Some points about tourist visa AOS
Jan 28th 2003, 3:25 am
#16
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Joined: May 2002
Location: Living in Oblivion
Posts: 3,668
Re: Some points about tourist visa AOS
Originally posted by Ranjini
I hope someone can answer that question for you, with definite a yes or no..... but read more carefully and you will find your answer.
I hope someone can answer that question for you, with definite a yes or no..... but read more carefully and you will find your answer.
Have you not been paying attention the last week while this debate has been going on!
The answer is..... there is no definate answer - it is such a grey area. You can read the INS rules on it anyway you like. Thats why I suggest not putting it as an option to people unless they are leaving the country after they have got married.
Patrick
Jan 28th 2003, 3:33 am
#17
Banned
Joined: Nov 2001
Posts: 1,933
Re: Some points about tourist visa AOS
[QUOTE]Originally posted by Paulgani
"Patrick" wrote in message
If Congress chooses to close a legal loophole, so be it. That is their right (and
responsibility).
Paulgani
My point of view exactly. The onus is on the government to close legal loopholes.... if they perceive this particular one we are talking about to be a threat to national security ( the analogy of the plane and the WTC towers being touted around on this forum being one, for example). And I personally do not consider it immoral for someone to point the way to it as long as it exists. Either lawyer or layman....
"Patrick" wrote in message
If Congress chooses to close a legal loophole, so be it. That is their right (and
responsibility).
Paulgani
My point of view exactly. The onus is on the government to close legal loopholes.... if they perceive this particular one we are talking about to be a threat to national security ( the analogy of the plane and the WTC towers being touted around on this forum being one, for example). And I personally do not consider it immoral for someone to point the way to it as long as it exists. Either lawyer or layman....
Jan 28th 2003, 3:49 am
#18
Banned
Joined: Nov 2001
Posts: 1,933
Re: Some points about tourist visa AOS
Originally posted by Patrick
The answer is..... there is no definate answer - it is such a grey area. You can read the INS rules on it anyway you like. Thats why I suggest not putting it as an option to people unless they are leaving the country after they have got married.
Patrick
The answer is..... there is no definate answer - it is such a grey area. You can read the INS rules on it anyway you like. Thats why I suggest not putting it as an option to people unless they are leaving the country after they have got married.
Patrick
I also think that anyone who does not have that certain level of intelligence should not even be attempting immigration without a lawyer. So the question of putting out an option to anyone who might misuse it does not arise to my way of thinking..... I would say to these people "go yourself a good immigration lawyer".
Quite frankly, I don't enjoy getting into any kind of discussion with you.... we obviously do not think the same way.
The fact that I have personally handled all the paperwork since the Consulate stage, adjusting myself and my aging-out K2 son and reaching the point of naturalization without any problems should say something to you....
Something you have to learn is to respect the views of other forumers, if you want respect for yours.....
Jan 28th 2003, 4:17 am
#19
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: Some points about tourist visa AOS
[QUOTE]Originally posted by Ranjini
Hi:
A further thought: Paul makes reference to the BIA cases of Cavazos and Ibrahim. He is correct that this is BIA case law that is binding on the INS and the Immigration Courts. However, these cases deal with DISCRETION which is a subjective determination. And case law can be REVERSED.
On the forgiveness of fraud [note, not pre-concieved intent], there was an old Regional Commisioner precedent decision called Matter of Alonzo. [Note: Alonzo involved a PRIOR version of the 212(i) waiver]. A 212(i) waiver had been denied because of the fraud. The R.C. held that because it was the fraud it self that foregivenss was being sought for, that "generally" the fraud should not be a negative factor. In other words, if the alien said "Forgive me becuase I have sinned", the INS could not say "You will not be forgiven becuase you have sinned."
There was nothing in Alonzo that suggested that INS was precluded from saying that "Your sin is so great that it cannot be forgiven." But the INS later came to interpret Alonzo exactly that way and later, the Courts interpreted Alonzo to say just that.
So, my friend and colleague Howard Hom ends up representing one Mr. Yang. Mr. Yang had been married to Mrs. Yang. They divorced and Mr. Yang then married "Mary Wong" who had a US passport. Mr. Yang obtained a green card based upon that marriage. When he later went to naturalize, it was discovered that Mrs. Yang and Mary Wong were the same person and that the Yangs had obtained the US passport for Mrs. Yang for $60,000.
The deportation hearing was tried before Immigration Judge Thomas YK Fong in Los Angeles. IJ Fong said that this fraud was so egregious, no waiver under what is now 237(a)(1)(H) of the Immigration Act. IJ Fong asserted that Alonzo was not applicable because in addition to the entry fraud, there was a further fraud when he made his naturalization application.
Howard appealed to the Board of Immigration Appeals citing Alonzo and all the court cases. Howard argued that the fraud on the naturalization application was a continuation of the entry fraud. BIA said no.
Howard then goes up to the 9th Circuit Court of Appeals -- and wins! Case over? Not by a long shot.
The INS moved for "certiorari" to the Supreme Court. I remember telling Howard that if the Supremes took the case, Mr. Yang was toast. "Bad facts make bad law" and $60,000 fake US passports bother people [even pre-9/11].
The Supremes took the case, and the judical and adminsitrative gloss placed on Alonzo bit the dust. 9-zip with opinion written by Scalia. It should be noted that Justice Scalia did NOT do in Alonzo, but noted that the INS could interpret it tightly.
However, in a later BIA case, Tijam, the BIA did in Alonzo. The BIA did allow for forgiveness and remanded. I hear through the grapevine that Ms. Tijam will soon be a US citizen.
Moral: the case law may be on your side, but you may hit the immigration examiner from hell, the District Counsel from hell, be tried before the Immigration Judge from hell, and then have your name in the case books.
All for getting to share companionship a few months early.
At least Howard got paid. So did Chuck Miller, Ms. Tijam's attorney.
Originally posted by Paulgani
"Patrick" wrote in message
If Congress chooses to close a legal loophole, so be it. That is their right (and
responsibility).
Paulgani
My point of view exactly. The onus is on the government to close legal loopholes.... if they perceive this particular one we are talking about to be a threat to national security ( the analogy of the plane and the WTC towers being touted around on this forum being one, for example). And I personally do not consider it immoral for someone to point the way to it as long as it exists. Either lawyer or layman....
"Patrick" wrote in message
If Congress chooses to close a legal loophole, so be it. That is their right (and
responsibility).
Paulgani
My point of view exactly. The onus is on the government to close legal loopholes.... if they perceive this particular one we are talking about to be a threat to national security ( the analogy of the plane and the WTC towers being touted around on this forum being one, for example). And I personally do not consider it immoral for someone to point the way to it as long as it exists. Either lawyer or layman....
A further thought: Paul makes reference to the BIA cases of Cavazos and Ibrahim. He is correct that this is BIA case law that is binding on the INS and the Immigration Courts. However, these cases deal with DISCRETION which is a subjective determination. And case law can be REVERSED.
On the forgiveness of fraud [note, not pre-concieved intent], there was an old Regional Commisioner precedent decision called Matter of Alonzo. [Note: Alonzo involved a PRIOR version of the 212(i) waiver]. A 212(i) waiver had been denied because of the fraud. The R.C. held that because it was the fraud it self that foregivenss was being sought for, that "generally" the fraud should not be a negative factor. In other words, if the alien said "Forgive me becuase I have sinned", the INS could not say "You will not be forgiven becuase you have sinned."
There was nothing in Alonzo that suggested that INS was precluded from saying that "Your sin is so great that it cannot be forgiven." But the INS later came to interpret Alonzo exactly that way and later, the Courts interpreted Alonzo to say just that.
So, my friend and colleague Howard Hom ends up representing one Mr. Yang. Mr. Yang had been married to Mrs. Yang. They divorced and Mr. Yang then married "Mary Wong" who had a US passport. Mr. Yang obtained a green card based upon that marriage. When he later went to naturalize, it was discovered that Mrs. Yang and Mary Wong were the same person and that the Yangs had obtained the US passport for Mrs. Yang for $60,000.
The deportation hearing was tried before Immigration Judge Thomas YK Fong in Los Angeles. IJ Fong said that this fraud was so egregious, no waiver under what is now 237(a)(1)(H) of the Immigration Act. IJ Fong asserted that Alonzo was not applicable because in addition to the entry fraud, there was a further fraud when he made his naturalization application.
Howard appealed to the Board of Immigration Appeals citing Alonzo and all the court cases. Howard argued that the fraud on the naturalization application was a continuation of the entry fraud. BIA said no.
Howard then goes up to the 9th Circuit Court of Appeals -- and wins! Case over? Not by a long shot.
The INS moved for "certiorari" to the Supreme Court. I remember telling Howard that if the Supremes took the case, Mr. Yang was toast. "Bad facts make bad law" and $60,000 fake US passports bother people [even pre-9/11].
The Supremes took the case, and the judical and adminsitrative gloss placed on Alonzo bit the dust. 9-zip with opinion written by Scalia. It should be noted that Justice Scalia did NOT do in Alonzo, but noted that the INS could interpret it tightly.
However, in a later BIA case, Tijam, the BIA did in Alonzo. The BIA did allow for forgiveness and remanded. I hear through the grapevine that Ms. Tijam will soon be a US citizen.
Moral: the case law may be on your side, but you may hit the immigration examiner from hell, the District Counsel from hell, be tried before the Immigration Judge from hell, and then have your name in the case books.
All for getting to share companionship a few months early.
At least Howard got paid. So did Chuck Miller, Ms. Tijam's attorney.
Jan 28th 2003, 4:34 am
#20
Banned
Joined: Nov 2001
Posts: 1,933
Re: Some points about tourist visa AOS
Originally posted by Folinskyinla
Moral: the case law may be on your side, but you may hit the immigration examiner from hell, the District Counsel from hell, be tried before the Immigration Judge from hell, and then have your name in the case books.
Moral: the case law may be on your side, but you may hit the immigration examiner from hell, the District Counsel from hell, be tried before the Immigration Judge from hell, and then have your name in the case books.
Talk of ethics and morals, in this connection with this issue, is something I do not appreciate. Because I am neither unethical nor immoral. Your analogy with the taxes comes to mind. The difference between "evasion" and avoidance.....
Jan 28th 2003, 6:59 am
#21
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: Some points about tourist visa AOS
Originally posted by Ranjini
That explains a lot Mr. F. and I agree. I appreciate facts put forward in legal terms..... This appeals to my powers of reasoning although some of it may have gone over my head.... lol. The details of the case in question....
Talk of ethics and morals, in this connection with this issue, is something I do not appreciate. Because I am neither unethical nor immoral. Your analogy with the taxes comes to mind. The difference between "evasion" and avoidance.....
That explains a lot Mr. F. and I agree. I appreciate facts put forward in legal terms..... This appeals to my powers of reasoning although some of it may have gone over my head.... lol. The details of the case in question....
Talk of ethics and morals, in this connection with this issue, is something I do not appreciate. Because I am neither unethical nor immoral. Your analogy with the taxes comes to mind. The difference between "evasion" and avoidance.....
My brother is also an attorney, albeit not in immigration law. [Jeez, he's been doing it for 30 years now!]. He has told me of times when he has explained to clients that the law is on their side and then gets a question:
"How can I lose?"
Answer: The judge rules against you.
Jan 28th 2003, 7:00 am
#22
Guest
Posts: n/a
Re: Some points about tourist visa AOS
"Patrick" wrote in message
news:[email protected]...
> The answer is..... there is no definate answer - it is such a grey area.
A grey area is where the law is unclear, and one must then go to the courts
in order to obtain a judgement as to what exactly the law says or means.
Tourist visa AOS is NOT a grey area. It HAS been decided by the courts (or
technically, an administrative appeals body).
The only grey matter is in your head, though I will admit sometimes I have
doubts about that.
Paulgani
news:[email protected]...
> The answer is..... there is no definate answer - it is such a grey area.
A grey area is where the law is unclear, and one must then go to the courts
in order to obtain a judgement as to what exactly the law says or means.
Tourist visa AOS is NOT a grey area. It HAS been decided by the courts (or
technically, an administrative appeals body).
The only grey matter is in your head, though I will admit sometimes I have
doubts about that.
Paulgani
Jan 28th 2003, 7:06 am
#23
Guest
Posts: n/a
Re: Some points about tourist visa AOS
"Folinskyinla" wrote in message
news:[email protected]...
> A further thought: Paul makes reference to the BIA cases of Cavazos
> and Ibrahim. He is correct that this is BIA case law that is binding
> on the INS and the Immigration Courts. However, these cases deal
> with DISCRETION which is a subjective determination. And case law
> can be REVERSED.
Yes, but isn't that unlikely to happen, unless, of course, Congress changes
the law in some way, thus opening the door to a new BIA (or higher court)
interpretation of Congress's intentions?
> On the forgiveness of fraud [note, not pre-concieved intent], there was
> an old Regional Commisioner precedent decision called Matter of Alonzo.
Very entertaining story, thanks!
Paulgani
news:[email protected]...
> A further thought: Paul makes reference to the BIA cases of Cavazos
> and Ibrahim. He is correct that this is BIA case law that is binding
> on the INS and the Immigration Courts. However, these cases deal
> with DISCRETION which is a subjective determination. And case law
> can be REVERSED.
Yes, but isn't that unlikely to happen, unless, of course, Congress changes
the law in some way, thus opening the door to a new BIA (or higher court)
interpretation of Congress's intentions?
> On the forgiveness of fraud [note, not pre-concieved intent], there was
> an old Regional Commisioner precedent decision called Matter of Alonzo.
Very entertaining story, thanks!
Paulgani
Jan 28th 2003, 8:56 am
#24
Banned
Joined: Sep 2002
Location: United States
Posts: 3,825
Re: Some points about tourist visa AOS
Originally posted by Folinskyinla
A further thought: Paul makes reference to the BIA cases of Cavazos and Ibrahim. He is correct that this is BIA case law that is binding on the INS and the Immigration Courts. However, these cases deal with DISCRETION which is a subjective determination. And case law can be REVERSED.
A further thought: Paul makes reference to the BIA cases of Cavazos and Ibrahim. He is correct that this is BIA case law that is binding on the INS and the Immigration Courts. However, these cases deal with DISCRETION which is a subjective determination. And case law can be REVERSED.
I have read some of the postings in the various threads over the past couple of days. I wanted to post some replies yesterday, but I've just been too darn busy (plus, I'm pretty miserable right now... battling a cold and I feel terrible). Anyway, today's work load does not look any easier (have two AOS form sets to prepare and get on their way to clients) but when I get a chance I'll try to post some replies in this very interesting discussion.
Your posting above triggers this reply from me as this is something I was thinking about last night when driving home from a meeting I attended. I don't know if you saw it in various AILA liaison reports, but it was mentioned in a VSC report a few months ago that the INS is taking a zero tolerance attitude/policy, and that for areas where they have discretion, an INS officer will no longer exercise that discretion in the alien's favor. Of course, what they "say" and what they "do" are often two different things :-).
Also, haven't we seen some, who are married to U.S. Citizens, and who have I-485's on file, detained and given notices to appear in front of IJ's for minor immigration infractions (these are individuals who showed up for the INS's registration).
Well, I'd better get back to work (and where is that box of Kleenex).
M.U.
Jan 28th 2003, 1:38 pm
#25
Banned
Joined: Nov 2001
Posts: 1,933
Re: Some points about tourist visa AOS
Originally posted by Patrick
Hi Caroline,
sorry I wasn't clear my posting was all about loopholes and not visas. I wasn't making a case for the terrorist using INS loopholes, as I beleive they did not but they did use other loopholes in other systems (banking just to name one of many) to plan the attacks. Most of these loopholes have been closed or tightened up.
Patrick
Hi Caroline,
sorry I wasn't clear my posting was all about loopholes and not visas. I wasn't making a case for the terrorist using INS loopholes, as I beleive they did not but they did use other loopholes in other systems (banking just to name one of many) to plan the attacks. Most of these loopholes have been closed or tightened up.
Patrick
