12 Sep Can a granted Amnesty be declared null and void?
By Atty. Crispin Caday Lozano
Q. What is Amnesty?
A. Amnesty as legally defined is the action of a government by which all persons or certain groups of persons who have committed a criminal offense—usually of a political nature that threatens the sovereignty of the government (such as Sedition or treason)—are granted Immunity from prosecution.
Q. How is amnesty granted?
A. In the U.S. the legislature enacted a law and the President approved the Reagan amnesty of illegal immigrants. In the Philippines, the same procedure applies for the granting of Amnesty.
Q. Can a granted Amnesty be declared Null and Void?
A. Amnesty is considered final once approved and granted. No historical precedent or event that a granted Amnesty has been declared null and void. Hence for those who benefited from the Reagan Amnesty and the Sec. 245(i) amnesty allowing certain groups of immigrants to adjust status despite some immigration violations cannot be declared null and void by any president.
Q. In the Philippines, what should be the defenses of Senator Trillanes when his Amnesty grant has been declared null and void?
A. The usual defense is the doctrine of “res judicata” which means a decision by a proper court on certain issue or charge cannot be brought again against that person for litigation or prosecution. This will result in double jeopardy which is unconstitutional.
Q. In the Philippines, is the president authorized to declare null and void unilaterally an Amnesty granted or existing Treaty?
A. This power is not written in the Constitution. Whatever power that is not enumerated are deemed not authorized. Moreover, when the Constitution states that the concurrence of Congress is needed, any declaration of null and void amnesty or treaty should also be concurred by Congress. For example, the ICC withdrawal should be concurred by Congress.
Q. When there is an encroachment of power by one branch of government over another, what happens?
A. Under the doctrine of separation of powers, when the executive branch encroach on the power of the Legislative branch, the Court will decide the proper procedure. In the case of the withdrawal from ICC, the court is the proper branch to decide legality. In the case of voiding of Amnesty, again the Court will decide the proper procedure.
Q. Can the military arrest Trillanes without a warrant?
A. No, Sen. Trillanes is a civilian and he cannot be arrested without a warrant because it will be unconstitutional. A warrant must be obtained from a court based on a criminal case for the police to arrest Sen. Trillanes.
Q. Why was Chief Justice Sereno ousted without impeachment?
A. The Supreme Court did not follow the proper procedure to remove a sitting government official subject to impeachment under the constitution.
Q. Why was CJ Sereno ousted by Quo Warranto? Did the government meet the Burden of Proof to remove her?
A. Even if the Quo Warranto is not the right way to remove CJ Sereno, the government must meet the burden of proof that she did not file her SALN. In litigation, whoever party that make a claim or charge has the burden of proving the authenticity of the claim or charge. Here, CJ Sereno could have won if her attorney insisted that the burden of proof is on the government that they have no records by clear and convincing evidence. The government should lose the case if they cannot meet their burden. It should not be CJ Sereno giving the court all the evidence needed to prove the charge against her. A party who has not meet its burden should lose the case. In this case the government has not met it burden but won the case which is unusual.
Note: This is for information purposes only and not a legal advice.
- For the month of August 2018, we received an approval of four Naturalization applications and five adjustment of status applications.
- On July 27, 2018, we received an approval for permanent resident for a client who was abused by her spouse under VAWA.
- For the months of May to June 2018, we have received four Naturalization applications approvals and two Adjustment of Status approvals
- On April 18, 2018, we received a grant of waiver from Immigration Court for a husband and wife client who made a misrepresentation of their marital status but has no criminal records, has long residence and strong family ties in the U.S.
- On April 12, 2018, the Immigration Judge in San Francisco approved a waiver of misrepresentation in applying for a visa for our client who has been in the U.S. for 26 years, no criminal record and strong family ties in the U.S.
- On April 3, 2018, we received an approval from USCIS for a U visa for a client who was a victim of crime.
- For the month ending March 31, 2018, we received approvals for four naturalization applications.
- For the week ending March 31, 2018, we received approvals of six Adjustment of Status, two Application to Remove Condition on Residence and two Renewal of Green Card approvals.
- On March 9, 2018, we received an approval from USCIS for adjustment of status for a client who was abused by her spouse. The I-601 waiver was approved based on extreme hardship.
- On February 15, 2018, we received a grant from Immigration Judge for a waiver of misrepresentation for a client who has been in the U.S. for long period of time.
If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem gets worse which could lead to deportation and family separation.
Crispin Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers. His contact phone is 1-877-456-9266, email: email@example.com