Board of Immigration Misinterpretation of 212(h) Eligibility. Hops, Skips, and Jumps of Lawful Admission II

Hops, Skips, and Jumps of Lawful Admission II

The Immigration Court conduct, is symptomatic of a larger agency malfeasance is the Board’s misinterpretation of eligibility of § 212(h) relief. The Court of Appeals has corrected the Agency’s approach to §212 (h) eligibility in at least few cases such as:

First, the Fourth Circuit overturned the Agency’s position In re Shanu 23 I&N. Dec.754 (BIA., 2005) /Aremu v. Department of Homeland Security, 450 F.3d 578 (4th Cir. 2006) in which the Appeal Court find that the BIA erroneously determined that the date on which Shanu adjusted his status to become a permanent resident qualifies as “the date of admission” within the meaning of  § 1227 (a)(2)(A)(i) Id. at 759 (holding that the date of adjustment of status does not qualify as the date of admission” under that provision.)

Next, in Yeung v. INS 76 F.3d 337, 340-41 (11th Cir 1995) rejected as “arbitrary” the Board’s ruling in Matter of Parodi 17 I&N Dec, 608, 611 (BIA 1980) finding a permanent resident alien who had not departed and reentered subsequent to the conviction for a deportable offense eligible to apply for a waiver under section 212(h) in conjunction with an application for adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (1976)) and the person cannot obtain Nunc Pro Tunc relief. (The BIA has considered § 212 (h) waiver applications in conjunction with adjustment application only. [emphasis added]. Relegating Yeung, he court held that “to a different classification of persons simply by virtue of his failure to depart and reenter, is to recognize a distinction that can only be characterized as arbitrary, and that is without`a fair and substantial relation to the object of the legislation. ” 76 F.3d at 340.001

Having found the Board’s interpretation of section 212(h) of the Act unconstitutional as applied to the respondent, the court remanded this case to the Board with instructions to reconsider its prior interpretation of section 212(h) in Matter of Sanchez, supra, Matter of Parodi, supra, in order to make them consistent with one another and with the language of the statute itself.

Finally, In Francis v. INS 530 F.2d 268 (2nd Cir. 1976) rationale for 212(c) cases to 212(h), the Court held that the former § 212(c) relief violated equal protection because it was available outside the U.S., but not to a permanent resident who had not happened to travel abroad”.   The rationale for the Francis decision was that’ to provide for section 212(c) relief to deportable aliens returning from abroad but not for aliens similarly situated who had not departed from the United States would constitute an unconstitutional classification inconsistent with due process. 532 F.2d at 272-273. The Board specifically declined to rule on the question of whether or not a non-citizen who has not left the United States can apply for section 212(h) relief in deportation proceedings. Matter of Yeung, 22 I&N Dec 610, 612 (BIA 1996). More recently 5th and 7th Circuit upheld the distinction between LPR’s who departed the County and are charged with inadmissibility and those who had not departed the Country and, thus are charged with deportability.

In Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir 2007)The Seventh Circuit found that there were “any number of rational grounds on which Congress could choose to draw a line between those who committed crimes before applying to enter the country (making them inadmissible) and those who have committed crimes since arriving (making them deportable).” See: Klementanovsky. v. Gonzales, supra, at 792. The Circuit position reasons why Congress may have contemplated a statutory distinction between those two groups and criticized the Yeung decision (notably, that the Yeung Court focused exclusively on the BIA created distinction and not any Congressional -created distinction. 501 F.3d at 793.

The Board earlier took the position that a lawful permanent resident present in the United States could apply for a waiver under section 212(h) during deportation proceedings so long as he “depart[ed], return[ed], and then appl[ied] for a waiver.” Klementanovsky, 501 F.3d at 793. See, e.g., Matter of Sanchez, 17 I. & N. Dec. 218, 222-24 (BIA 1980).

As Agency’s errors, reflected in its decisions /(212)(h)] cases, constitutes specific “errors” of law’ withing the meaning of INA  § 240 (c)(6)(B), which the Immigration Courts must consider. The court held that relegating Yeung “to a different classification of persons simply by virtue of his failure to depart and reenter, is to recognize a distinction that can only be characterized as arbitrary, and that is without `a fair and substantial relation to the object of the legislation. In view of the latest Court decisions in Matter of J-H-J-, 26 I&N Dec.563 (BIA 2015) and Medina-Rosales v. Holder, 778 F.3d 1140(2015), and the clear and unambiguous language of § 1182(h) “only persons who obtained Legal Permanent Resident status before or when the entered the United States are barred from seeking a waiver under § 1182(h). Because most respondent’s obtained LPR’s status after they entered the United States, consequently they are eligible for discretionary consideration for waiver of  inadmissibility under § 1182(h).

Credits: Department of Homeland Security

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Democrats say they have deal with Trump on DACA Recipients

Credit to ERICA WERNER and JILL COLVIN – Associated Press – Wednesday, September 13, 2017

WASHINGTON — The top House and Senate Democrats said Wednesday they had reached agreement with President Donald Trump to protect thousands of younger immigrants from deportation and fund some border security enhancements — not including Trump’s long-sought border wall.

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The deal announced by Senate Democratic Leader Chuck Schumer and House Democratic Leader Nancy Pelosi following a White House dinner would enshrine protections for the nearly 800,000 immigrants brought illegally to this country as kids who had benefited from former President Barack Obama’s Deferred Action for Childhood Arrivals, or DACA, program. The program provided temporary work permits and protection from deportation. Read More @ https://a.msn.com/r/2/AArTMkU?m=en-us

Columbus Day should be a Remembrance of Exploitation and Genocide 

Education is not just a mere public instruction but a process to which a nation can build its self-consciousness and through that consciousness a nation can communicate its cultural heritage from one generation to the other. Consequently, the Columbus Day holiday has been celebrated in the United States since 1937 and intensified in 1971 as part of that cultural heritage. To glorify the history of Columbus, most unfortunately, in a year two thousand two President Bush issued a presidential proclamation for a man who never set foot in North America, directing the flag of the United States be displayed on all public buildings on the appointed day in honor of Columbus. (Proclamation 6484—Columbus Day,October 1, 1992) This proclamation speaks of a bold expedition and Columbus pioneering achievements henceforward fails to recognize Columbus human annihilation, genocide and slaves that were sent to Spain to be sold, per Columbus; in the name of Holy Trinity. Columbus reported that, “the Indians are so naive and so free with their possessions that no one who has not witnessed them would not believe it. When you ask for something they have, they never say no”. It is fair to say that’ despite hospitality shown by the Arawak’s, Columbus wicked intentions took over. He seized the Arawak by force aboard the ship as prisoners insisting that they guide him to the source of the gold. In his journal to King Ferdinand and Queen Isabella, Columbus writes “They would make fine servants…with fifty men we should subjugate them all and make them do whatever we want” (Zinn). Columbus further wrote that “Through slavery they should be made to abandon their bad habits and reward them with life time of work. At this juncture Columbus used slavery to deal with “barbarians” who refused to accept Christianity.” (Conqueror).

This period of Columbus is mark by gold as it was becoming the new mark of wealth and Spain like any other nations sought this commodity which they considered to be more useful than land as it could buy anything. Columbus from negotiated 10% profit contract with King Ferdinand and Queen Isabella promise to bring back gold and species. As a reward Columbus was promised governorship over new-found lands, and the fame that would go with a new title: Admiral of the Ocean Sea., Columbus’ voyage from inception was motivated by creed. His creed can be demonstrated by his very first encounter with the Arawak’s as he wrote in his journal “As soon as I arrived in the Indies, on the first Island which I found, I took some of the natives by force in order that they might learn and might give me information of whatever there is in these parts” (Bounce). All it took for Columbus was to see jewelry wore by the Arawak’ and nose plugs made from gold. Columbus expected to have spices and plenty of gold. The methods to explore called for domination and justification of such control. To warrant sufficient justification dominion of the Indies and land en route, he used Christianity and Civility as he was induced by a concept of “barbarian,” that Christianity and the rule of civilized government was a gift worth giving to ill-clothed, ill-housed and ungoverned barbarians of the world. Part of that civility was slavery orchestrated by an impression of barbarians as people with manners and customs of which “civil persons” like Columbus disapprove.

Missing in our American Columbus story line and a year two thousand two Bush proclamations, is a story of Columbus genocide perpetrated by degree that’ every 14 years old Arawak’s were to finish every three month a hawk bell full of gold dust or in an alternative a 25 pound of woven of span cotton. Furthermore, missing is brutality commanded by Columbus, horrific branding of copper coins around Arawak’s necks as a symbol that they meet quotas. Indian found without tokens had their hands cut off and bleed to death. When the Spaniards find Arawak’s who attempted to flee, they hanged them or burned them to death. History bear witness that; Arawak’s population of 250,000 in 1492 was reduced to in or around 200 in 1514. The Arawak’s died been hunted by dogs, disease, cruelty, burned, overworked, taking pains to avoid having children and forced into committing mass suicides with cassava poison. This genocide occurred all in the name of cherished assumption of Columbus version of Christianity and civility.

As American history X authors attempt to bury the cruel policies initiated by Columbus and pursued by his successors., they reference this Genocide as skirmish with the natives, moreover horrific acts such as Spaniards been carried by Indians on hammocks and run in relays were position as nuance view and that Indians died due to diseases . (Cohen) To add an insult, this version of history according to Michael Kammen article “Mystic Chords of Memory”, Columbus voyages to the “New World” fronted a new phase of Human Civilization, and a symbol of first order in America. Seeing Columbus as a hero that overcome opposition and adversity to change history, this contrary tale to human annihilation, genocide and slavery will become a romance idealized image of discoverer, bold man to which America will mold him to their purpose as embodiment spirit, a driving force to explore and discover just like in a case of Captain John Mason during raid in Pequots Village in 1636 as he believed that using massacre can destroy Indians will to fight with less risk.

Here we are five hundred and twenty five years later celebrating a cruel atrocious liar who never found China or Asia, Columbus the hero, a man who not only brought disease to the Native Americana’s but drove them to self-destruct as they destroy their own crops, forced to killed their children and committed suicides to avoid horrific act of Genocide perpetrated by Columbus against Native Americana’s. What unite us to celebrate a man who never even landed in the United States but launched one of greatest waves of genocide known to man? Is it Christian superiority over naked barbarians? Or perhaps punitive expedition that virtually exterminated the Arawak’s and paved the way for Atlantic slave trade sum-up what unite us to celebrate Columbus? American History began with Columbus models of human servitude and to understand a larger picture of American history, emphasis should be placed that Columbus along killed four million people in four years and recently in 1980’s under President Reagan and Bush Sir, US government gave direct aid to genocidal campaigns that killed tens of thousands Mayan Indian people in Guatemala (Soldiers of Fortune Mercenary Wars Guatemala). As here the pattern holds and as logic escapes me, a question is; is this a type of heritage mark by omissions apt to be pass down as a celebration? The answer is no and as here, the rest of the country should follow Berkeley, Santa Cruz, Seattle and Minneapolis and Los Angeles as a precedents to replace Columbus Day with Indigenous Peoples Day. All in all, to amend this horrific past San Diego should follow a suite and extent its olive branch to our local natives such as Luiseno, Cahuilla, Cupeno, Kumeyaay, and Northern Diegueño. Columbus Voyages and Holiday Day should be nothing of celebration but remembrance of human servitude and Genocide against indigenous people, if anything less, may our God to whom we trust be indebted with a special apology to the Nazis, Ancient people of Babylon, Egypt, Sodom and Gomorrah.

Credit to San Diego City College History Dept.

Works Cited

Bounce, EG. The Northern, Columbus and Cabot. New York: Charles Scribner’s Sons, 1906.

Cohen, Paul A. “The Mythology Past.” History in Three Keys: The Boxers as Event, Experience, and Myth. Columbia University Press, 1997. 215.

“Conqueror.” Morgan, Edmund S. American Heroes: Profiles of Men and Women Who Shaped Early America. W. W. Norton & Company, , 2010. 304.

Soldiers of Fortune Mercenary Wars Guatemala. http://www.mercenary-wars-.net/Guatemala. n.d. 07 07 2017.

Zinn, Howard. A People’s History of The United States. Harper & Row, 2003.

Hops, Skips and Jumps of Lawful Admission

UNTIE THE KNOT IN 212 H WAIVER

To help us untie this knot are precedent decisions in Medina- Rosales, Stanovsek, and Negrete-Ramirez.  The Immigration Court has often times over respondents who are statutorily eligible for relief under 212 h waiver  (8 U.S.C. § 1182(h) prior to the entry of the administrative final order of deportation.justice for olango

The 212 h waiver is an intended safeguard to ensure a proper and lawful disposition of Immigration proceedings  to respondent’s core claims. INA § 240 (c)(7)(B). Most respondent who are served with Notice to Appear in light of the above mentioned precedents are not barred from applying for this waiver, only non-citizens who entered into United States as Legal Permanent Residents (LPR) are barred from eligibility to apply for waiver. Source; Immigration and Nationality Act § 212(h),8 U.S.C.§ 1182(h). 

Section 1182(h) statutory language stated in relevant part:

The Attorney General may, in his discretion, waive the application of [provisions relating to exclusion] . . . .(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States, or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien’s exclusion would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien”; 8 U.S.C. § 1182(h).

The bar to seeking a § 212(h) waiver does not apply to people who have entered the country through inspection and adjusted status thereafter. This include refugees who attained lawful permanent residents status after two years of being in the country rather than those who were admitted as LPR. On issue of first impression, respondent’s who post-entry adjustment of status  as “alien” refugees to LPR’s after they entered United States does not constitute “admission” in context of provision governing waiver of grounds of inadmissibility.

Adjustment is this content is a change of an “alien’s” refugee status to that of an alien lawfully admitted for permanent residence, (Husic, 776 F.3d at 64) (citing 8.U.S.C. § 1255(a) but adjustment of status is not an admission. Section 101(a)(20) of the Act, 8 U.S.C. § 1101(a)(20), defines the term, lawfully admitted for permanent residence as [t]he status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed, regardless of whether they obtained that status prior to or by adjusting their status while they physically entered the United States. See; Negrete-Ramirez v. Holder, 741 F.3d 1047, 1050-54 (9th Cir.2014)  (recognizing definition refers to immigration status regardless of how or when it was obtained).

“ The phrase “lawful admission for permanent residence”  is a totally different phrase from the term of art of 8 U.S.C. 1101 (a) (20), “lawfully admitted for permanent residence.” See; In re Jose Luise Mercado-Zazueta v. Holder, 580 F.3d 1102, 1104(9th Cir. 2009). 

Needless to say, plain statutory language is the most instructive and reliable indicator of Congressional § 212(h)’s plain language as stated above demonstrates unambiguously Congress’ intent not to bar respondents convicted of felonies who adjusted their status post entry to lawful resident status from seeking a waiver of inadmissibility.” as here the immigration court must give effect to Congress intent. Moreover in light of this cases, Court must presume that a legislature says in a statute what it means and means in a statute what is says there. Absent indication to the contrary, in analyzing the text of a statute, courts apply the “ordinary, contemporary, common meaning” of the terms contained in it. See;,Pioneer Inv. Servs. Co. v. Brunswick Assocs., 123 L. Ed. 2D 74 (1993).

Admission vs. Admitted

The plain  language of 212 (h) REVEALS THAT “admitted”, as employed in § 212(h), includes an “Alien” lawful entry into this Country with permanent resident status, stated differently for the §212 (h) bar to apply, when the “Alien” is granted permissions, after inspection, to enter the United States, he must then be admitted as an LPR. Accordingly, there’s no basis for the statutory language’s being ambiguous. Again this based in part on Congress’ having defined “admitted.”  Under the Chevron-framework, we first determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter for the court, therefore agency must give effect to the unambiguously expressed intent of Congress”. quoting Chevron, 467 U.S at 842-43.

For determining ambiguity vel non, if this statutory text stood alone, the court would define “admitted” by its ordinary, contemporary, and common meaning, as discussed supra. Congress has relieved us from this task, however, by providing the following definition: “The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”. 8 U.S.C. §1101(a)(13)(A) (emphasis added). Under statutory definition, “admission” is the lawful entry of an alien after inspection, something quite different, obviously, from post-entry adjustment of status, as done by most respondents in immigration proceedings.

Executive Office for Immigration Review (EOIR)’s malfeasance, including the Immigration Court, the Board’s and Attorney General’s incorrect positions and misguided interpretations regarding § 212(h) eligibility prevented many respondents from applying for this relief. The Immigration Court begin with failure to inform respondents that they could apply for § 212(h) relief. Under title 8 Code of Federal Regulations, § 1240.11 (a)(2) Immigration Judges are obliged to inform the respondents of possible relief from removal.

Immigration Court conduct on this issue is symptomatic of a larger Board of Immigration’s misinterpretation of eligibility of § 212(h) relief which will be discus more in detail in the next article.

As here the fact that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning. Based on the clear and unambiguous language of § 1182(h) the court should conclude that’ only persons who obtained LPR status before or when the entered the United States are barred from seeking a waiver under § 1182(h). Because most respondents in immigration proceedings obtained LPR status after they entered the United States, they are eligible for discretionary consideration for waiver of  inadmissibility under § 1182(h), 212 h waiver.

 

Having Served in U.S. Military Honorably and His Case on Direct Appeal, Oliveira Domingos fights for Deportation Order

Many of ICE concentration camps are run by for-profit corporations, so clearly some people are making lots and lots of money off the booming business of keeping human beings in cages See; [Ray Downs]. Among these human beings, it is a former military service men Domingos Jose de Oliveira who served this country honorably and most unfortunate, his being detain at one of the Core civic concentration camps in Otay Mesa despite the prevailing circumstances that his case that form the basic for his detention is on direct appeal.                                                                                                                               The Board of Immigration Appeals and many Federal Courts have long required that for a criminal conviction to trigger the criminal provisions of the immigration laws, all direct criminal appeals of right must be exhausted or waived. Only then can a criminal conviction render an immigrant deportable subject to civil immigration detention, or barred from applying for relief from deportation or for lawful status. (Matter of Ulices MONTIEL) Consequently, the Immigration Court seeks to undermine this finality rule as Oliveira still face a prolong civil detention hence his conviction is under direct appeal.

Oliveira is a 53 years-old year native of Portugal who was admitted into the United States as an immigrant in New York City on or about or about December 18, 1972. He became a lawful permanent resident (LPR) on March 16, 1973. Oliveira’s siblings have lawful statues in the United States and his children are United States citizens. He also owned a property in Spring Valley which was paid off in 1999, however due to prolong “civil detention”, he was forced to sell his property. Oliveira served in the United States Army in the 1980’s. While in service in 1983, he filed an application to obtain citizenship, however, he was ordered to Germany three days later. Upon his return, he contacted the Immigration and Naturalization Service (INS) about the status of his application and was informed that his application had been lost. Due to lack of funds, Oliveira was unable to reapply for citizenship at that time.

On July 1, 2011 following a jury trial, Oliveira was convicted of violating California Penal Code section 653f, subdivision (b), and section 422, with an additional enhancement under section 422.75, subdivision(a). He was sentenced to seven years and four months in state prison. After the guilty verdict and again after sentencing on August 01, 2011 Oliveira reminded his Counsel before leaving the court room to file the appeal for his conviction, at this moment his Counsel had promised to see Oliveira in a holding cell for further discussion but failed to show-up. His Trial Counsel later communicated to Oliveira’s daughter that he was in the process of filling the appeal, but it could take as long as long as two years to be resolved. Oliveira relied upon his counsel’s representations, although his repeated attempts to contact trial counsel were unsuccessful. On September 22, 2014 Oliveira on his earliest possible released date was released from state prison and taken into Immigration and Customs Enforcement custody and later was transferred to CCA Otay Mesa Detention Facility in San Diego (Core Civics). At some point in January of 2015, Oliveira learned that his appeal had never been filed. His Trial Counsel had filed a notice of appeal in state court after statutory period of 60 days (CalRule31); however, it was rejected as untimely.
Since is a duty of the trial Court to afford every defendant in criminal case a fair and impartial trial is duty of the Court to correct matters by granting a new Trial transcends statutory limitations (People v. Oliver) (1975) Cal. App 3d 747, 751 (120 Cal. Rptr. 368] in Strickland v. Washington. 466 U. S. 668 (1994) the Supreme Court held that criminal defendants have a Sixth Amendment right to “reasonably effective “legal assistance, and announced a now-familiar test; A defendant claiming ineffective assistance of counsel must show (1) that counsel’s representation “fell below an objective standard of reasonableness,” and (2) that counsel’s deficient performance prejudiced. A Notice of Appeal is generally a one -sentence document stating that the defendant wishes to Appeal from the Judgment moreover filing such notice is a purely ministerial task that imposes no great burden on Counsel. As here, at no point did Oliveira’s Trial Counsel attempt to remedy his mistake or even inform him about the error, rendering these critical stages constitutionally inadequate, in violation of state and federal rights to the effective assistance of counsel, due process, and a fair trial. This error was fatal to Oliveira’s right to appeal. ‘Thus, the trial counsel failed to fulfill the constitutionally-imposed duty to consult with Oliveira about appeal.

Under California Rule of Court, the reviewing Court for good cause may relieve a party from a default occasioned by any failure to comply. Oliveira used due diligence to pursue his right for appeal to which the courts should evoke excusable neglect doctrine. Delay in filing this petition should be deemed timely filed under the theory of “constructive filing. The Court in Benoit; the doctrine of constructive filing based upon a promise or representation made by each defendant’s attorney that he would timely file a notice of appeal on his client’s behalf. (Benoit, supra, 10 Cal.3d at pp. 86-87, 109 Cal. Rptr. 785, 514 P.2d 97.) We relied in part upon the circumstance that the assurances had been made by the defendants’ trial counsel, noting that “the prisoner would be more justified in relying on his counsel who had represented him and might have some continuous concern for him …” (Id. at p. 86, 109 Cal. Rptr. 785, 514 P.2d 97.) In contrast to this present case, Oliveira did seek and receive assurances from his original trial counsel that he would prepare or file his appeal. On December 23, 2017, Oliveira through his Immigration Counsel; Attorney Jamahl C. Kersey filed for constructive notice of appeal which was granted by San Diego Superior Court on January 12, 2017. Meaning that Oliveira case it is on direct appeal not to be confuse with collateral attack.

OLIVEIRA STILL UNLAWFULLY DETAIN.

The Court in a precedent decision, decided that when an immigration judge is deciding whether to deport someone based on a criminal conviction, deportation cannot occur unless and until the direct appeal of that conviction has been resolved. (Orabi vs. Attorney General). During a bail hearing held on April 10, 2017 Immigration Court did not base its decision on its finding that Oliveira have a pending direct appeal, but rather on its determination that a conviction is final for immigration purposes. See: transcripts;

20170821_170201.jpg

 [U]nder section 101(a) (48) (A) of the Immigration and Nationality Act, 8 U.S.C.§ 1101(a) (48) (A), the term “conviction” means “a formal judgment of guilt of the alien entered by a court, however in this particular case, a conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived. In emphasis, prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), it was “well established that a conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived. (In-re-Ozkok) see also Planes, 686 F.3d at 1037 (Reinhardt, J., dissenting from the denial of rehearing en banc) (citing “the longstanding rule that a conviction is not final for immigration purposes until the immigrant has exhausted or waived his direct appeal as of right”).  The IIRIRA defined the term “conviction,” for purposes of immigration removal as: a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where . . . (I) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (II) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. 8 U.S.C. § 1101(a) (48) (A). Thus, the IIRIRA‟s amendment, which focuses solely on the term “conviction,” sought to broaden the scope of that term, but in so doing, it did not refer to, amend, change, or even mention doing away with the need for appeal to acquire finality of judgment. Understandably, 1196 Section 322 as recalled in the Conference Committee Report of the House of Representatives, addressed only adjudications that were “deferred” (a product of numerous state procedures) and instances in which the subject alien has violated a term or condition of probation. (104 Congress). The 1996  IIRIRA amendment was designed to correct a myriad of provisions for ameliorating the effects of a conviction” by giving effect to the “original finding or confession of guilt . . . to establish a conviction for purposes of the immigration laws. Moreover, the Court in Orabi did not agree that the IIRIRA eliminated a direct appeal from the finality rule in its definition of conviction.

While Congress “adopted almost verbatim” this definition of “conviction” in the IIRIRA, the statute explicitly eliminated the finality requirement for deferred adjudications. See 8 U.S.C. § 1101(a) (48) (A). That is, “for immigration purposes, a deferred adjudication [as distinct from a pending direct appeal] would be considered a conviction if three elements were met, the third of which consisted of a finality requirement.” Planes, 686 F.3d at 1040. Nothing in IIRIRA or its legislative history suggests that Congress intended the phrase “formal judgment of guilt” to be interpreted any differently from how it always had been interpreted prior to the enactment of the statute. . .. The elimination of the finality provision for deferred adjudications, along with the failure to make any change in the language regarding direct appeals as of right . . . demonstrates Congress‟ intent to retain the finality rule for the latter category of appeals. 686 F.3d at 1039-40 (Reinhardt, J., dissenting from the denial of rehearing en banc); (Reinhardt, J., dissenting from the denial of rehearing en banc) (emphasis added).

Given that Oliveira’s s appeal was one of right and that no deferred adjudication is at issue here, IIRIRA‟s elimination of the finality requirement in the case of deferred adjudications does not disturb the longstanding finality rule for direct appeals recognized in Ozkok. INS section 1228(c)(3)(A)(iii) (providing that before a district court may enter a judicial order of removal at the time of sentencing against an alien who is deportable, there must be a valid waiver of the right to appeal, the expiration of the period to file a petition for review, or the final dismissal of an appeal from such a conviction); The Court in precedent decision, Orabi v. Attorney General of the United States 738 F.3d 535 (2014) decided that when an immigration judge is deciding whether to deport someone based on a criminal conviction, deportation cannot occur unless and until the direct appeal of that conviction has been resolved. It is within our fundamental right to assert that due process guarantee of fundamental fairness derives from belief of uniform Federal Law and that Justice cannot be equal simply as result of Respondents Jurisdiction. Accordingly based on above contents of transcript, Immigration Judge decision should be reversed with instructions that the Government release Oliveira, particularly were public interest is implicated.

Credit: to Attorney Jamahl C. Kersey
Works Cited

No. Cal. Rules of Court, Rule 31 (a). n.d.
104 Congress. “H.R. Conf. Rep. No.828.” WL 563320 at 496-97. 1996.
In-re-Ozkok. No. 19 I&N. Dec.546,552 n.3. BIA. 1988.
Matter of Ulices MONTIEL. No. 26 I&N Dec. 555(BIA 2015). Board of Immigration Appeal. 17 04 2015.
Orabi vs. Attorney General. No. 738 F.3d 535. 3rd Circuit. January 2014.

Charlottesville – American History X 109: Racism Constructed on Supremacy, Control and White Privilege

There’s a cultural backdrop where Black Americans from the beginning of times lived under suspicion. The sentiment of this backdrop is racism that we observed from Our founding fathers, our legislation’s and judicial system. A narrative in a film American History X, directed by Tony Kaye illustrates the brutal realities of a mindset in American culture associated with a belief that one race of people is humanly superior to another race of people. It also replicates a nation that is founded on slavery and white privilege. Among these illustrations, it is our nation legislation’s that are predominantly race motivated by a culture that created laws like separate but equal, stand your ground and coupled in an industry that is obsessed and nearly erotic intensity with guns as the manifestation of manhood. African Americans were born with their backs against the wall where they can’t even dress with the same kind of freedom that their white peers do. Throughout American history requesting equal protection by African Americans and other minorities has been a journey of camels going through the hole of a needle.

https://www.washingtonpost.com/video/c/embed/7c67cb72-7fb1-11e7-b2b1-aeba62854dfa

 

Our Founding Fathers & Racism

Our founding fathers, Thomas Jefferson with his leadership of a slave-holding society and the reality of his ownership of fifty slave plus his wife’s inheritance of one hundred and thirty-five slaves could never reconcile the ideals of freedom, expressed in the Declaration of Independence, as he writes “The former race had not the moral fiber, intelligence, and industry necessary for citizenship in the society of the latter…On the other hand, if the races should not destroy one another in civil war, the black must eventually interbreed with the white, destroying the intelligence and beauty of the superior race”. (McColley).  Equally guilty flip flop hypocrite, was Abraham Lincoln: On Race “I will say, then, that I am not, nor ever have been, in favor of bringing about in any way the social and
political equality of the white and black races (applause); that I am not, nor ever have been, in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race.” 1858 Senate Campaign Speech (September) Quoted from Howard Zinn, A People’s History of the United States. New York: Harper Collins, 2003: p. 186  Credit to: San Diego City College Professor Robert Schultz.                                                                                   Jefferson and Lincoln statement reflect distinctions that they draws between whites and African Americans. In an Article by Heather Andrea Williams Compartmentalizing Slavery:  “How white Americans constructed a fictitious distinction between white and black emotions” the author writes’ It is fair to say that most white people had been so acculturated to view black people as different from them that they did not perceive the existence of slavery in America as a problem, and when exposed to slaves, they barely noticed the pain that they experienced.

  This distinction will later have physiological influence on whites to view black and other minorities people as different from them that they will not perceive the negative impact of slavery or racism in America as a problem. In contract to the American History X,  its Charllottesville Fire and Fury. Same mentality that we seen in a film scene were Derek his interview by a reporter after a murder of his father, when asked “how he fell …in his response he allude to blacks and other immigrants as parasites and attaches AIDS, welfare and immigration as problems fit to this communities. Derek goes further as he elaborates that his father was murdered putting a fire in f***g N***r neighborhood he should give a shit about and moreover a fucking drug dealer who probably collects a welfare check. Also in a different scene when Seth ask Danny; Who do you hate? his answer was “I hate everyone that isn’t white because their burden to the advancement of the white race”. This depiction of N***r neighborhood and blacks as criminal savages equates to the same racial distinction stigma held by  Jefferson and Lincoln. It is not a conceited to see this stigma of racism in our nation, consequently as Trump  fail to condemn terrorist act by James Alex Fields Jr., 20, of Ohio after his car plowed into crowds, claiming a life of 32 yrs old Heather Heyer and leaving 19 others injured. Prominent white supremacist David Duke was quoted that marching in Donald Trump’s name at the “Unite the Right” rally in Charlottesville, VA. “ represents a turning point for the people of this country,”. We are going to fulfill the promises of Donald Trump,” the former Grand Wizard of the Knights of the Ku Klux Klan said at the rally. Washington Post   

Our Legislation’s

From inception our laws were writing to support white nationalism as they focused on power and privilege, moreover these laws were protected by the constitution. Our  nation  had opportunity at different periodic time line in our history to correct the stigma of slavery and racism.  The Trial of Celia the slave girl bears witness to this core parables of legal racial stigmas that gravitated for centuries. In Celia case Missouri Slave Code” of 1804 will be made no distinction between slaves and other personal property. A court had an opportunity to protect Celia as a woman under Missouri statute of 1845, article 2, section 29 which declared it a crime “to take any woman unlawfully against her will and by force, menace or duress, compel her to be defiled” (Williamson 85). With the States battle over morality of slave ownership many understood that the court’s decision in this case held significant implications for the economic and social foundations of slavery. (McLaurin 67).

With a favorable decision for Celia that might hold a precedent, our nation had a chance to express and incorporate blacks equally into legal definitions. However, with ideal culture of supremacy to protect the privileged and maintain the status Que, the courts defined state’s argument by legal proclamations that separate rape of a slave as a trespass on the property by its owner. A culture that was displayed in Charllotteville, is a culture  that can be define by set of attitudes, values, goals, and practices rooted in  America laws. Driving by thoughts of ethnocentric, Southern states felt that the federal government had no right to interfere with their states ‘rights (slavery), (Worthington) and through Compromise Act of 1854 and 1877 a new generation brand of based politics culture- founded on racism was born in 1861 and culminated in the formation of the Southern Confederacy to which our President Trump cannot speak against.

Our Laws

After the civil war, to ridicule the African American Jim Crow laws were initiated and created more disparities of language in our Justice System. These laws help to maintain and create a racial class system in the American society. One group of people asserting power over another for the pride and vanity of a system of politics. In 1896 Supreme Court ruling in Plessy v. Ferguson legalized racism under the guise of a doctrine referred to as “separate but equal”. The Judge in this case argued that “the object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.” —Justice Henry Billings Brown. (Plessy v. Ferguson). Consequently, our judicial system like our founder fathers and laws that followed failed to rectify stigma of racism. Under “separate but equal” doctrine racial segregation was constitutional. In a film American History X, we see this indoctrination when Danny doing a report on civil rights arguing for Hitler as a civil rights leader. Moreover, Derek after heinous aggravated murder of two African Americans, his only sentenced to 3 years, accordingly an African American woman in a film thinks that Derek deserved the death penalty for what he did.

In 2017, in a case of John Rik Howard who admitted to kicking coat hanger into a rectum of 18 years old black disabled teammate with see the same believe that Danny held in a film, filth, destruction, chaos, death and greed. In Howard after the victim testimony despite evidence that white players and coaches called the victim “fried chicken, grape soda and Kool-Aid and taught him a KKK-glorifying song that called for the lynching of black people, the Presiding Judge agreed with Dietrich Attorney General and discounted testimony of racist remarks during assault. Times-News reports that during sentencing Judge Stoker said that “nobody” thinks those are racial slurs, even though the terms have a long history of being used as racist insults (Riggins).

In contracts to the film American X, Derek explain how police are granted certain amount of authority by society and white people, wherefore the cops used a textbook-solid tactics in a betting of Rodney King. Derek further allude that white people pull over because the trust the law. This couldn’t ring truer as we compare Idaho crime which shared similar characteristics with Chicago Four. Each crime involves a brutal assault against a special needs teenager, each involve the issue of race. Rick Howard was sentence to three years of probation and three-hundred hours of community service on a charge of felony injury to a child. The judge also granted a deferral judgment, meaning the conviction could eventually be dismissed upon completing probation successfully. Yet, the Chicago four charges are starkly different from Howard as they been charged with aggravated kidnapping, aggravated battery with a deadly weapon and criminal hate crimes which according to federal sentencing guidelines generally call for a sentence to be increased by about 40% when a crime is considered a hate.

All in all, as here African Americans are still faced with skeptic in suspicion and public policies and laws that that are unnecessary unduly and disproportionately stigmatizing blacks. This stigma was also felt by Obama when he was profile, asked in a vicious fashion about his transcript and for his birth certificate as if his not American. As much as the movie attempt to present how racism and hatred in all its form are distractive and leads to no resolution, we see Derek as a develop character hence blacks remain represented as mindless thugs and antagonist to Derick family. Such portrayal of black maleness that expresses a menace in America culture need to be decoupled in the collective imagination of America. Like Derek says it’s always good to end a paper with a quote. So, like Danny, I borrow from a flip flopper Abraham Lincoln that; “Through passion may have strained, it must not break our bonds of affection”. Once we recognize that African Americans are the recipients of the outrageous indignity by being assume not to be intelligent and human, the stigma of racism can be solved. A dialogue that suggests both sides on equal footing can be enacted, one that point s toward a realized humanity for both the white and blacks (Freire). We other missed opportunity for our President to correct the History of America that has stain in our nation, Schools are the institutional mediums that should be used in an alternative to articulate expressions and educate ourselves as we hold each other accountable. As people learn in multiple ways, creation of alternative structures to admit multiple form of learning will be a start in a right direction.

Our thoughts and prayers goes to families that had been affected by this violence in Charllottesville.

Works Cited

Freire, Paulo. Pedagogy of the Oppressed. New York: Herder and Herder,, 1970.

McColley, Robert. “Gentlemen’s Opinion on Race and Freedom.” Slavery and Jeffersonnian Virginia. Urbana: University of Illinois, 1964.

McLaurin, Melto. Celia A Slave. Georgia: University of Georgia Press, 1991.

Plessy v. Ferguson. No. 163 US 537. Supreme Court. 18 May 1896.

Riggins, Alex. “Jurge says Dietrich crime not racially motivated.” Magic Valley (Feb 24, 2017).

Williamson, Jurge Hugh P. Negro Digest (1964): 84.

Worthington, Daryl. “NewHistorian.” 2016 Feb 2016. newhistorian.com/the-meeting-that-made-confederate-states-of-america/5901/. 07 August 2017.

 

RAISE Act: Exploitation in Ski Mask for American Skilled Workers.

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We think America in terms of champion of democracy, liberty, equal treatment and opportunities.  For immigrants who don’t have European characteristics or that of a Caucasian, Trumps new RAISE Act policy is a wrap of old fish in a piece of paper that still going to stink. Immigration and globalization policies such as NAFTA are written to give United States employers a latitude to exploit immigrants.  This exploitation is well demonstrated in a 2000 film Bread and Butter directed by Ken Loach. As here RAISE Act bill eliminates the diversity visa program, which awards 50,000 visas every year based on a lottery. It cuts so-called “chain immigration,” in which immigrants can sponsor their family members to come to the United States. It caps the number of refugees admitted to the United States every year at 50,000. And it creates a point system in which visa applicants are scored based on “predictors of immigrant success,” like their ability to speak English and their education level. Meaning the bill not only its racist in its inception but a chameleon that will change as it slips through legislation’s to affect American Skilled workers to compete with foreign cheap labors on H-2A Visas.

Prime example consequently is President himself, accordingly to his winery, private clubs in Florida including Mar-A-Lago Resort reportedly asked to hire 29 workers through the federal H-2A visa program. The winery, located near Charlottesville, had originally intended to hire six foreign workers in December, but applied for 23 more this year. (Seipel) . According to New York Times Feb. 25, 2017 article by Charles V. titled “Donald Trump to Foreign Workers for Florida Club: You’re Hired  the President has also pursued more than 500 visas for foreign workers at Mar-a-Lago since 2010 most from Romania while per US Department of labor hundreds of American applicants failed to get the same jobs.

In an article by Roger Waldinger; Helots No More, a union organizer explain that the immigrants would work for lower wages and quoted as saying….” I think ‘cheap’ was less of a question as sort of ‘cheap’ in addition to “controllable”. The pattern of RAISE Act has well been demonstrated in a film Bread and Roses, the debates in storage room and at home shows that these janitors were not naïve but politically informed. However, the conflicting demands between family security and unionization was detected by fear of getting fired. A scene when unsympathetic Perez fired Teresa who she been working there for 17 yrs. just for been late, shows how fear and control is been asserted against these workers, moreover emphasis of this fear is well demonstrated by Rosa’s negative approach towards union. Administration policies that call for crack downs makes many migrant workers afraid to come forward even when they are cheated of wages. Scaling back on regulations by Trump administration means less OSHA and more cutting corners in industries that employed undocumented workers. Beware as the impressions of this exploitation are now aimed at American skilled workers through RAISE ACT.

With such policies as here, the US employers in 1% brackets have incentives to hire undocumented immigrants and H-2A visas who will be in the whips of their exploiters because there are more afraid to assent their workplace rights or file a complains that might bring them into attention of authorities. To emphasis, Antonio Vanegas, a Guatemala native successfully filed and recoup back pay from his employer, a pita shop in D.C. and his was later detained by immigration”. (Dave Jamieson). We can cite a case of Mi Pueblo Supermarket chain in Bay area, “this chain announced that it will use E-Verify after its employees tried to organize union”. (Eunice Cho). Moreover, immigrant exploitation is built into our federal welfare codes like 1996 Welfare Reform, which deny benefits to undocumented immigrants. The immigration law also denies accompanying spouse to migrate with on guest visas. These provisions kept immigrant’s away from public assistance and turn them into super-exploitable, low wages workforce regardless of wages and working conditions. “Flooding the low-wages markets increases the number of people competing for jobs”. (Hoffer) This makes it easier for employers to pay less and harder for the union to organize. David Bacon Article How US Policies Fueled Mexico’s Great Migration detail how this exploitation from inception are product of the interest of globalization by big Cooperation. Moreover, this article further shows how hog farmers had to follow their jobs that they lost in Veracruz when Smithfield flooded the Mexican markets with their products and disenfranchise 4,000 farmers with 120,000 lost in jobs. These migrations and exploitation cannot be said are voluntary choice by immigrants as US policies themselves created these conditions. In many industries, a rule of thumb is’ you follow the job, similarly Mexican farm, poultry, etc… workers had to follow sectors of employment. Subsequently, we cannot agree with the nuance view that the dynamics of this exploitation are matter of individual choice or walk like we have broom sticks stuck in our rear end accusing Latinos of taking our jobs when their presence here is due to our foreign policies such as NAFTA and RAISE ACT. Trump RAISE Act its written to follow a suite of H-1B to which US computer programmers and other tech workers complain that companies use workers from Asia to undercut Americans — going so far as to lay off U.S. workers and forcing them to train their foreign replacements who are hired for far less pay. (Stephen Dinan).

All in all, to fight this exploitation demand pricking the cracks in our foreign and immigration policies. Neither social condition’s nor social policy can change for the better unless presses from below. We need to take notice of 1912 textile strike in Lawrence, Massachusetts or Justice for Janitors Campaign in 1990 and understand the power that the workers possess, and start subverting the system that oppress us. As the President failing American People, as constituency were are fired, so what not do for the Boy Scott billionaire club? Raise Act mirrors policies that led to employment issues faced by over flooded low paying jobs industries. Beware, these  many ways to kill a cat than pour it with a cream or shook it with a butter. As here, if outsourcing is not enough, Raise Act is a chameleon that is ready to change color into a legalized discrimination against U.S. skilled workers.

References

Chalmers, Martin. “Thinking Man.” Stories of Mr Keuner. San Francisco: City Lights Books, n.d.

Dave Jamieson. “Donald Trump’s Crackdown on undocumented Immigrations Is Silencing Exploited Workers.” Huffpost (03/08/2017).

Eunice Cho. The Mercurynews.com. 23 04 2013. 12 07 2017.

Hoffer, Frank. “The Real Problems of Migration Work.” 29 04 2014. http://www.socialeurope.eu/2014/04/migration-and-work. 11 07 2017.

Paul Laverty. Bread and Roses. 2001.

Seipel, Brooke. “Trump winery seeks to hire more foreign workers.” The Hill (03/21/20147).

Stephen Dinan. “Trump administration warns companies on H-1B visas: Hire Americans over foreign guest workers.” The Washington Times (Monday, April 3, 2017).

 

Lesson’s from The Bush Era Reflects on What has to Come of Trump Administration Lies

Our inner voice of reason has been extinguished and intuitively remote controlled. In both dystopian and utopian societies once ideas are imprinted in our brains and opinions formed, we become like horses with blinkers. Before the invasion of Iraq without substantiated evidence Collin Powell presented a case that Iraq had weapon of mass distractions. As here, fabrication of propaganda was used by those who exert power by distorting the historical development leading to the war and alter records to stomp out any contrary view from the one formulated by the Bush Administration coupled with ensuring absolute control over public opinion. With the aftermath of September 11 our nation was still in grief and vulnerable. In this setting, the public is emasculated and the administration preyed on our emotion and stopped at nothing to justify the means. Without factual knowledge, we bought into distorted public opinion that Iraq has weapon of mass destruction and waged our patriotic support for the invasion. Subsequently even after Powell reffed to his United Nation presentation about Iraqi’s weapon of mass destruction “as a lowest point in his life”, we still ignore the correction but rather maintain a sentiment by putting lipstick on a pig that Iraq was developing nuclear weapons, and yet today most Bush supporters still claim that WMD were hiding or moved before the invasion.    

In a movie 1984, we observed people of Oceania seeing posters and television screens of “Big Brother” face announcing that they were at war with Eurasia and winning instead of Eastasia, as much as this information was misleading, people of Oceania they believed that to be true.  In comparisons, the Bush Administration at the time leading to war in Iraq they used mass media as effective tool to control people thoughts ensuring absolute control over public opinion. The belief was refined in a media by repeatedly uttering “Iraq,” “9/11” and “war on terror” in the same breath. (Paul R.Pillar). This propaganda was so successful that the public took on a rule of passive individuals and not able to think critically, merely following a believe that Saddam Hussein not only has alliance with al-Qaeda but also had been directly involved in the 9/11 attack.  According to Paul R. Pillar article The Iraq War and the Power of Propaganda the Bush campaign was “testimony to what a determined use of the opinion-molding capabilities of the government of the day, including the bully pulpit of the presidency”. (Paul R.Pillar)”  Wilson job in a movie 1984 was to manipulate documents and photographs to ensure that history shows Oceania “Big Brother” government in a positive light. As much as Wilson knew this information was misleading, he still bought into mindset that people of Oceania we well off and cared for by the government. In comparisons to Wilson is Condellesa Rice when she had foreknowledge a year before invasion of Iraq that anonymous government nuclear expert had seriously doubted that the tubes on satellite photographs were for nuclear weapons (Benen). To make a case for war in Iraq, Condellesa Rice went on to promote version of the story by choosing interpretation favorable to the Bush administrations. With Rice trademark line: “We don’t want the smoking gun to be a mushroom cloud” without substantiated evidence the American public and United Nation took her statements as true. At this juncture, we were convinced and hooked by perceived truth.

 

Furthermore, with aftershock of September 11, the Bush Administration preyed on our emotion and stopped at nothing to justify the means going to war. In an article that we discussed in class Trump’s Lies vs. Your Brain the author writes “Lies are exhausting to fight, pernicious in their effects and perhaps worst of all, almost impossible to correct… .and that when we are overwhelmed with false information our brains are particularly ill-equipped to deal with lies particularly when they come not singly but in a constant stream.” (Konnikova). As WMD’s lies hit our brains in a constant stream, we bought into the Bush Administration authoritative claims and seen invasion of Iraq as a necessary response to avert emergence of terrorist threat in the Middle East. In an article; Why Facts Don’t Change Our Minds the author writes about confirmation bias and emphasize that people have tendency to embrace information that supports their beliefs and reject information that contradicts them. (Kolbert). For instance, after the U.S. invasion of Iraq, the belief that Iraq had weapons of mass destruction before the invasion was closely associated with support for President Bush (Kull). As here we tend to avoid assault on our identity and evaluate misperceptions of WMD’s by reinforcing such information with a directional bias. Yet, after Colin Powell correction, Republicans as they align themselves with the Bush Administration didn’t change their minds to conform with the truth. Accordingly, they ignored the correction but rather maintain a sentiment by putting lipstick on a pig that Iraq might had move its nuclear weapons. Thielmann, who headed the office of Strategic, Proliferation, and Military Affairs in the INR until September 2002 when ask about accuracy of the information his own intelligence bureau had developed and Powell awareness of  truth omission, he replied : I can only assume that he was doing it to loyally support the president of the United States and build the strongest possible case for arguing that there was no alternative to the use of military force. (Schwarz, Jonathan).

 

After all, armed with preserved truth of alleged alliance between Saddam Hussain and Al Qaeda, our nation further agreed with the Bush Administration that there is the need to step-up efforts to enhance the country’s intelligence-gathering capabilities subsequently modeling 1984 Oceania where citizens are never sure whether they are being watched. To Emphasis, in 2013 a $52.6 billion budget— was brought to light last year when the Washington Post obtained a “black budget” report from Snowden, detailing the bureaucratic and operational landscape of the 16 spy agencies and that the National Security Agency alone has annually scooped up as many as 56,000 emails and other communications by Americans with no connection to terrorism. (Godon). In contrast to 1994 movie, not only that we see “Big Brother” government oversight and web surveillance but also a formation of dystopia characteristics where we are surrounded by the Thought Police. With patriotism imprint to our brain, our understanding of the effect of information on issue opinions going to war were stained. Afterwards, the Bush Administration could effectively control the public opinion through uncertainty widespread symbols of Big Brother watchful face. Our inner voice of reason was extinguished and intuitively remote controlled. Henceforth We didn’t have to be physically in Abu Ghraib prison Baghdad or undergo Room 101 O’Brien “Big Brother” series of torturous interrogations against Winston, instead our grief of September 11 became potent weapon for the Bush Administration to oppressed our minds. Our backbones were broken as we orderly behaved obediently, in a process we let go our privacy and unquestionably echo with senses of patriotism henceforth afraid to hold contrary views. With lies developing into preserved truth and ideological preferences that aligned with the Bush Administration we became victims of circles of certainties within which reality is imprisoned. Consequently, once ideas are imprinted in our brains and opinions formed, like Wilson I had to agree we added 2+2 to equal 5, we swallowed our opinions and gave up political process of check and balances that could had demanded substantiated evidence and questioned lies used to push for war.

References

Benen, Steve. “The ’smoking gun’ wasn’t a mushroom cloud; it was a New York Times article.” The Carpet Bagger Report (October, 04 2014).

 

Godon, Philip H. “September 11 and American Foreign Policy.” Bookings Education Articles (2001, November 1).

 

Kolbert, Elizabeth. “Why Facts Don’t Change Our Minds.” The New Yorker (2017, February 27).

 

Konnikova, Maria. “Trump’s Lies vs. Your Brain.” (2007 February).

 

Kull, Steven, Clay Ramsay, and Evan Lewis. “Misperceptions, the Media, and the Iraq War.” Political Science Quarterly 2003: 569-598.

 

Paul R.Pillar. “The Irag War and the the Power of Propaganda.” The National Intrest (September 14, 2011).

 

Schwarz, Jonathan. Huffing Post. com. 05 02 2013. 28 07 2017.

 

SD Chinese Historic Museum: Unfinished Story

 

 

 

 

 

 

Fanning his face with Chinese sandalwood fan teenage boy told me that he was a volunteer and only been at the place for two weeks”., as a hot warning breeze embraces me and piercing look of Donnie Yen in Crouching Tiger, Hidden Dragon: Sword of Destiny, I knew what the boy was telling me at that moment, “don’t border me and “N” don’t even think about it!” so I was on my own and my visit was short and brief.

Meet with suspicion that reminded me of ongoing issues of race and stereotypes discussed in my history class, including very own Chinese history under Scott Act of 1882 i was astonished. Nonetheless, I thought to myself that in a formation of the museum that is modeled to narrate- Chinese history in California and rationales to build their own system of procuring jobs, from inception one expect to see more details [in spite of vital role Chinese played in developing American west coast to prosperity through fishing industries, railroad and building of Del Coronado Hotel] of how the State and federal acts were significant part of a vicious, violent, brutal, systematic campaign of ethnic cleansing against Chinese migrants

Borrowing from the words of Tom Hom’s “Most people see things as they are… An artist sees things as they should be or could be!” Unfortunately the narrative that the museum attempt to relay is not as it should be; therefore, San Diego Chinese Museum its unfinished story.

Your visit to the Museum will help to finish writing this fascinating story.

Lazarus Archison T.

Manny Pacquiao VS. Jeff Horn Non-pay-per-view Fight for Pacquiao Since September 2005.

PATRICK HAMILTON/Getty Images

“Battle of Brisbane” a  Thriller in Australia

It will be the first non-pay-per-view fight for Pacquiao since September 2005.

“I am so happy fans in the U.S. will be able to watch it for free on ESPN,” Pacquiao said Tuesday from Brisbane. “It’s good for boxing.”

His Hall of Fame trainer, Freddie Roach, took the “better see him now” approach.

“Manny only has a few fights left, and for fans to be able to see him on ESPN instead of pay-per-view is a real gift,” Roach said. This will be one of the few fights in his 22-year career in which Pacquiao is not the crowd favorite. Tuesday, he recalled an earlier one. Source (Bob Velin , USA TODAY Sports)


Boxing’s only eight-division world champion and the reigning Fighter of the Decade, Pacquiao has accepted the challenge of undefeated No. 2 world-rated contender Jeff Horn to defend his WBO welterweight title, Saturday, July 1 (Sunday, July 2, in Australia)Suncorp Stadium.  Source omitted: Boxing News.

Manny P
“Thriller in Australia”

A 29 year old Horn (16-0-1, 11 KOs), from Bisbane, Queensland, Australia, a school teacher enters this fight having won his last three fights — all in 2016 — against Ali Funeka, Rico Mueller and Randall Bailey inside the distance.  Pacquiao and Horn had a combined record of 105-14-4 when he fought them.
Horn is world-rated No. 2 by the WBO and the IBF. A former Olympian from London had his career almost cut short due to fractured larynx in February 2016 while preparing for his bout against Randall Bailey. This upcoming bout will be the first fight for Horn in 2017.

Jeff Horn
“The Hornet” Legend in a making!

Pioneer Manny Pacquiao (59-6-2, 38 KOs), from General Santos City, Philippines, is in his third reign as WBO welterweight champion.  He regained the title on November 5, winning a dominant unanimous decision victory over defending champion Jessie Vargas.

I personally put my money on Horn even if skepticism is understandable where ego and greed run rampant… I think Horn will deliver the contest and win this fight in round 7…

What I your thoughts going to this fight?

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West Wing Singing Canary’ cause and effects

October 21, 2016 “It took guts to make a move he made in light of opposition he had” Praising Comey.

January 6, 2017 Intelligence community releases Russia report concluding that the Russian government ordered an influence campaign against United States Presidential election.

February 14 Valentines Day Loyalty meeting with Trump, According to a memo written by former FBI director James Comey, President Trump asked Comey to drop the bureau’s investigation of ex-national security adviser Michael Flynn’s connections to Russia. Source: http://www.npr.org

March 20, 2017 Comey reveals FBI probe into russian election interference including investigating any links between the Trump campaign personnel and if there was any coordination between the campaign and russian efforts.
May 3 2017 James Comey testifies before Senate judiciary committee regarding Clinton email investigation. May 9, 2017 FBI sends a letter to Senate Judiciary committee clarifying Comey’s testimony on Clinton’s Server
May 9 Trump fires Comey.   “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment og the Dept. of Justice that you are not able to lead the bureau.” www.foxnews.com

May, 10 2017 President Donald Trump hosted Russian Foreign Minister Sergey Lavrov and Russian Ambassador to the US Sergey Kislyak at the White House Wednesday amid the swirling investigation of Russian contacts with Trump campaign and transition officials in 2016 and Tuesday’s firing of FBI Director James Comey, who was handling the probe.

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    • from this meeting Donald Trump’s leak of classified information is alleged.
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What’s next for THE BIRDY twitter-and Our Countries National Security …That’s The QUESTION?

Punitive Nature of Deportation and Lack of Proportionality Necessitates the Need for Constitutional Safeguards

justice for olango

The procedural rights available to non-citizens in deportation proceedings should be determined through a combination of “the hard floor constitutional rights model, used in criminal proceedings. BMW vs. Gore as well as Padilla vs. Kentucky 559 U.S. 356 (2010) this case mark a sharp departure from the Court’s century long characterization of immigration consequences as “purely civil” both cases opened the door for the extension of a constitutional protection traditionally reserved for criminal realm into civil proceedings. In BMW vs Gore 517 U.S.559 (1996) United States Supreme Court limited punitive damage under the due process clause of the 14th Amendment. The Court found that the excessive punitive damages must be reasonably necessary to vindicate the State’s legitimate interest in punishment and deterrence. In making this determination the Court applied the degree of reprehensibility of the accused conduct and the penalties that could be imposed for comparable misconduct. Punishment, regardless of whether it is civil or criminal, is subject to various constitutional restraints.

In contrast to characterization of immigration deportations, the Court in Padilla alluded that deportation is the penalty for a crime, then as such the criminal law norm of proportionality and penalties, rooted in the 8th and 14th Amendment, should equally apply.

https://share.constitutioncenter.org/amendment-viii
The fact that the results from a criminal conviction are an integral part that may be imposed on immigrant’s defendants who plead guilty to specified crimes, it should be argued that if deportation is part of a criminal penalty, other protections afforded criminal defendants should extend to removal proceedings, at least where these results are directly from convictions. Moreover, if deportation is the penalty for a crime, as the Court said in Padilla, constitutional protections should apply to those immigrants facing deportation as consequences for crimes committed.

Deportations triggered solely by a criminal conviction is a part of the penalty for the underlying criminal behavior, demand the Court to explore the question of what other constitutional limits that can be placed on the imposition of that punishment considering the principle grounded in the 8th Amendment which a penalty should be proportionate to the crime it punishes. The appropriateness of any given punishment is assessed in large part by how fitting it is to the crime committed, and Eighth amendment governs the boundaries of permissible punishment by forbidding punishment that is cruel and unusual.
Due to lack of proportionality principle from our current law of deportation for crimes, aggravated felony category imposes deportation equally for, among other offenses, murder, petty theft and failure to appear in court. Similarly, the sanction is the same regardless of an individual’s history or connections in the community and applies equally to an undocumented individual who entered the country yesterday without permission and to a long-term lawful permanent resident who may have deep roots in the community such as dependent U.S. Citizen family members.  Thus, an immigrant convicted of theft at Vons and a rapist results are the same …deportation!

Much of the sense of injustice that results from the operation of our current criminal deportation law comes from recognition of the blatant disproportion between the sanction of automatic deportation and the circumstances under which it is imposed.

In addition to the centrality of proportion to our sense of just punishment, Eight Amendment jurisprudence is an attractive place to begin exploring amendment reach, because the jurisprudence has already been extended to prohibit certain-non-criminal sanctions where these were found to be penal in nature, even if not in name or explicit intent.

In Sum the under the Eight Amendment the court should step in, and review the proportionality of removal as a criminal sanction. This could take the form of the review of individual cases in which deportation may be disproportionate to the offense. It might also take form of consideration of categorical challenges to certain aspects of the criminal removal scheme at large, such as the “aggravated felony” provisions and their inclusion of manifestly minor offenses.

 

All rights reserved textboosetrade.com 2016

 

 

May Day Teach-in Schedule and Outline of the Day

May Day Teach-in Schedule and Outline of the Day

On Steps of B Building facing Park Blvd.

8:30: Gather at B Building

9:00: Greeting and Music by La Rondalla Amerindia de Aztlan

9:05: Jim Miller, Professor, English and Labor Studies: May Day History and how it is relevant to current threats to labor and democracy in the Trump Era.

9:15Rosi Escamilla, Professor, English and Chicano Studies: Lucy Parson’s speech and how it speaks to the present

9:25: Justin Akers-Chacon, Professor, Chicano Studies: May Day and the History of Immigrants’ Rights Struggles

9:35: Enrique Davalos, Professor, Chicano Studies: How Communities are Resisting the Current Assault on Immigration Rights

9:45: Doc Rivera, EOPS Counselor and Personal Growth Professor:  Students as Workers and Activists (Music)

10:00: Masahiro Omae, Professor, Political Science: Economic Inequality and Its Effects on Policy and Democracy

10:10Alejandra Lucero-Canaan, Professor, English and Yaneth Escobosa, City College Alum, Honors Staff: How the Material Consequences of Economic Inequality Intersect with Race and Gender

10:20: Laila Aziz, Board Member, Pillars of the Community, Director of Operations, Metro San Diego: The Prison Industrial Complex as One of the Wages of Economic Inequality

10:30:Kelly Mayhew, Professor, English, Labor Studies Program Coordinator:  How Economic Inequality Intersects with Climate Justice

10:40:Gerald Vanderpot, City College Classified Staff: The Existential Threat to Public Education

10:50:Christy Ball, Professor, English: Students and Adjuncts as Disposable People in the Trump Era

11:00: Music by La Rondalla Amerindia de Aztlanbefore student march and speak out.

11:15 Student March around campus: Sign making at B Building for people arriving from elsewhere

2:15-1:00: Student performances, music, and Speak Out. 

1:00: Music before Rally

AFT, Student, and Community Speakers

2:00: Music by La Rondalla Amerindia de Aztlan and March to Federal Building

May Day Teach-In Study Guide: 10 Questions

 Here are some general questions to consider as you attend the teach-in:

  •  1)    What are the historical origins of May Day or International Workers Day? How does the history of May Day speak to the present?
  • 2)    Who was Lucy Parsons?  How does her speech address issues that we are still dealing with today?
  • 3)    What is the history of the contemporary immigrants’ rights movement?  Why is it important?
  • 4)    How are local communities reacting to the current crack-down on immigrant communities by the Federal Government?
  • 5)    What are some of the challenges community college students face?  What role do students have as workers and activists?
  • 6)    What is our current level of economic inequality?  What effects does it have on our politics and communities?
  • 7)    How does economic inequality intersect with race and gender issues?  How are ordinary people’s lives effected?
  • 8)    What is the role of the prison industrial complex in our communities?
  • 9)    How will current Trump administration policy affect the climate?  Or the environment? What is at stake?
  • 10)How will current Federal education policies affect our schools and colleges?  How will they affect teachers’ and students’ lives?

Sources:

Mona Alsoraimi-Espiritu
Assistant Professor, English 
High School Coordinator
San Diego City College 

 

We Are Not Spineless Stooges!

May Day Call to Action – NOT Business as Usual

For more information please contact   
Mona Alsoraimi-Espiritu
Assistant Professor, English
High School Coordinator
San Diego City College
malsorai@sdccd.edu
Jim Mahler <aftjim@mac.com>
Date: Tuesday, April 18, 2017 at 1:45 PM
Subject: UPDATED DETAILS: May Day Call to Action - NOT Business as Usual

Click here if we can count on your participation on May 1st!

Displaying AFT May Day Events.jpeg

518j69JlmuL._SX321_BO1,204,203,200_Reclaiming Our Stories: Narratives of Identity, Resilience and Empowerment Paperback – September 1, 2016
by Various (Author), Mona Alsoraimi-Espiritu (Editor), Roberta Alexander (Editor), Manuel Paul Lopez (Editor)        

Reclaiming Our Stories: Narratives of Identity, Resilience and Empowerment gathers 19 powerful narratives written by members of the Reclaiming Our Stories Community Writers Workshop located in Southeast San Diego. These authors took great risk bringing these narratives to fruition, stories that pulsate with the kind of vitality that can only be constructed out of pain, love, and outrage.

These authors, almost all of them emerging, reached deeply into their lives to excavate these offerings that, in the end, rise in triumph. Although it wasn’t the intention of the project, most authors chose to write about some of the most traumatic events in their lives. In many cases, we find in these pages brutal reflections of ugly and painful realities confronted by these authors, often from a young age, and often the result of systemic racism and the consequences manifested by a society in which many do not have equal opportunity to thrive.

These are stories of children who have suffered incredible trauma and who do not receive adequate and immediate assistance; of young people who have drowned their pain through the abuse of alcohol and drugs; of those who grew up in environments where the only role models were gang members and hustlers; of a criminal justice system that has, as Michelle Alexander reported in her groundbreaking book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness: More African Americans in prison, jail, on probation or parole than were enslaved in 1850, before the Civil War began ; of the human consequences of legal lynch codes, like the California Penal Code 182.5, that under their purview, allow people arrested, tried and convicted for offenses that everyone, including the district attorney, knows they did not commit; of homelessness; of immigrant families torn asunder by unfair immigration practices; of broken families.

These authors counter dominant narratives that attempt to label or mislabel their experiences and worth. Institutional forces often gargantuan in their reach and influence to subjugate or pacify. In this anthology, however, readers will find narratives that reclaim and recast both a reality and future forged on their own terms. In the end, if we believe that humanity’s greatest wisdom has been transported and preserved via the ancient tradition of storytelling, looking forward, it is the indomitable truthSayers that will continue to save us from ourselves examples of such found in these pages. These narratives exemplify the healing that occurs when the courageous work of introspection confronts the merciless blank page and emerges victorious.

Sources:  https://www.amazon.com/Reclaiming-Our-Stories-Narratives-Empowerment

LEMP MANSION… meeting in a ladies room.

Don’t mind the bed bugs, mind the parasites and meetings that take place in a ladies room. In or around October of 2016 my system was hacked and all my files including personal and financial were transferred to some place remote. Both my desktop and laptop computers were left encrypted.

Upon calling my ISP (Internet Service Provider) ATT & EarthLink,{ref. # J48032044} to my surprise I found out that an unknown person(s) to me whom identified himself to my ISP as “Delancy” had successfully changed my account, name and password to my account{00000000}. Prior to this incident, I had noticed that something was wrong in my system and accounts as I was only allowed minimal access to sign in as a guest and had 1gb.

In spite of investment I made on two security software’s, I was meet with disappointment when I found out that the subjects were account administrators meaning it didn’t matter if I had install 50 security software’s since I was a guest in my own accounts. Let along the fact that every time I request a password charge, they will also get this information simultaneously as they had linked there emails to my email account. See below;

— Forwarded message ———- From: “Mail Delivery Subsystem” <mailerdaemon@googlemail.com> Date: Feb 16, 2017 3:15 PM Subject: Delivery Status Notification (Failure) To: <lazarustarchison@gmail.com> Cc: Error Icon Address not found Your message wasn’t delivered to account-security-noreply@account.microsoft.com because the address couldn’t be found. Check for typos or unnecessary spaces and try again. The response from the remote server was: 550 Requested action not taken: mailbox unavailable Final-Recipient: rfc822; account-securitynoreply@account.microsoft.com Action: failed Status: 5.0.0 Remote-MTA: dns; mx2.hotmail.com. (65.54.188.72, the server for the domain account.microsoft.com.) Diagnostic-Code: smtp; 550 Requested action not taken: mailbox unavailable Last-Attempt-Date: Thu, 16 Feb 2017 15:15:36 -0800 (PST) ———- Forwarded message ———- From: Archison Lazarus

At first the scam was executed  by poking holes through drywall as my room is adjacent to the bathroom. The ladies room meetings will take place as the subject device means and ways using some sort of infrared scanner to cypher  Gateway IP address from other electronics that were connected to the Router. Per security scan performed, this subjects put a landline and a router by which they  were able to reroute my entire service, which explain a 1gb.

They configured the service by allocating specific IP addresses to their devices running on DHCP mode, and map devices to particular static IP address. (NAT mapping). Statically IP address will eventually override security settings made on my account, router and  sever address, and they manually through their router (as public pool) specified  a desire IP address for the DHCP server to issue to the desired device and issue from. The mapping is to the WAN IP Address associated with my account. Police report was made…however I am there one been chance and harassed, WHILE the culprit are given more leeway to harass, go amazon just to invite my privacy and access to the connection via their router as is link to coaxial going through my apartment.

Fuck that this ARE serious Federal Communications Law such as Wiretap Act 

a/k/a as “Title III”, which prohibits “any person,” including law enforcement, from making an illegal interception or disclosing or using illegally intercepted material. 18 U.S.C. § 2511(1).

 

 

KONG: SKULL-ISLAND

Director Jordan Vogt-Roberts has said in interviews that he pitched “Kong: Skull Island” to Warner Bros. as “King Kong” meets “Apocalypse Now.” Working with an 84-year-old cinematic character, Vogt-Roberts has injected new life into the property by borrowing heavily from a Francis Ford Coppola New Hollywood classic that’s now 38 years old. The result shows its influence — it could have easily been titled “Apocalypse Kong” — but it’s surprisingly fun and fresh. It’s only March, but with the one-two punch of “Logan” and now “Kong,” have blockbusters become great again?

“Kong: Skull Island” takes place in 1973, when a motley crew of scientists, cartographers, a photojournalist and a tracker get a military escort to an unknown island from a group of soldiers on their way out of Vietnam. The plan is to check things out before the Russians do, naturally.

Kong is isn’t the only game in town on this island, as they discover from kooky, long-lost American pilot Marlow, (John C. Reilly) shot down in 1944, who survived thank

s to the native tribe. Kong is the protector against what he calls the “skull-crushers,” serpentine dragon-monsters that come up from the earth’s hollow core.

The film is as overflowing with characters as it is with prehistoric monsters, which keeps things moving at a rapid clip. When their helicopters are initially swatted out of the air by the mountain-sized primate, everyone scatters into different groups — there are the soldiers, lead by Col. Packard (Samuel L. Jackson), who goes dark, fast. Denied a satisfactory culmination to Vietnam, he swears revenge on Kong. The other group is led by the peaceniks, if you will, a British tracker named Conrad (Tom Hiddleston) and photojournalist Mason Weaver (Brie Larson), who preach co-existence over obliteration.

“Their hyper-stylized confrontations with the island’s main attraction have the sizzling fury of “Apocalypse Now” (and a groovy classic rock soundtrack to match), and the movie does a better job at reimagining some of the tropes from Francis Ford Coppola’s classic than the hackneyed run-and-gun survival saga that ensues once they crash down. Of course, as soon as Kong arrives he steals the show, and none of the expansive human ensemble can compete for attention”. Eric Kohn Indie Wires.

Part 2 [U]nder California law, Possession Requires Knowledge.

Justice

Based on Part 1 Publication Titled Differential differences, we point out element eccentric necessary to initiate removal proceedings as conviction not a complain or facts thereof.  Part 2 we will look at overview elements requirement for controlled substance to violate that State statue. This approach can be also applied in other areas of law that require Men’s rea.  All issues assented are opinions of the author, common sense dictate your own research.     

Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character.”

Moreover, California does not, criminalize the mere power to control the narcotic; instead, “the offender must knowingly control it with the specific intent to sell it or to have someone else sell it”.

Sandoval-Venegas, 292 F.3d at 1107 (citation omitted).

Consequently, assuming that “L.I.O.” is applied correctly and charged under CHS § 11357 for simple possession[1]

Federal law prohibits the simple possession of any amount of a controlled substance 21 U.S.C. § 844(a) However,  It is also noted that an individual could be assessed a civil penalty for possession of a “personal use amount” of marijuana for is first two violations. 21 U.S.C. 844 a (d). Thus, the individual could be fined for possession of a “personal use amount” of marijuana twice before he would be convicted of simple possession and subject to deportation.

RESPONDENT WHAT HIS REQUIRED TO KNOW IS NOT THE SAME

AS

WHAT THE JURY MUST FIND.

As here, the crime is knowing and intentional possession of the controlled substance itself. See: United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003) (recognizing that a conviction under § 841(a)(1) requires knowledge that the substance was a controlled substance, but rejecting the argument that knowledge of the exact drug type or quantity is an element of the offense). United States v. Abdulle, 564 F.3d 119, 125-26 (2d Cir. 2009) (“[T]he law is settled that a defendant need not know the exact nature of a drug in his possession to violate § 841(a)(1); it is sufficient that he [or she] be aware that he [or she] possesses some controlled substance.”).

The Suspect/defendant knowledge of what controlled substance he posses has no bearing on the Jury’s finding that he did in fact posses a specific controlled substance. See: CALJIC 12.21.]                                                                                                                                                 “Elements, as distinguished from means, are factual circumstances of the offense the jury must find unanimously and beyond a reasonable doubt.” Omargharib, 775 F.3d at 198. (citations omitted). The elements of the offense possession with intent to sell a controlled substances are the possession thereof with knowledge of character of the substance not nature of the item (See: People v. Gory 28 Cal.2d P.453-454). Therefore possession with intent for sale controlled and knowledge thereof would be lacking and defendants would not have committed the offense charged.

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[1] See: CHS § 11359 Jury instruction CALCRIM No.2352

DIFFERENTIAL WITH DEFFERENCES

American Flag, American Flag with eagle
Immigration reform march in San Jose. Photo by; Roshanda Cummings (o2be_me)

In Immigration, there are differential deference between a complain and conviction

PART I OF 5

“Whether a particular conviction is a [removable] offense is a question of law. “Thus, Executive Branch cannot be a substitute to judicial branch by adopting meanings based on interpretation’s that are contrary to criminal guidelines, Supreme Court and Circuits Court precedents”.                                                                                                                                 See also, Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000)

To determine whether a conviction constitutes a predicate offense for removal purposes, we use the analytical model constructed by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990).”  Under the categorical approach, we “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ offense”. Descamps v. United States, 133 S.Ct. 2276, 2281 (2013).

  1. a) Statue of conviction is categorical match to the generic predicate offense that is; if the statute of conviction criminalizes only as much (or less) conduct than the generic offense. “A state statute is a categorical match to the generic federal statute if it proscribes the same amount of or less conduct than the federal statute. Taylor, 495 U.S. at 588-89; see also Aguilera-Rios, 754 F.3d 1105, 2014 WL 4800292, at *6-7 (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1686-87, 185 L. Ed. 2d 727 (2013)). “If the statute of conviction ‘sweeps more broadly than the generic crime, a conviction under that law cannot [categorically] count as [a qualifying] predicate, even if the defendant committed the offense in its generic form.'” {if a conviction categorically constitutes a predicate offense the inquiry ends, if not we move to step two}.
  2. b) We ask if the statute of convictions comparatively “overboard” element is divisible if not, then our inquiry ends, because a conviction under an indivisible overboard statute can never serve as a predicate offense. The “elements-centric, ‘formal categorical approach'” precludes this court from delving into the facts disclosed by the record of conviction other than to determine “which statutory phrase was the basis for the conviction.” See Descamps, 133 S.Ct. At 2284-86/ note fn[1]

With emphasis; California Health & Safety Code § 11359 is indivisible and use of “L.I.O.[2]” in a statue is categorical overboard, which precludes application of the modified categorical approach. As explained, to determine whether a statute is divisible, we consider whether “an element of the crime of conviction contains alternatives, one of which is an element of its Federal analogue,  Rendon v. Holder, 764 F.3d 1077, 1081, 1086 (9th Cir. 2014) recently held that a disjunctive statute is divisible, only if it contains multiple alternative elements, as opposed to multiple alternative means.

More specifically under Rendon [id] “[o]nly when state law requires that’ to convict the defendant and the jury must prove and agree unanimously that defendant committed a particular substantive offense contained within the disjunctive worded statute are we able to conclude that the statute contains alternative elements and not alternative means. A statute is ‘indivisible” if it does not have alternative elements and criminalizes a “broader swath of conduct than the relevant Federal law does. Descamps 133 S.Ct at 2282. If a statute is not divisible, then courts cannot apply the modified categorical approach to determine the facts underlying an individual’s particular conviction. Descamps, 133 S.Ct. At 2283, because the Jury must specifically find the defendant knowingly and intentionally possessed a controlled substance, marijuana is alternate means of satisfying the controlled substance’s element.

To arguement can be raised that; the drug listed by reference in CHS § 11360 (a) or 11359 “L.I.O.” is not “element” because “a jury need not find the specific type of drug involve in a case requiring proof of possession. Instructions for 11359 reflect as much in/ See: CALJIC 12.21. [(The people do not need to prove that defendant knew which specific contained substance (he/she possessed].

       Agreeing to buy a controlled substance does not by itself, mean that a person has control over the substance.] Furthermore thus, the inconsistent use of the term “marijuana” is prejudice…as the penalty in § 1170 (h) under the State is the same, it makes no different during the plea hearing whether respondent possessed hashish, hashish oil or concentrated cannabis[3]. See: People v. Romero, 55 Cal.App.4th 147, 156 64 Cal .Rptr 2d 16 (1997). Concerns the mens rea for possession, not whether the specific drug is an element.   

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[1] . A statute is divisible if it sets forth “multiple, alternative versions of the crime,” thereby “effectively creat[ing] “several different crimes.” Id. at 2284-85 (citation omitted). A statute is “indivisible” if it does not have alternate elements and criminalizes a “broader swath of conduct” than the relevant federal law does. Id. at 2282

[2] Lower Included Offense

[3]The drug provisions found in 21 U.S.C. 841 are bifurcated into distinct parts which define the crime and then establish penalties which correspond to the quantity of the drug. Penalty provisions demonstrates that hashish should not be treated the same as marijuana Section 841 (b)(1)(D)( Arguably under 841 (b)(1)(D) penalty provision demonstrates that Congress did not intend marijuana and hashish to be treated in the same manner , even though hashish is not statutorily defined, the penalty distinction is based upon the greater potency of the hashish derivative of the “cannabis sativa” plant, To equate these two drugs in the exception clause of  the Act e.g (241)(a)(2)(B)(i) would be to ignore the importance of this penalty distinction and the clear intent of Congress that these drugs be treated differently.)

HANDS THAT ROCK THE CRADLE

        We can all take this moment and credit all the woman’s around the world as they continue to be preeminent force of change.

To my mother;

As I was born with the scent of the wild and a smell of Gorillas, I thank you every minute of it or else I should had not make it so far. You Rock!
From works of William Rose Wallace:  I recite back the following words;
“Infancy’s the tender fountain,
Power may with beauty flow,
Mother’s first to guide the streamlets,
From them souls unresting grow–
Grow on for the good or evil,
Sunshine streamed or evil hurled;
For the hand that rocks the cradle
Is the hand that rules the world”. (W.R. Wallace)

Salute To All Woman’s

Continue reading HANDS THAT ROCK THE CRADLE

District events celebrate Black History Month

Black History Month
February 1, 2016
|

Image of leaders in black history

Among the events: Please visit: http://www.sdccd.edu/newscenter/articles/black-history-month-events-2016.asp

Super Bowl Creative Dish that is Easy to Whip up, and Impressive to Serve

The Super Bowl isn’t just about cheering on your favorite sports team or disappointing one as my Chargers, or checking out the halftime show or watching hilarious Dr Pepper “Prince” Super Bowl commercials, it’s also about socializing, of course also, eating..

Basic principle of face to face socialization in general is that; humans have some basic instincts that help them to judge you by your behavior based on steady observation.     Thus, face to face socialization is not a statistic process; rather it is a dynamic process which encompass different steps. In general; humans have some basic instincts that help them to judge you by your behavior based on steady observation.

So make this upcoming Super Bowl an emphasis concreteness and courtesy in valuing your friend’s as  conversations that worthwhile are the ones that a family or friends had in person. Forging ahead in forming meaningful relationships with the real world, a day such as Super Bowl Sunday over good meal it’s indispensable part of human social life…and in doing so you don’t have to take a time-out from good nutrition. Whether you’re hosting a party for the big game, or bringing a dish to someone else’s party,I got 5 delicious and healthy recipes that are sure to score you a touchdown.

Don’t want the usual carbs from eating pizza? No problem! This recipe uses portobello mushrooms instead of pizza dough. Plus, these mini “pizzas” only take five minutes to make. That means less time in the kitchen and more time watching football and socializing with guests.

 Portobello Mini-Pizzas

Super Bowl Recipes
Creative dishes that are easy to whip up, and Impressive to Serve
  • Servings : 4
  • Prep Time : 10m
  • Cook Time : 15m

Ingredients           

  • 8 large portobello mushrooms
  • 8 Tbsp. pesto sauce (2 grams of sugar per serving or less)
  •  Mozzarella cheese, shredded
  • 12 black olives, sliced
  • 8 strips of bacon, chopped
  • Parmesan cheese

Directions

Preheat oven to 450° F.

  • Grill portobello mushrooms on both sides. Allow them to cool and drain. Pat them dry and scrape out the black fins to create your mini pizza “crusts.”

  • Cook the bacon to desired crispiness, then chop into small pieces.

  • Spread 1 Tbsp. of pesto sauce on the inside of each mushroom.

  • Top each mushroom with a layer of mozzarella cheese; add the sliced black olives and chopped bacon on top.Finally, top each mushroom with Parmesan cheese and bake for 5 minutes, or until cheese is melted.

For more Creative recipes  dishes that are easy to whip up, read more Continue reading Super Bowl Creative Dish that is Easy to Whip up, and Impressive to Serve

Opioids

Firtime

Epidemic by Prescription

Tell-tale is explosive tread of drugstores occupying every intersection in place of 7-11’s .

Oxycontin, opiatesecstasy, LSD, Ritalin, Adderall and fentanyl amongst other are freely prescribed and readily available opioids.The high risks associated with this drugs is addiction. 

Opium and opium-based drugs breed some of the worst forms of addiction compared to other types of drugs. Addiction in any form happens over time as the brain incorporates a drug’s effects within its chemical workings. Once the brain becomes dependent on opium, it’s working at a diminished capacity due to the damaging effects of the drug.

Opium addiction treatment works to undo the harmful effects of addiction, both physical and psychological. While addiction, in and of itself, cannot be cured, it can be managed. Opium addiction treatment provides you with the tools and physical supports needed to keep addiction from controlling oneslife life.

A Brain Disease

While the initial decision to try opium drugs may be voluntary, the effects of the drug take away a person’s power to choose with continued drug use. According to the National Institute on Drug Abuse, opium changes the brain’s chemical pathways and overall structure over time. This inevitably affects a person’s psychological makeup in terms of his her outlook and daily lifestyle.

Codeine

Codeine is an alkaloid that is extracted from the opium produced from the poppy plant. Codeine is a painkiller that has sedative properties, and is used in prescription drugs, such as Vicodin, and cough syrups.

Morphine

Morphine, like codeine, is an alkaloid that is extracted from opium, and is highly used in the medical field to help people manage their pain. Morphine is commonly administered in hospitals through an IV, to subside a person’s pain. However, morphine is also used to make heroin, which is an illegal narcotic drug.

Oxycodone

According to the Center for Substance Abuse Research, the structure of oxycodone is similar to codeine, and is almost as potent as morphine. Oxycodone works on a person’s body through the central nervous system by altering the user’s sense of pain and their emotional response to pain.                                                                                                                                                         Oxycodone is the most powerful prescription painkiller, and it is not time released, so when a person takes the drug, its onset is quick-acting and very powerful.

OxyContin

According to National Center for OxyContin is one of the most commonly known prescription painkillers that people abuse and develop addictions to. OxyContin is the same as Oxycodone, except OxyContin is time released, which means it slowly is released into a person’s system when they take the pill. This prolongs the effects of the drug.

Marijuana

According to National Cancer Institution, Cannabinoids may cause antitumor effects by various mechanisms, including induction of cell death, inhibition of cell growth, and inhibition of tumor angiogenesis invasion and metastasis[1].Two reviews summarize the molecular mechanisms of action of cannabinoids as antitumor agents. Cannabinoids appear to kill tumor cells but do not affect their nontransformed counterparts and may even protect them from cell death[2].

In 1986, an isomer of synthetic delta-9-THC in sesame oil was licensed and approved for the treatment of chemotherapy -associated nausea and vomiting under the generic name dronabinol. Clinical trials determined that dronabinol was as effective as or better than other antiemetic agents available at the time.                                                                                                                     Dronabinol was also studied for its ability to stimulate weight gain in patients with AIDS in the late 1980s. Thus, the indications were expanded to include treatment of anorexia associated with human immunodeficiency virus infection in 1992.

In a five-patient case series of inhaled Cannabis that examined analgesic effects in chronic pain, it was reported that patients who self-administered Cannabis had improved mood, improved sense of well-being, and less anxiety/ Sources(  Beal JE, Olson R, Laubenstein L, et al.: Dronabinol as a treatment for anorexia associated with weight loss in patients with AIDS. J Pain Symptom Manage 10 (2): 89-97, 1995. [PUBMED Abstract]

[1] The spread of cancer cells from the place where they first formed to another part of the body. In metastasis, cancer cells break away from the original (primary) tumor, travel through the blood or lymph system, and form a new tumor in other organs or tissues of the body. The new, metastatic tumor is the same type of cancer as the primary tumor. For example, if breast cancer spreads to the lung, the cancer cells in the lung are breast cancer cells, not lung cancer cells. The plural form of metastasis is metastases (meh-TAS-tuh-SEEZ).

[2] Jatoi A, Windschitl HE, Loprinzi CL, et al.: Dronabinol versus megestrol acetate versus combination therapy for cancer-associated anorexia: a North Central Cancer Treatment Group study. J Clin Oncol 20 (2): 567-73, 2002

People Arrested for Cannabis Law Offenses this Year

Police arrested an estimated 858,408 persons for cannabis violations in 2009. Of those charged with cannabis violations, approximately 89 percent were charged with possession only.

An American is arrested for violating cannabis laws every 30 seconds.

Source-Uniform Crime Reports, Federal Bureau of Investigation

Macklemore Struggles Against Opioid Addiction

In His New Music Video ‘Drug Dealer’

In May, he teamed up with President Obama to talk about the matter, saying “If I hadn’t gotten the help I needed when I needed it, I might not be here today. And I want to help others facing the same challenges I did.”

For Macklemore, this is more than just a music video. He wants to tackle the pharmaceutical industry head on, having struggled with addiction in real life.
Read More: Recommended

So Say The Anthem..

Almost no one seems to be aware that even if the U.S. were a perfect country today, it would be bizarre to expect American players to stand for “The Star-Spangled Banner.” Why? Because it literally celebrates the murder of African-Americans.

Few people know this because we only ever sing the first verse. But read the end of the third verse and you’ll see why “The Star-Spangled Banner” is not just a musical atrocity, it’s an intellectual and moral one, too:

No refuge could save the hireling and slave
From the terror of flight or the gloom of the grave,
And the star-spangled banner in triumph doth wave
O’er the land of the free and the home of the brave.

“The Star-Spangled Banner,” Americans hazily remember, was written by Francis Scott Key about the Battle of Fort McHenry in Baltimore during the War of 1812. But we don’t ever talk about how the War of 1812 was a war of aggression that began with an attempt by the U.S. to grab Canada from the British Empire.

However, we’d wildly overestimated the strength of the U.S. military. By the time of the Battle of Fort McHenry in 1814, the British had counterattacked and overrun Washington, D.C., setting fire to the White House.

And one of the key tactics behind the British military’s success was its active recruitment of American slaves. As a detailed 2014 article in Harper’sexplains, the orders given to the Royal Navy’s Admiral Sir George Cockburn read:

Let the landings you make be more for the protection of the desertion of the Black Population than with a view to any other advantage. … The great point to be attained is the cordial Support of the Black population. With them properly armed & backed with 20,000 British Troops, Mr. Madison will be hurled from his throne.

Whole families found their way to the ships of the British, who accepted everyone and pledged no one would be given back to their “owners.” Adult men were trained to create a regiment called the Colonial Marines, who participated in many of the most important battles, including the August 1814 raid on Washington.

Then on the night of September 13, 1814, the British bombarded Fort McHenry. Key, seeing the fort’s flag the next morning, was inspired to write the lyrics for “The Star-Spangled Banner.”

So when Key penned “No refuge could save the hireling and slave / From the terror of flight or the gloom of the grave,” he was taking great satisfaction in the death of slaves who’d freed themselves. His perspective may have been affected by the fact he owned several slaves himself.

With that in mind, think again about the next two lines: “And the star-spangled banner in triumph doth wave / O’er the land of the free and the home of the brave.”

The reality is that there were human beings fighting for freedom with incredible bravery during the War of 1812. However, “The Star-Spangled Banner” glorifies America’s “triumph” over them — and then turns that reality completely upside down, transforming their killers into the courageous freedom fighters.

After the U.S. and the British signed a peace treaty at the end of 1814, the U.S. government demanded the return of American “property,” which by that point numbered about 6,000 people. The British refused. Most of the 6,000 eventually settled in Canada, with some going to Trinidad, where their descendants are still known as “Merikins.”

Furthermore, if those leading the backlash against Kaepernick need more inspiration, they can get it from Francis Scott Key’s later life.

By 1833, Key was a district attorney for Washington, D.C. As described in a book called Snowstorm in August by former Washington Post reporter Jefferson Morley, the police were notorious thieves, frequently stealing free blacks’ possessions with impunity. One night, one of the constables tried to attack a woman who escaped and ran away — until she fell off a bridge across the Potomac and drowned.

“There is neither mercy nor justice for colored people in this district,” an abolitionist paper wrote. “No fuss or stir was made about it. She was got out of the river, and was buried, and there the matter ended.”

Key was furious and indicted the newspaper for intending “to injure, oppress, aggrieve & vilify the good name, fame, credit & reputation of the Magistrates & constables of Washington County.”

You can decide for yourself whether there’s some connection between what happened 200 years ago and what Colin Kaepernick is angry about today. Maybe it’s all ancient, meaningless history. Or maybe it’s not, and Kaepernick is right, and we really need a new national anthem.

Credit to;

Jon Schwarz