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

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

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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

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.

solidarity
Textbooksetrade.wordpress.com (C)

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;

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 [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.