Hypertweeky

Nah.. That is Ray!!

Ranjini

lairdside

Hi Anna,

I'd be more than happy to find other cases related to Cavazos for you but I strongly suspect that Mr F. can cite more off the top of his head than I could find. I'll take a look anyway though as soon as I have the time. In the meantime if you are bored.....

I personally am waiting for the first national survey of children with mental health needs who are incarcerated in juvenile detention centers awaiting community mental health services will be released at a Senate hearing July 7. The survey is expected to show that, across the country, significant numbers of children with mental disorders are being inappropriately warehoused in juvenile detention centers awaiting treatment.

It will be available online July 7 after 10:00 AM at: http://www.house.gov/reform/min/

That's my "cup of tea"

Your hubby's medical specialty isn't psychiatry by any chance? I need a forensic psychatrist to pick the brains of over a few things

Victoria.

AnnaV

Hi, Victoria,

I'll check that information out when it comes out. Unfortunately, my husband is a radiologist, not a psychiatrist. I don't think he knows any more about mental disorders in the psychiatric sense than other doctors from other specialties do, but he does have opinions on the organic basis of some mental disorders (he sees a lot of brain MRIs). We've had a lot of debates (is it getting obvious we like to argue? ) on the effects of frontal lobe damage on psychopathic/sociopathic tendencies, for example.

Juvenile mental health is a whole new area for me. I'll probably read up some on that subject.

Cavazos can wait. I was initially interested in Cavazos because of the ongoing debate here about entry with a B2/VWP vs K1/K3. The statement was always to the effect that "You'll have to show at the AOS interview that there was no intent." Even if only empirically, I think we know the answer to that one for now. Until the law is changed, that is.

Anna

Hypertweeky

Am I the only one who doesn't know who Cavazos is??.. Ok time to google..

AnnaV

Hi, Tweeky,

Matter of Cavazos is a BIA case. Here's the link that Lairdside originally posted:

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

Don't feel bad about not knowing who he is. I didn't either, until I stumbled onto this website and the periodic debates here about immigrant intent.

Anna

Hypertweeky

Oh! Thank you for the link Anna!
Take care!

lairdside

If the law is changed and the onus is shifted from the USCIS to the beneficiary to show lack of intent rather than presence of it... well this is what I can see happening.

Those who seek to defraud the system will be able to orchestrate a situation whereby they have masses of evidence which would seem to indicate that they did not have prior immigrant intent. Whereas many of those who did not have immigrant intent but neglected to arrange convenient evidence of the lack of such intent will be SOL.

Until DAO's acquire psychic powers how are they supposed to differentiate?

The paediatric/juvenile mental health can is full of worms. I wonder how people could want to disregard the fact that someone is not culpable, or does not have the same level of understanding of the consequences as a healthy/adult individual, or to see them tried and even subject to excecution as an adult penalty.

But they do.

inquisitive40

Changing the onus as stated above to have a person proving that there is no intent instead of the USCIS proving that there is intent is kinda like guilty until proven innocent.
What annoys me about all of this is the people who get married just so that they can move to the US and now has it all screwed up for everyone. If there were not a bucket load of fraudulent marriages , there would not be all these terrible immigration laws making it so difficult for the genuine couples to be together.
Patrick

AnnaV

I think that the presumption at the POE is that there IS immigrant intent, and it's up to the applicant for entry to overcome that presumption. I've always seen Cavazos as a compromise of sorts. It does not say anything about immigrant intent as being legal, just that it's forgiven under certain circumstances. Have you perchance read Errico? It gives a good historical perspective to Alonzo. I think there must be an analogous case to Cavazos, I just haven't found it yet.

After reading through the decisions of the 9th circuit and cases that are similar to Yang's, I can't help feeling that the immigration laws in this country are actually pretty lax... under certain circumstances. Tijam is another case. Mr F says that she's now naturalized. If you've read the specifics to her case, I'm sure you must have felt some outrage, too.

The problem with some people in the newsgroup is that they equate marrying on a tourist visa (B2 or VWP) as outright fraud based on the assumption that there MUST have been immigrant intent and there is just no other possibility. I think they feel that way because of the existence of the K1/K3 visas. The law, however, allows for other means to immigrate through marriage.

I think the courts are smart to remove intent as one item in the equation (under certain circumstances). After all, how can you prove intent or lack thereof? You can prove lies at the POE or at the consulate, but that shifts the "sin" to material misrepresentation, not mere intent. The adjudicators can either err on the side of the immigrant or on the side of the law. I think at this point, for the sake of family unity, they'd rather err on the side of the immigrant and give him/her the benefit of the doubt.

That is, until they get psychic abilities. Or they really want to tighten immigration through that particular channel.

As for juvenile mental health, I think that the law has a specific definition for "understanding the consequences of your action". That's another over-used defense, and that's probably why the pendulum tends to swing the other way. If the crime is heinous enough, members of society will want to see someone hanged, culpable or not. It's the old lynch mob mentality, I guess. It is difficult to feel sympathy towards someone who has just committed a heinous crime. I do wish there is a better way, too. That's probably why you're interested in this, right?

inquisitive40

Funny thing that my lawyer said was that he had several cases which included entering the country illegally and marry a USC and got their status adjusted, seems there are ways to work the system if you know the loop holes. He cited some sort of extenuating circumstance which was put to the judge and the adjustment was granted. My belief always was that if you enter illegally, then you cannot adjust status, I had heard from people of other cases also like this but until I heard it from my lawyer I was very sceptical.
As far as lax goes,, back in Ireland a friend married a girl from Hong Kong, they are living in Ireland, it took them 15 minutes of paperwork to adjust her status once they were married, now THAT is lax
Patrick

Ranjini

Are you sure he said "enter the country illegally"?

inquisitive40

Yup,, across the Mexican border.. that was what I thought,,, all the laws state you can't adjust if you enter illegally no matter what the circumstances, but I have heard of cases that have been successful.
Patrick

lairdside

I'm sorry, I wasn't referring to the issue of immigrant intent being examined at POE but upon Adjustment of Status.

I must admit that I didn't feel outrage. Perhaps she lied, perhaps she didn't. Either way I felt that the humanitarian concerns outweighed the severity of her possible "oversights" or "indiscretions".

I've seen the above scenarios referred to as subjective and objective fraud. There are provisions in the statue itself for certain circumstances which forgive certain transcretions regarding entry to the US in the ostensible interest of family unity.

"Want to" I believe is the heart of the matter.

Hmm.. I believe that there is a better way and that people just have to choose it. The lynch mentality is a fear reaction, stemming from fear and guilt. I don't believe that society can solve it's psychoneurotic ills by demanding human sacrifice.

I believe that how we treat the weak and disadvantaged in our society, those least able to help themselves, is a measure of the civilization or barbarism of the society itself and that the choice we make reflects upon ourselves.

Anyways, I could rant on about this for hours and bore everyone to death. I'm interested in Mental Health Advocacy and Law for many reasons. Interested enough to be busting my ass on this J.D./PhD - half done, half to go *sigh*

Folinskyinla

Hi:

Ah, the Errico decision. That case was later followed by INS v. Reid 420 US 619 (1975). [I have Westlaw up and running in a separate window].

One must remember the law of unintended consequences. The nature of the Common Law use of cases is to extrapolate general principals from specific case -- and the Supreme Court exemplifies that role. But at times, the lawyers in trenches will start applying that general case to their specific cases -- often trying to stretch the legal envelope. And then the courts will gag a bit.

Errico involved the old section 241(f) [which was amended in 1980 to be a form of discretionary relief and is now found at 237(a)(1)(H)] which provided for a MANDATORY defense to deportation because of entry fraud if you had the qualifying US relative.

It is not at all uncommon for the same conduct to fall under multiple grounds of deportability. In Errico, the INS charged the alien with a ground of deportability OTHER than fraud, but which was factually based upon the fraud.

I know of one law firm in Los Angeles [still in existence] which started asserting 241(f) to visitor visa overstay charges by arguing that their clients committed visa fraud when they applied for tourist visas by concealing an intent to remain in the United States, and since they subsequently had a US born child, they were excused from their fraud. Of course, this is weird because it was the alien trying to prove their OWN fraud.

But Errico seemed to support that. So later Reid came down the pike -- and Congress later eliminated the problem by clarifying the statute a bit AND making the relief discretionary.

Another interesting case from the Supremes is Phinpathya from the early 80's. In 1963, the Supremes had issued the classic "entry" case in Rosenberg v Flueti. Over the years, the Flueti "brief, innocent, casual & not meaningfully interruptive" rubric had been applied to permissible breaks in the "continuous presence" requirement for section 244 "suspension of deportation". The issue presented to the Supremes was whether or not Ms. Phinpathya's departure fit within that rubric. The Government argued that it was not brief, it was no innocent, and it wasn't casual" and Mrs. P argued on "meaningfully interruptive." [IMHO, the Government was right, but there were equities on Mrs. P's side because of their child's condition and her husband was granted suspension].

Phinpathya is often described as a 5-4 decision. But on the JUDGEMENT, Phinpatya lost 9-zip. The dissent agreed with the Government's position. The majority went BEYOND the issues briefed and simply ruled that the plain language of the statute didn't allow for ANY absence -- thereby going against nearly 20 years of accpeted practice.

BTW, in 1986, Congress legislatively "overruled" Phinpathya by amendment to the statute. I actaully now often use Phinpathya for the principle that the statute controls.

A further BTW, before you crow, "ah, another 9th Circuit reversal" -- take a look at INS v Chada. Chada is considered a very important case outside of immigration law.