lairdside

I'll be about

I will be working and going to the gym etc but I'm off college for the summer now so I actually have more free time than I had before

I'm doing some preparatory reading for next year and doing overtime at work but I still have more time, feels like a holiday, well almost..lol

Folinskyinla

Hi:

Exercise for the student: read the 9th Circuit case that was overruled. It relied on two previous decisions, Delmundo & Braun -- those two cases relied on Alonzo. I think it is interesting that Justice Scalia didn't mention Alonzo -- my reading was that it was permissible to narrowly interpret Alonzo. In Tijam, the BIA went beyond the Supreme Court and simply declined to follow Alonzo. BTW, please note that Tijam WON her case. I am informed that she is now a US citizen.

BTW, the 9th Cir is not always the most liberal of circuits. In the application of 212(c) to deportation proceedings started by the 2nd's Francis case in 1976 [BTW, immigration is one of the few areas where the government often LOSES on "equal protection" arguments subject to "rational basis" review -- an anomoly noted by constitutional law scholars], the 9th at first was the ONLY circuit that refused to go along and then reversed themselves.

I think Yang had very "bad" facts.

On Palsgraf, Justice Andrews in dissent was no slouch either. He took note of the Polemis case which was decided shortly before. Of interest were the two "Wagon Mound" cases from the UK -- I remember being confused abut the different results arising from the SAME tribunal on the SAME situation. Of course, I was not yet conversant with the idea of "contributory negligence." [BTW, when I go to our summer alumni/student functions of my law school, I'm sometimes asked "has the law really changed all that much?" and I respond "Is contributory negligence still a complete defense?"].

It pays to remember that in Palsgraf, the railroad employees WERE, in fact negligent. There was foreseeability of harm to that package.

AnnaV

Why do I feel like I'm getting homework?

I can't find the actual cases for Delmundo or Braun, but from the references to them that I have seen, they were both 9th circuit cases. So, it would seem like the 9th circuit had been using Alonzo for some time in their decisions (at least Delmundo, Braun and Yang). They're just being consistent, I guess. Maybe they really liked Alonzo... because it simplifies the analysis a lot?

As for Tijam, from what I understand of the BIA ruling, she was allowed to immigrate through other means such as through employment (which, I think was available to her at the time), not withstanding the fraud involved in her initial entry. Also, the BIA basically said that the fraud and misrepresentation part was not conclusive (pretty much) or, at least, the IJ didn't explicitly say it was. I personally think it's a cop out. And, of course, that darned equity equation again. I've read repeatedly about Congress' desire to keep the family unit together and that the United States government is not in the business of keeping family members apart. Ironic in light of the long visa delays that are going on.

I don't know what happened after the case was sent back to the IJ, whether or not she immigrated through the employment petition or through the original family petition. Is there a way to find out?

As for Palsgraf, yes there was negligence, and there was forseeability of harm to the package, but not to Mrs Palsgraf since a "prudent eye" would not have known that there were explosives in the package. I think that what Justice Cardozo was saying was that she had no standing to sue because the act of negligence was not directed at her, and the effects of the act were not forseeable with respect to committing her bodily harm. (Is this too simplistic?) I really prefer his version over Justice Andrews'. I can just imagine the mess tort law would be in if Andrews' take on negligence and forseeability takes hold.

Just Jenney

You leave out too many details:

1) Does your friend have a K1 fiancee visa?

2) If not, what evidence will she bring with her to show the POE officials that she will return to her country of origin after the wedding?

3) If she is marrying a USC, her husband-to-be will be her sponsor, not you or your husband.

4) Since you're not the USC, you cannot co-sponsor the affidavit with your friend's husband-to-be. But your husband might be able to.

5) If you/your husband (whoever is the USC) is going to co-sponsor, do you/he meet the minimum income requirements to do so?

6) What affidavit of support will you/your husband be co-sponsoring? The I-134 (for K1 fiancee visa) or the I-864 (for AOS after marriage)?

Please provide more details about these areas so we can give you a better response.

~ Jenney

Ranjini

Lol ... Victoria. I remember a time when you were chasing Cavazos and doing exactly what Anna is doing right now Only now we have Alonzo, Yang, Delmundo & Braun etc. thrown into the mix...

lairdside

I had personal reasons for being interested in the issues surrounding Cavazos. I did read many other related cases, including those above (I have Westlaw access at home because of my course).

I just have my hands full right now, people's attitudes and reactions towards the issues I wish to tackle are generally not good. Even my own husband has difficulty understanding my stance. I have chosen my fight, it's enough to keep me occupied certainly for the moment, without anything else

Folinskyinla

Hi:

A circuit court will rely on its own decisions on the point -- that is the nature of the beast. My point on Alonzo is that the GOVERNMENT was the one who gave the broad gloss to the decision that the gravity of the fraud itself could not be used in adjudicating a waiver. And this was pretty much nationwide. In fact, because the spread of various administrative jurisdictions and appeals therefrom, Alonzo usually was cited only **INS** adjudications and not in immigration court. As a result, there was very little in the way of published case law from the courts on Alonzo [I just checked WestLaw].

The funny thing is that CIS now often misinterprets the progeny of Yang -- the case law is that the nature of the misdeed SHOULD be considered in the case as a WHOLE. However, unless they are educated in the law, CIS examiners often look only at the "extreme hardship" and ignore the fact that the how "extreme" the hardship is governed in part by the nature of the misdeed.

On Palsgraf -- you are entitled to your opinion -- but the debate goes on to this day -- Cardozo v Andrews. Wagon Mound 1 is considered to be a restriction on Polemis but what about Wagon Mound 2? Number 2 seems to cut the difference.

AnnaV

Uhm, just wanted to add that I read someone describe the 9th circuit to be "living in its own parallel judicial universe." I can't remember all the cases now (some involving healthcare law) where the 9th pretty much ignored precedential cases including those from the SC, and in some other cases, they pretty much made up the law by themselves. Of course, as soon as they went up to the SC, the rulings were invariably reversed.

In the Yang case, Scalia specifically noted that the INS policy of not considering the underlying fraudulent entry in determining the eligibility for waiver was "facilitated by the 9th circuit's frequent intimations that the statute forbade consideration of the initial fraud." I'm no longer surprised as to the results of Delmundo and Braun.

Justice Scalia also did not shoot down Alonzo per se (as I understand it). In fact, the then INS (and I guess USCIS is now bound by it too) can not irrationally depart from its policy because it will be an "arbitrary, capricious, abuse of discretion," which was Tijam's argument. What he did say was that the INS was allowed to take a narrow view of what constitutes entry fraud. The 9th said all the activities of Yang were intertwined with his entry fraud and should therefore not be counted as separate (thus being "forgiven" by the INS policy per Alonzo), while the SC pretty much gives the AG full discretion in whether to consider them as part of the entry fraud or not.

P.S. Is there an analogous disease in law school to "Second Year Medical Student Syndrome?"

AnnaV

Hi,

I read your older posts regarding Cavazos, including the letter from the USCIS Director (I think) about their policy with regards to intent. I have also read the other cases you and Mr F pointed out, and you are right in describing it as a circle ever getting smaller. Interesting, for example, the way Ibrahim refined Cavazos. I don't have access to WestLaw, but if you have time, can you let me know which other cases are refining or redefining Cavazos? I'm curious now because of Mr F's statement that it is on shaky legal ground. I still think Cavazos is good law, and I doubt that Congress will change it (because of family unity, etc), but that is just my opinion.

Anna

Bluegrass Lass

Oh, Hyper! You have a kitten?! Scott and I just adopted 3 kittens from the local animal shelter, and they have been driving us absolutely nuts. But they are such cute little things!

When you exercise you fart more, eh? So no one should stand behind you when you bend over to pick up those weights, eh?

jcapulet

I think Hyper likes to swim too...so if you are at the pool and see bubbles spouting 20 feet out of the water, it's not a whale there, it's just Hyper farting

Ranjini

I wonder if that's hubby on her newest smiley right at top of her dancing gif's

Folinskyinla

Hi:

The BIA can always overrule Cavazos. Also, an individual IJ or the BIA may find a way to distinguish it its facts. Do note also that the 1996 legislation removed judicial review of discretionary adjustment denials -- so there will be very few, if any court cases on the subject in the future.

You might also want to look up the concept of "sub silentio".

Hypertweeky

You have adopted 3 kittens?? Aww!!. I wanted to adopt a kitten from the shelter but a friend of mine gave me the kitten as a belated B-day present, he is so cute!!, have you named them yet?. My kitten's name is Tiger.. he very well deserves the name, he sleeps during the day and goes psychotic at night
I fart more yeah.. but I don't lift any weights.. I am swimmer, I don't want to be a muscle woman

Hypertweeky

Hurricane Hyper