VWP Widow -- Freeman v Gonzales

Old Apr 24th 2006, 1:28 pm
  #31  
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Default Re: VWP Widow -- Freeman v Gonzales

Originally Posted by Mh

Ok.. So.. after 22 pages (probably short as these things go!), one of the
findings was that: even though users of the VWP summarily agree to dismiss
all rights of appeal in case of deportation proceedings, those attempting to
AOS by reason of a USC spouse should have the full protection of that
process, regardless of whether or not they had waived those rights earlier.
Is that correct? If that's totally wrong, then just skip to the next
message..

Ok, so.. maybe it's because I got scared (after the fact, because I didn't
know about it before), but it totally brings to mind the "no appeal" clause
of Advance Parole.

The first part says: ok, yeah, you said you gave up all rights to appeal
with VWP, but, really, you're a pretty special person - you're married to a
USC and are AOSing - we'll protect you and let you appeal.

Does this in any way affect the "no appeal" part of AP? I know it's not
EXACTLY the same thing, but.. In a way, it's similar: if the ruling goes
against you, no appeal. And, in both cases (well, at least for the purposes
of this forum), the person is married to a USC and is AOSing..

Comments?

MH
Hi:

Actually, it is a pretty long one albeint not an EXTREMELY long one. Most of the "memorandum dicsions" are two pages.

Please note that the ink is hardly dry on this one and it will need some time for the true meaning to percolate through the bar and public -- that is not an uncommon thing.

Part of the confusion is that the habeas was in regards to the ADJUSTMENT. Prior to 1996, the Immigration & Nationality Act had "Chapter 4" governing "entry and exclusion" and "Chapter 5" governing "Deportation; Adjustment of Status." Analytically, adjustment was considered a for of relief from deportation. So, a review of a "deportation" order involved also the avenues of relief therefrom. The decision does not cover whether she was "removable", it covers whether she was adjustable or not.
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Old Apr 25th 2006, 9:10 am
  #32  
Mh
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Default Re: VWP Widow -- Freeman v Gonzales

In article <[email protected]> ,
Folinskyinla <member4043@british_expats.com> wrote:

[cut]

    >> Ok, so.. maybe it's because I got scared (after the fact, because I
    >> didn't
    >> know about it before), but it totally brings to mind the "no appeal"
    >> clause
    >> of Advance Parole.
    >> The first part says: ok, yeah, you said you gave up all rights to
    >> appeal
    >> with VWP, but, really, you're a pretty special person - you're married
    >> to a
    >> USC and are AOSing - we'll protect you and let you appeal.
    >> Does this in any way affect the "no appeal" part of AP? I know it's
    >> not
    >> EXACTLY the same thing, but.. In a way, it's similar: if the ruling
    >> goes
    >> against you, no appeal. And, in both cases (well, at least for the
    >> purposes
    >> of this forum), the person is married to a USC and is AOSing..
    >> Comments?
    >> MH
    >Hi:
    >Actually, it is a pretty long one albeint not an EXTREMELY long one.
    >Most of the "memorandum dicsions" are two pages.
    >Please note that the ink is hardly dry on this one and it will need some
    >time for the true meaning to percolate through the bar and public --
    >that is not an uncommon thing.
    >Part of the confusion is that the habeas was in regards to the
    >ADJUSTMENT. Prior to 1996, the Immigration & Nationality Act had
    >"Chapter 4" governing "entry and exclusion" and "Chapter 5" governing
    >"Deportation; Adjustment of Status." Analytically, adjustment was
    >considered a for of relief from deportation. So, a review of a
    >"deportation" order involved also the avenues of relief therefrom. The
    >decision does not cover whether she was "removable", it covers whether
    >she was adjustable or not.

I think I get that. But, I thought the point was that INS/USCIS ruled her
UNadjustable, and under VWP, claimed she waived right to appeal.

Judge said: no, since she's trying to AOS, she DOES have the right of
appeal, and on appeal, I believe she IS adjustable due to marriage. So, to
me, this really involves two points: was she adjustable due to marriage, and
if so, is she able to appeal (since she was initially denied, if she has no
right to appeal, this is all moot)?

So, what if a similar thing happens to someone who has used AP? USCIS rules
they are UNADJUSTABLE - AP users normally have no appeal. Would this
"opinion" hold that the person should be entitled to an appeal to see if
they ARE adjustable, just like via the VWP?

MH
 
Old Apr 25th 2006, 5:47 pm
  #33  
J Moreno
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Default Re: VWP Widow -- Freeman v Gonzales

In article <[email protected]>, MH
<[email protected]> wrote:

-snip-
    > I think I get that. But, I thought the point was that INS/USCIS ruled her
    > UNadjustable, and under VWP, claimed she waived right to appeal.
    >
    > Judge said: no, since she's trying to AOS, she DOES have the right of
    > appeal, and on appeal, I believe she IS adjustable due to marriage. So, to
    > me, this really involves two points: was she adjustable due to marriage, and
    > if so, is she able to appeal (since she was initially denied, if she has no
    > right to appeal, this is all moot)?

IMO the opinion said: Yeah, she was adjustable, and since she wasn't
here on the VWP, she has a right to appeal.

    > So, what if a similar thing happens to someone who has used AP? USCIS rules
    > they are UNADJUSTABLE - AP users normally have no appeal. Would this
    > "opinion" hold that the person should be entitled to an appeal to see if
    > they ARE adjustable, just like via the VWP?

From my reading of the case, I'd say no.

IMO it says: VWP before filing AOS == AP after filing for AOS.

--
J. Moreno
 
Old Apr 26th 2006, 6:02 am
  #34  
Mh
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Default Re: VWP Widow -- Freeman v Gonzales

In article <250420062147470811%[email protected]>,
J Moreno <[email protected]> wrote:
    >In article <[email protected]>, MH
    ><[email protected]> wrote:
    >-snip-
    >> I think I get that. But, I thought the point was that INS/USCIS ruled her
    >> UNadjustable, and under VWP, claimed she waived right to appeal.
    >>
    >> Judge said: no, since she's trying to AOS, she DOES have the right of
    >> appeal, and on appeal, I believe she IS adjustable due to marriage. So, to
    >> me, this really involves two points: was she adjustable due to marriage, and
    >> if so, is she able to appeal (since she was initially denied, if she has no
    >> right to appeal, this is all moot)?
    >IMO the opinion said: Yeah, she was adjustable, and since she wasn't
    >here on the VWP, she has a right to appeal.

Unless my memory is bad (quite possible), she WAS here on the VWP..

MH
 
Old Apr 28th 2006, 5:51 pm
  #35  
J Moreno
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Default Re: VWP Widow -- Freeman v Gonzales

In article <[email protected]>,
MH <[email protected]> wrote:

    > J Moreno <[email protected]> wrote:
-snip-
    > >IMO the opinion said: Yeah, she was adjustable, and since she wasn't
    > >here on the VWP, she has a right to appeal.
    >
    > Unless my memory is bad (quite possible), she WAS here on the VWP..

I don't think your memory is bad, I think you're not getting what I am
saying I think the court said -- she ARRIVED on the VWP, but once her
AOS petition was accepted, her status as a VWP visitor was nullified.

Let me give a different example -- the K1 visa entitles one to work
immediately upon entry into the country. If you had a job at the
airport, you could clock in seconds after passing through customs,
without filling out any additional forms.

Just about everyone that is aware of the K1 acknowledges this, but
there is some disagreement as to when this permission expires: some
hold that it expires immediately upon marriage, some that it expires at
the end of 90 days, some that it expires before the 90 days if they
file for AOS, and probably a few that it doesn't expire at all as long
as they don't leave the country (which is how the law should have been
written, even if it wasn't).

What the court has said (IMO, IANAL, ILA), is that the VWP "expires"
upon submission/acceptance of the I-485 -- if the I-485 isn't rejected
immediately, then the terms of the VWP no longer apply.

--
J. Moreno
 
Old May 1st 2006, 6:27 am
  #36  
Mh
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Default Re: VWP Widow -- Freeman v Gonzales

In article <280420062151095223%[email protected]>,
J Moreno <[email protected]> wrote:
    >In article <[email protected]>,
    > MH <[email protected]> wrote:
    >> J Moreno <[email protected]> wrote:
    >-snip-
    >> >IMO the opinion said: Yeah, she was adjustable, and since she wasn't
    >> >here on the VWP, she has a right to appeal.
    >>
    >> Unless my memory is bad (quite possible), she WAS here on the VWP..
    >I don't think your memory is bad, I think you're not getting what I am
    >saying I think the court said -- she ARRIVED on the VWP, but once her
    >AOS petition was accepted, her status as a VWP visitor was nullified.
    >Let me give a different example -- the K1 visa entitles one to work
    >immediately upon entry into the country. If you had a job at the
    >airport, you could clock in seconds after passing through customs,
    >without filling out any additional forms.
    >Just about everyone that is aware of the K1 acknowledges this, but
    >there is some disagreement as to when this permission expires: some
    >hold that it expires immediately upon marriage, some that it expires at
    >the end of 90 days, some that it expires before the 90 days if they
    >file for AOS, and probably a few that it doesn't expire at all as long
    >as they don't leave the country (which is how the law should have been
    >written, even if it wasn't).
    >What the court has said (IMO, IANAL, ILA), is that the VWP "expires"
    >upon submission/acceptance of the I-485 -- if the I-485 isn't rejected
    >immediately, then the terms of the VWP no longer apply.

Ok, I think I get it now.

You're saying: VWP expires due to AOS, but AP is AFTER AOS, meaning you're
still subject to any restrictions it places on you..

I can see your point.

MH
 
Old May 1st 2006, 6:42 am
  #37  
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Default Re: VWP Widow -- Freeman v Gonzales

Originally Posted by Folinskyinla
The 1996 legislation stripped the Courts of Appeals reviewing discretion in many cases although there was a well established "abuse of discretion" standard of review.
Can you provide a reference to the standard of review you refer to here??

Thanks!
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Old May 1st 2006, 6:49 am
  #38  
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Default Re: VWP Widow -- Freeman v Gonzales

Originally Posted by J Moreno

What the court has said (IMO, IANAL, ILA), is that the VWP "expires"
upon submission/acceptance of the I-485 -- if the I-485 isn't rejected
immediately, then the terms of the VWP no longer apply.

--
J. Moreno
That makes perfect sense, but then sense an immigration has nothing much to do with each other usually.

There seems a lot of gaps, and then the Court decides on what appears logical in law to fill the gaps.
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Old May 1st 2006, 7:00 am
  #39  
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Default Re: VWP Widow -- Freeman v Gonzales

Originally Posted by Boiler
There seems a lot of gaps, and then the Court decides on what appears logical in law to fill the gaps.


You mean a court legislating from the bench? Apostasy!
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Old May 1st 2006, 7:05 am
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Default Re: VWP Widow -- Freeman v Gonzales

Originally Posted by snowbunny

You mean a court legislating from the bench? Apostasy!
Well what do you expect when the laws are badly written by politicians.

Just be grateful there are so many lawyers around to argue the merits.
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Old May 2nd 2006, 2:40 am
  #41  
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Default Re: VWP Widow -- Freeman v Gonzales

Originally Posted by bluesails
Originally Posted by Folinskyinla
The 1996 legislation stripped the Courts of Appeals reviewing discretion in many cases although there was a well established "abuse of discretion" standard of review.

Can you provide a reference to the standard of review you refer to here??

Thanks!
Any pointers to this information?
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Old May 2nd 2006, 3:13 am
  #42  
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Default Re: VWP Widow -- Freeman v Gonzales

Originally Posted by bluesails
Can you provide a reference to the standard of review you refer to here??

Thanks!
Hi:

The 9th Circuit did a wonderful thing of publishing their internal guidebook on Immigration Law. Do note that 1) it is general 2) from the POV of what the court is likely to see and 3) it is not "law."

http://www.ca9.uscourts.gov/ca9/Documents.nsf/54dbe3fb372dcb6c88256ce50065fcb8/44620e9df9b60e9088257102005ed8c9/$FILE/immigration.pdf

Look under the chapter on "Jurisdiction" where they discuss the various standards.

BTW, EVERY published court case from a Federal Court will have a discussion of jurisdiction and standards of review. Lay persons tend not to realize that the Federal Courts are ones of LIMITED, and not general jurisdiction. The Supreme's decision yesterday in Marshall v. Marshall was a jurisdictional spat even if it did involve Anna Nichole Smith.
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