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< Back to current issue of Immigration Daily

ILW.COM July 2009 Citations

by Rodney Malpert, Rami Fakhoury, Greg Siskind, Lawrence F. Johnson, Paula Singer, Lynn Shotwell, David L. Cleveland, and Jeff Joseph

Editor's note: We share the citations from all July 2009 ILW.COM seminars.

Citations for ILW.COM's Seminar Business Immigration Law

From Amanda Petersen

From Rodney Malpert

From Rodney Malpert

From Romulo E. Guevara



Citations for ILW.COM's Seminar Consular Processing For Experts

From Rami Fakhoury



Citations for ILW.COM's Seminar Employer Sanctions For Beginners

From Roger Tsai

Citation 1
Please see ICE/CIS E-Verify Compliance MOA

Citation 2
Please also see Compliance Monitoring Regulation here.

Citation 3
"A rebuttable presumption is established by §402(b) of IIRAIRA that the employer has not violated §274A(a)(1)(A) of the INA with respect to the hiring of any individual if it obtains confirmation of the identity and employment eligibility of the individual in compliance with the terms and conditions of E-Verify."

Completion of the I-9 form raises a rebuttable presumption that the employer has not knowingly hired an unauthorized alien, but the government may rebut the presumption by offering proof that the documents did not appear genuine on their face, the verification was pretextual, or that the employer colluded with the employee in falsifying the documents. United States v. Walden Station, Inc., 8 OCAHO 1053, OCAHO Case No. 99A00040 (Apr. 21, 2000); INA §274A(b)(6)(A).



Citations for ILW.COM's Seminar Citizenship for Beginners

From David Isaacson

STATUTES
INA § 301(a)
INA § 101(a)(38)
INA § 301(f)
INA § 320
INA § 101(b)(1)
INA § 101(c)(1)
INA § 322
8 USC 212(a)(6)(C)(ii)(II)
8 USC § 212(a)(10)(D)(ii)
8 USC § 237(a)(3)(D)(ii)
8 USC § 237(a)(6)(B)

REGULATIONS
8 C.F.R. § 320.1
8 CFR § 101.3

BIA CASES
Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009)
Matter of Cantu, 17 I&N Dec. 190 (BIA 1978, A.G. 1978)
Matter of M--, 3 I&N Dec. 850 (BIA 1950)

FEDERAL CASES
Bagot v. Ashcroft, 398 F.3d 252 (3d Cir. 2005)
Scales v. INS, 232 F.3d 1159 (9th Cir. 2000)
Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005)

From Joren Lyons

CITATION
Definition of good moral character, please see here.
Regulatory authority for good moral character determinations:
8 CFR 316.10
One-year period of good moral character needed for certain military veterans:
8 CFR 329.2(d)

From Saher J. Macarius

Citation: Lagandaon v. Ashcroft, 383 F.3d 983 (9th Cir. 2004), this case recognizes that part of the day is a day. It was related to a cancellation of claim; however, the language is great for calculating physical presence as well.



Citations for ILW.COM's Seminar US Tax Compliance

From Lowell G. Hancock

The federal tax residency rules are contained in (USC Title 26) Internal Revenue Code section 7701(b), and the Treasury Regulations thereunder (26 CFR 301.7701(b)-0, et seq).

The FICA tax exemption for individuals in F-1, J-1, M-1, Q-1, and Q-2 nonimmigrant status is contained in USC Title 26 Internal Revenue Code section 3121(b)(19), and the Treasury Regulations thereunder (26 CFR 31.3121(b)(19)-1) .

The complete texts of the U.S. income tax treaties may be viewed at:

IRS Tax Treaty Page
http://www.irs.gov/businesses/international/article/0,,id=96739,00.html

Treasury Tax Treaty Page
http://www.ustreas.gov/offices/tax-policy/treaties.shtml

Library of Congress Treaty Page
http://thomas.loc.gov/home/treaties/treaties.html

From Lowell G. Hancock

CITATIONS
The Five Basic Withholding and Reporting Regimes Under U.S. Tax Law

References to the IRC are to the Internal Revenue Code (Title 26 U.S. Code)

References to the Treasury Regulations are to 26 CFR

  • Reporting/Withholding on U.S. Persons (Form 1099 Reporting-IRC Chapter 61)
  • Reporting/Withholding on Foreign Persons Under IRC Chapter 3
  • Backup Reporting/Withholding (pertains only to U.S. Persons)-IRC 3406
  • Wage Reporting/Withholding (pertains to both U.S. & Foreign Persons)-IRC Chapters 21,23,24.
  • Pension Reporting/Withholding (pertains to both U.S. & Foreign Persons)-IRC Chapters 3, 24.
IRC 1441/1442 Withholding on Payments to Foreign Persons

Treas.Reg. 1.1461-1 Reporting Requirements for Forms 1042 / 1042-S

IRC 3401/3404 Withholding Federal Income Tax on Wages

IRC 3405 Special Rules for Withholding on Pensions/Annuities

IRC 3406 Backup Withholding in Cases in Which the Payee Has Failed to Provide His TIN (Taxpayer Identification Number)

IRC 3101-3128 Withholding Social Security / Medicare (FICA) Taxes on Wages

IRC 3301-3311 Employer Liability for U.S. Federal Unemployment (FUTA) Tax on Wages

RELEVANT IRS PUBLICATIONS

  • Pub 15, Circular E, Employer's Tax Guide (rev. 01.2009)
  • Pub 15-T New Wage Withholding and Advance Earned Income Credit Payment Tables (rev. 03.2009)
  • Pub 515 Withholding Tax on Nonresident Aliens and Foreign Entities
  • Pub 519 U.S. Tax Guide for Aliens
  • Pub 901 U.S. Tax Treaties

REFERENCES TO THE IRS WEBSITE

Home Page
www.irs.gov

International Taxpayer
http://www.irs.gov/businesses/small/international/index.html

Tax Withholding on Foreign Persons
http://www.irs.gov/businesses/small/international/article/0,,id=106981,00.html

Taxpayer Identification Numbers
http://www.irs.gov/businesses/small/international/article/0,,id=96696,00.html

IRS Tax Treaty Page
http://www.irs.gov/businesses/international/article/0,,id=96739,00.html

Treasury Tax Treaty Page
http://www.ustreas.gov/offices/tax-policy/treaties.shtml

Taxation of Foreign Athletes and Entertainers
http://www.irs.gov/businesses/small/international/article/0,,id=176173,00.html

Central Withholding Agreements
http://www.irs.gov/businesses/small/international/article/0,,id=106060,00.html

Ask IRS a Question
http://www.irs.gov/help/page/0,,id=133197,00.html

IRS Forms and Publications
http://www.irs.gov/formspubs/index.html



Citations for ILW.COM's Seminar The J Visa and Exchange Program

From Darra Klein

From Darra Klein

From Lynn Shotwell

From Elizabeth Quinn

  • cited to INA 214(b) (nonimmigrant intent)
  • INA 212(e) (two year foreign residence requirement associated w/ certain J-1s)
  • 22 CFR Part 62 generally ,and in particular Sec. 62.11 (re: responsibilities of Responsible Officers and Alternate Responsible Officers)

From Sandra Sheridan

From Lynn Shotwell



Citations for ILW.COM's Seminar Asylum For Experts

From David L. Cleveland

RECENT CASE LAW

Economic harm
In re T-Z-, 24 I&N Dec. 163 (BIA 2007)

"added children"
Lin v. Holder 2009 U.S. App. LEXIS 9757 [4th Cir. 5/16/09]
Zhang v. US Atty. General 2009 U.S. App. LEXIS 14126 [11th Cir. 6/30/09]

Emotional harm
Comollari v. Ashcroft 378 F.3d 694, 697 (7th Cir. 2004)
Ayele v. Holder 564 F.3d 862 (7th Cir. 2009) -do not need physical harm to win

Ostracism: Ceesay v. Mukasey 2008 U.S. App. LEXIS 17734 (2nd Cir. 2008)

"at least one central reason"
Parussimova v. Mukasey 555 F.3d 734 (9th Cir. 2009)

Khan v. Filip 554 F.3d 681 (7th Cir. 2009)
Kholyavskiy v. Mukasey 540 F.3d 555 (7th Cir. 2008)
Haxhiu v. Mukasey 519 F.3d 685 (7th Cir. 2008)

Bromfield v. Mukasey 543 F.3d 1071 (9th Cir. 2008)
Ndayshimiye v. US Attorney General 557 F.3d 124 (3rd Cir. 2009)
Rapheal v. Mukasey 533 F.3d 521 (7th Cir. 2008)

From David L. Cleveland

CASE CITATIONS

Internal relocation
Brezilien v. Holder, 565 F.3d 1163(9th Cir. May 12, 2009) IJ granted asylum. BIA reversed, saying he could be safe outside of Port-au-Prince. Is that improper fact-finding? -there is tension between D-I-M, 24 I&N Dec. 448, 451 [BIA 2008](suggesting that internal relocation is a "fact') and Matter of A-S-B-, 24 I&N Dec. 493, 497 (BIA 2008) {what may happen in the future is a legal determination]

The one-year deadline
April 9th to April 9th: Minasyan v. Mukasey, 553 F.3d 1224 (9th Cir. 2009)
Lived in Harrisburg: Oei v. Att'y Gen. 301 Fed. Appx 157 [3rd Cir. 2008]
Waited 364 days: Husyev v. Mukasey, 528 F.3d 1172 (9th Cir. 2008)

April 9th to April 9th: Minasyan v. Mukasey, 553 F.3d 1224 (9th Cir. 2009)

April 9th to April 9th: Minasyan v. Mukasey, 553 F.3d 1224 (9th Cir. 2009)

Material support
Matter of L-H- (BIA 7/10/09) Terrorists forced A to hand over a packed lunch and they took $4 from his chest pocket. Held: A did not "commit an act." Also, a lunch and $4 are not "material." They are de minimus.
[available at bibdaily.com]

Unaccompanied alien children [UAC] Memorandum dated March 25, 2009 by Joseph E. Langlois [AILA Document 090-422-30

"safe haven" has been abolished: Mamouzian v. Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004).

Negusie v. Holder 129 S. Ct. 1159 (March 3, 2009)
Diaz-Zannatta v. Holder 558 F.3d 450, 460 (6th Cir. 2009)

DHS brief dated April 13, 2009 [AILA document 090-716-64]

IJ O'Leary {Arlington VA ] [June 19, 2009] 13-page opinion
IJ Phillip Williams [Balt. MD] June 11, 2009 - 4-page opinion [this 13-year-old boy is a member of the ____ family] Bibdaily: "gang" then "abstracts" then "June 11, 09"

Carrera-Garrido v. Atty Gen 2009 us app lexis 3990 [3rd cir. 2009]
"former United States residents with children" might be a psg; remand!
-the gangs will believe I am rich; because I have children, the gangs will feel they can make me pay

January 14, 2009 decision by IJ Tsankov in Los Angeles [available at uscri.refugees.org at its "Resource Library"]
Respondents were twin sisters, age 19, from El Salvador.
Gang members said: "join us, or we will rape you or kill you."
A psg must be visible; it must be recognized by others. Its membership must be delimited.

Respondents argue they are "female members of a vulnerable family that cannot protect themselves." [pg 26]
Also, they are "attractive twins." Pg 26.
A family is a social group. [pg 27]

They did not suffer physical harm, but they were deprived on a normal childhood. They were forced to change schools, and take expensive taxis. Held: this is past persecution. [comment: S-E-G- not mentioned.]

Informants are not a psg Soriano v. Holder 2009 us app lexis 13822 [9th cir. 6/26/09]
Scatambuli v. Holder, 558 f.3d 53 (1st Cir. 2009)[R lacked social visibility; very few people in society knew he was an informant; he had no outward characteristics that would cause others to recognize him as an informant]

Gang recruitment
Marroquin-Ochoma v. Holder 2009 us app lexis 16714 [8th Cir. 7/28/09] the gang just wanted to fill its ranks; refusal to join a gang is not necessarily politically motivated

From David L. Cleveland

Country conditions
Please see Integrated Regional Information Networks

Assessments
A97-103-163 (BIA Jun 14, 2005).
Please see Removal Proceedings [last visited on July 26, 2009]
AILA document # 080-80461

Krisnawati v. us AG 2009 us app lexis 11728 [11th cir. 6/1/09]
Aboflan v. Holder 2009 us app lexis 16700 [4th cir. 7/29/09]

Federal Rules of Evidence:
Rule 607: Who may impeach
Rule 613 Prior Statements of Witnesses
613(a) "…the statement need not be shown nor its contents disclosed to the witness at that time, but on the request the same shall be shown or disclosed to opposing counsel."

Letter from Embassy in Yaounde
Amin v. Mukasey 535 F.3d 243 [4th Cir 2008]

Memorandum from
Bo Cooper, INS General Counsel, to Jeffrey Weiss, INS Director of Int'l Affairs, Confidentiality of Asylum Applications and Overseas Verification of Documents.

Application Information (June 21, 2001) ("Cooper Memo"), available at
http://judiciary.house.gov/legacy/82238.pdf at 39-45; U.S. Citizenship and Immigration Services,

Fact Sheet: Federal Regulations Protecting the Confidentiality of Asylum Applicants (June 3, 2005) ("Fact Sheet"), available at
http://www.uscis.gov/files/pressrelease/FctSheetConf061505.pdf

Secret evidence Kaur v. Holder 561 F.3d 957 (9th Cir. 2009)
8 CFR § 1240.33 (c )(4)

Emotional harm
Ayele v. Holder 564 F.3d 862 (7th Cir. 2009) -do not need physical harm to win

At least one central reason
Parussimova v. Mukasey 555 F.3d 734 (9th Cir. 2009)

Domestic violence : April 13, 2009 DHS brief AILA doc #090-716-64
"Mexican women in domestic relationships who are unable to leave" is better than "women in abusive domestic relationships who are unable to leave"

how to overcome S-E-G- 24 I&N Dec.579 (BIA 2008)
Mtr granted on 7/28/09 In re Gonzales-Mira
But see: Mendez-de Vasquez v. US Att'y General, 2009 U.S. App. LEXIS 20087 (11th Cir. 9/8/09)

Vasquez v. Holder, 2009 U.S. App. LEXIS 19034 (2nd Cir. 8/25/09)

Scatambuli v. Holder, 558 F.3d 53 (1st Cir. 2009)[R lacked social visibility; very few people in society knew he was an informant; he had no outward characteristics that would cause others to recognize him as an informant]

Gatimi v. Holder 2009 U.S. App. LEXIS 18718(7th Cir. 2009)

can you be a member of more than one psg? "dental student who dated, and then escaped" Gomez-Zuluaga v. Attorney General, 527 F.3d 330 (3rd Cir. 2008)

Duress: Negusie v. Holder 129 S. Ct. 1159 (2009)
Melendez-Diaz v. Massachusetts 129 S. Ct. 2527 (2009)



Citations for ILW.COM's Seminar Asylum For Beginners

From Ally Bolour

Razkane v. Holder 562 F.3d 1283 (10th Cir. 2008)

In re Y-T-L, 23 I & N Dec. 601, BIA 2003

In re S-A-K and H-A-H, 24 I&N Dec. 464 (BIA 2008)

Toure v Ashcroft, 400 F3d 44 (1st Cir. 2005)

Bah v Mukasey, 281 Fed Appx 26 (2nd Cir. 2008)

Moshud v Blackman, 68 Fed Appx 328, 2003 WL 21404334 (3rd Cir June 18, 2003)

In re A-T, 24 I & N Dec. 296 (BIA 2007) aka Traore v Mukasy, No. 07-2080 (4th Cir filed Nov 1, 2007)

Niang v Gonzales, 492 F3d 505 (4th Cir 2007)

Abay v Ashcroft, 368 F3d 634 (6th Cir 2004)

Agbor v Gonzales, 487 F3d 499 (7th Cir 2007)

Hassan v Gonzales, 484 F3d 513 (8th Cir 2007)

Mohammed v Gonzales, 400 F.3d 785 (9th Cir. 2005)

Niang v Gonzales, 422 F3d 1187 (10th Cir 2005)

S-E-G, 24 I&N Dec. 579 (BIA 2008)

Rojas-Ayala v Holder, 316 Fed Appx 621 (C.A. 9, 2009)

Santos-Lemus v Mukasy, 542 F3d 738 (C.A. 9, 2008)

Donchev v Mukasy, 553 F3d 1206 (C.A. 9, 2009)

Soriano v Holder, 569 F3d 1162 (C.A. 9, 2009)


About The Author

Rodney Malpert, et al. are the speakers for Business Immigration Law. To purchase an audio CD of all 3 sessions, see here.

Rami Fakhoury, et al. are the speakers for Consular Processing For Experts. To purchase an audio CD of all 3 sessions, see here.

Greg Siskind, et al. are the speakers for Employer Sanctions For Beginners. To purchase an audio CD of all 3 sessions, see here.

Lawrence F. Johnson, et al. are the speakers for Citizenship for Beginners. To purchase an audio CD of all 3 sessions, see here.

Paula Singer, et al. are the speakers for US Tax Compliance. To purchase an audio CD of all 3 sessions, see here.

Lynn Shotwell, et al. are the speakers for The J Visa and Exchange Program. To purchase an audio CD of all 3 sessions, see here.

David L. Cleveland, et al. are the speakers for Asylum For Experts. To purchase an audio CD of all 3 sessions, see here.

Jeff Joseph, et al. are the speakers for Asylum For Beginners. To purchase an audio CD of all 3 sessions, see here.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


Immigration Daily: the news source for
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