Last week I wrote about the case of Tareq Abufayad. The 9^th Circuit Court of Appeals allowed him to be removed from the United States because an FBI expert concluded he would become a terrorist in the future. I tried to read between the lines as to the “rest of the story” and invited readers to let me know whether I got it wrong or right. Since the posting, I had communication with people “in the know” and reviewed media reports that were written after the Ninth Circuit’s decision. This information confirmed to me that my extrapolations and interpolations were correct. Today I would like to discuss the “end game” a little more. (more…)

Sometimes when a court issues a decision, its rendition of the facts helps reinforce the decision it makes. What the court stresses and the order it presents the facts suggests the conclusions that will follow. Often, you can tell the outcome of a case just by reading the court’s statement of the facts. A different court will choose and arrange the facts a different way and come to a different conclusion. A new case out of the Ninth Circuit published on February 16, 2011, Abufayad v. Holder is a good example. Read the facts of the case as the court presents them and you have the following:

1. Abufayad was born in Saudi Arabia, lived in Gaza from age 6 to 19, went to attend university in the West Bank and, later, Egypt.

2. His father and five siblings are U.S. residents or permanent residents. Abufayad obtained an IR-2 immigrant visa to move from Egypt to move from Egypt to the United States with his father’s sponsorship in January of 2007.

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The way U.S. citizenship law works is that being born here usually makes one a citizen. As the Fourteenth Amendment stated, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This was a change from Article I, Section 2, of the Constitution, which states, “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.” People who are not subject to the jurisdiction of the United States include diplomats who have diplomatic immunity and thus their children, if born in the United States, are not United States citizens, as was decided by the Supreme Court in 1898.  It is important to note that not all foreigners in the United States working for foreign governments have diplomatic immunity. You can tell the ones who do as they are the ones who double park.  (more…)

I wrote before about my Egyptian friend, Abdulrahim Kewan, on October 17, 2010, “The Never-Ending Wait for a Visa.”  I recounted the legal travails of Mr. Kewan whose efforts to become a permanent resident of the Unite States, which he came to in 1996, turned sour when he made the fateful decision to ask for directions from gate guards at Camp Pendleton when we got lost driving in October 2002. As the old posting and newspaper reports discuss, he was ordered removed from the United States despite having an approved visa petition as a battered spouse. (more…)