonzo was a policy issued by the commissioner of the INS while Cavazos stems from a BIA ruling. I have seen some BIA rulings that actually stated that INS Instructions or policies have no authority over the BIA or the immigration judge. Therefore, Alonzo was as much a "law" as the infamous "30/60 day rule."

Although the idea behind Cavazos also started out as an Instruction or INS policy, the BIA basically said it is "meritorious" and may be "properly adopted by the immigration judge and the Board in exercising discetion on applications for relief under section 245."

For the record, the SC case (INS vs Yang) that is relevant to the Alonzo case presented the following question:

May the Immigration and Naturalization Service, when deciding whether to grant a discretionary waiver of deportation under the applicable provision of the Immigration and Nationality Act, take into account acts of fraud committed by an alien in connection to his entry into the United States?

To which the SC's conclusion was:

Yes. In a unanimous decision, authored by Justice Antonin Scalia, the Court ruled that in deciding whether to grant a waiver under the Immigration and Nationality Act, the Attorney General or her delegate, the Immigration and Naturalization Service, may take into account acts of fraud committed by the alien in connection to his entry into the United States. Justice Scalia wrote, the Act "imposes no limitations on the factors that the INS may consider in determining who, among the class of eligible aliens, should be granted relief."

What I don't see is how that ruling affects Cavazos. In my opinion, the INS policy of disregarding the alien's fraud or misrepresentation in gaining entry into the country is just wrong, and I completely agree with the SC.

Cavazos as a case law is there, good or bad, and until Congress changes the law or a higher court trumps it, it will be binding whether we like it or not. I personally don't see it as going away, but that is a matter of opinion.

With respect to it being used as a planning tool, anyone who is half-way literate and have read Cavazos could conceivably do that, but then so what? That's between him and his conscience. I just don't think that it's enough reason for propagating misinformation (not you, Mr. F, since you generally refuse to even talk about it, but some others) with regards to this 10-foot pole.

In any case, thanks for the enlightenment. At least I got to read some interesting new cases because of this thread.

AnnaV

I spent too much time debating the subject with my husband, I don't think I have the energy to do any more research tonight. I did read the Tijam case (one of the first cases I found when looking up Alonzo), though, and it's interesting how the BIA basically said that Matter of Alonzo does not apply to them because the Commissioner of the INS has no authority over the BIA.

From what I understand of Cavazos, the important point is that preconceived intent is the only negative factor and the penultimate paragraph is pretty clear about where the ruling is going. It's also funny that Cavazos married on the same day he arrived in the US. And still, the BIA stated that the immigrant intent was not clear.

Anyhow, I will look up the other cases you pointed out. Tomorrow, though. Thanks again for pointing them out.

Folinskyinla

Hi:

I suggest you re-read Cavazos under the most narrow interpretation you can find. Rather than declining to follow something from the INS, they followed an "OI" which they expressly noted they were not obligated to follow. BTW, "OI's" are internal "operating instructions" which do NOT have the force of law. [They weren't even public untl the myriad lawsuits filed John Lennon brought them to light]. The particular OI in that case no longer exists -- and would have been counter to the current 3/10 year bars to return after unlwaful presence.

Also, Cavazos had particularly strong equities on the POSITIVE side of the "equity" scale, and the BIA approved in "this case." The weight to be assigned to the positive equities was discussed in the follow-up Ibrahim case.

I will repeat -- Cavazos is still good law -- but its legal foundation is not as strong as it could be. I'm not going to be a DHS officer here, but I don't have to stretch my mind to counter Cavazos if I had to.

lairdside

No problem. I didn't mean to give your poor husband a headache

You know what case law is like, ever decreasing circles.......If you get bored with reading immigration cases I could always send you some of these Mental Health law cases I'm reading over the summer. I know I've had a few lively discussions with people, my husband included, on the issues involved.

Most people just can't handle talking about it in my experience, amazing how fearful they are

Ranjini

I'm enjoying reading the lively discussion going on here, Victoria No wonder Mr. Folinsky prefers to hide behind the Ten Foot pole Too many ramifications to be discussed in detail me thinks.....

lairdside

People can discuss them until they are blue in the face. The trouble is that after a point, to my mind anyhoo, hypotheticals become somewhat ineffectual. They cannot in nature be case specific and without the acid test of practise cannot accomplish anything other than going around in ever decreasing circles.

It can be frustrating `A nice walk in the sunshine would accomplish something more positive

Ranjini

That's a brilliantly said in a nutshell I have come to the same conclusion, myself...