The first challenge to obtaining a waiver, or ascertaining the best way to overcome denial of entry into the United States is figuring out what information the U.S government has on you. The U.S. has a lot of information publicly available such as from here https://www.dhs.gov/foia-library and look here https://www.uscis.gov/records/electronic-reading-room.  However, you also want to know what does the government have on you.  The U.S government has many reasons to deny access to information, so figuring this out early can help you prepare the necessary documents.  If you want to read the FOIA statute , it is here https://www.justice.gov/oip/freedom-information-act-5-usc-552

To do this, the U.S. even has a video you can watch at to make at https://www.foia.gov/how-to.html. Or look here, https://www.dhs.gov/steps-file-foia. With a FOIA request, you can access your own immigration records, someone else’s immigration records (if you have their written permission), and agency policies, data, communications, and other records. [CS1] 

Where to Make the Request:

You can make a FOIA request to over 100 government agencies, including the United States Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and/or the Department of Justice. There are many agencies and departments inside of each agency and ascertaining the correct place, and source of the information sought will streamline your FOIA request.  For example, the libraries maintained by the DHS Privacy Office may lead to what you need, see  https://www.dhs.gov/dhs-component-foia-logs A FOIA request may be done either in person or on the organization’s website.

How to Make the Request:

After ensuring the records are not publicly available[CS2] , you may begin the request. Do not delay your appeal, try to do so within 90 days after an adverse determination to file your appeal.  No specific form is needed to make the request. Rather, you must make a written request that reasonably describes the kind of records you are looking for. [CS3] A common hurdle is ascertaining where to make the request, and using the correct “governmental” description for where the document is and what they may call it.  This site may help  https://www.dhs.gov/system-records-notices-sorns

This request should include your name, contact information (street or email address), and a brief description of records sought. If you are seeking records that contain personal information about yourself, provide a perjury statement and signature or notary. If you are seeking records that include personal information of a third party, you may receive greater access by providing a third party release statement.[CS4] 

A FOIA request can be made for any agency record. You can also specify the format in which you wish to receive the records (for example, printed or electronic form). The FOIA does not require agencies to create new records or to conduct research, analyze data, or answer questions when responding to requests.[CS5]  To get the most out of your request, try to be as precise as possible. A  sample letter is available from the Federal Trade Commission. The government has “twenty working days” to respond, but can take longer.

After Submitting the FOIA Request[CS6] :

A majority of the time, the government agency responds to your initial FOIA request by saying no records found. Do not assume that is the end of the line.  Don’t worry, the government keeps everything, they just may forget where it is until you remind them or they want to use it against you.  Filing an appeal or dispute is the best way to ensure you have all possible information. There are several reasons as to why you may wish to file an appeal.

For an administrative appeal, write a letter addressing why you believe the FOIA exemption(s) cited do not apply to the records you requested, or give reasons why they should be released regardless of whether the exemption(s) apply.[CS7]  Including a description of why you need the records may strengthen your appeal. Numerous government agencies have example administrative appeal templates, including the Federal Trade Commission. Send this appeal to the USCIS FOIA/PA Appeals Office with the envelope clearly marked as “Freedom of Information Act Appeal”.[CS8]  You have a minimum of 90 days to submit an appeal, with the exact deadline listed on your denial letter[CS9] . To address concerns with your request, you can visit the website of the Office of Government Information Services (OGIS).

It is common that an appeal after a “nothing is found” FOIA results in finding your information.  The information may be redacted, but it is much easier for your immigration lawyer to have a hint what is there to find a solution.  Also, the government provides a lot of free information you can use. You can obtain an insight into the process of FOIA appeals here,  https://www.justice.gov/oip/oip-guidance/Adjudicating%20Administrative%20Appeals%20Under%20the%20FOIA

The Office of Information Policy has this resource on how government organizations must/should write about FOIA request. Helpful hints, and language to use is on the Department of Justice website, look: https://www.justice.gov/oip/template-agency-foia-regulations

Do not stop until you obtain your information. 


 

June 8, 2023, the Saskatchewan Court of the King’s Bench, held an emoji can express a contractual agreement between parties. See  South West Terminal Ltd. V Achter Land

Once you learn the facts, it is not an outlier case. In  South West Terminal Ltd. V Achter Land, involving the sale of farm supplies, the parties established practice where they communicated acceptance of their contracts through text messages and phone calls. On at least three occasions they exchanged messages of “looks good”, “ok” or “yup” and would then proceed to fulfil the contract. On the incident that led to the case the Achter representative responded with a 👍” emoji. The other party relied on the 👍but failed to perform.

The Court concluded that the thumbs-up emoji had met the signature requirements of acceptance, and an $82,000.00 obligation. The Court relying upon Dictionary.com, found the definition of the thumbs-up emoji is generally thought to be of approval or acceptance. More importantly, the Court relied on the past contractual relationships informal conduct of the parties. Thus, for them, the thumbs up was acceptance. I wonder if LOL will one day be deemed an insult? I am more concerned about the use of 💩.

In a writ of mandate from a Los Angeles Superior Court case, the court clarified that a Code of Civil Procedure §2031.210, a statement of compliance (the written response) for a document demand does NOT to identify the specific request and document to which each document will pertain. Nor does the document response portion need to be verified. (The Response needs to be verified unless is all objections.) See http://sos.metnews.com/sos.cgi?0823//B321229

The responding party only needs to identify the demand category (e.g., Demand No. 2, 3) as it pertains to the documents being produced, e.g., by Bates number.

Sharp v. S&S ACTIVEWEAR Music June 7, 2023, D.C. No. 3:20-cv-00654-
MMD-CLB See: Sharp v S&S

Constantly playing music in the workplace with sexually derogatory or violent content, can create a hostile or abusive environment and constituting discrimination because of sex. Harassment, whether by sound, or visual, does not need to be directly targeted at a particular person to pollute a workplace and create a Title VII claim. Nor is it a defense that the music offends many types of protected classes it prevents a Title VII claim.

Using commercial grade speakers, the defendant blasted songs’ which denigrated women and used offensive terms like “hos” and “bitches.” Songs like “Blowjob Betty” by Too $hort contained “very offensive” lyrics that “glorifie[d] prostitution.” Likewise, “Stan” by Eminem described extreme violence against women, detailing a pregnant woman being stuffed into a car trunk and driven into water to be drowned.

Employees sometimes mounted speakers on forklifts driving around blasting the music from unpredictable places. The defendant’s management defended the music as motivational and stood by its playing for nearly two years, until litigation loomed.

Persons inadmissible because they were convicted of (or admit to) engaging in prostitution (See INA §212(a)(2)(D)(i) can use the less burdensome standard for a INA § 212(h) waiver.  Technically, the applicant for a waiver only needs to show her admission is not contrary to the national welfare and has been rehabilitated.  (INA §212(h)(2)) “Hardship to a qualifying relative” does not need to be established for this waiver.

Another common error by the Government is requiring that the crime occurred more than 15 years ago to use the lower standard of INA §212(h)(1)(A).  Have your Code book handy and read the law and using your finger (not the middle) show how the lower standard applies to individuals inadmissible only under subparagraph (D)(i) or (D)(ii) “OR” 15 years ago.

The waiver application often can be obtained within a month.  But like anything, it can be less or far longer.  Non-immigrant waivers are often granted for one year but could be for up to five years.  Canadians can use a Form I-192 because they are visa exempt. This application is made with CBP (at the Admissibility Review Office), US Customs and Border Protection, at the port of entry.  Not all land borders accept these filings, check online.  See: Northern Ports of Entry Accepting I-192’s The US Consulate in Ottawa also can help.  CBP Instructions for filing waivers.  The submission can be submitted electronically.  See Portal to Submit for Waiver

 

In SIRY INVESTMENT, L.P. v. FARKHONDEHPOUR, the Supreme Court resolved a conflict in lower courts by ruling that treble damages and attorney’s fees pursuant to section 496(c) are recoverable in theft-related business tort cases.  The Court found it applies so treble damages and attorney’s fees can be awarded in a case concerning “fraudulent diversion of partnership funds.”  The Court also allowed a preponderance of the evidence proof, not clear and convincing. The plaintiff still must prove a knowing “theft”, but this will be the next new business tort remedy!

SIRY INVESTMENT, L.P. v. FARKHONDEHPOUR S262081

 

Lawyers tend to overlook the simple truth about the four elements “fair use doctrine” under 17 U.S.C. § 107 stretching arguments far beyond common sense.  A recent case clearly sets out the commonsense aspect of “fair use”.  In MCGUCKEN V. PUB OCEAN LTD. plaintiff’s slightly cropped photographs of a lake were posted without seeking or receiving a license.  The court held that did NOT invoke a fair use defense to the plaintiff’s copyright infringement claim where the defendant’s use was for commercial purposes, and it was not transformative because it used the photos, with only negligible cropping, for exactly the purpose for which they were taken– to depict the lake.

The bottom line as noted by the court was “In defining and identifying that creativity, a court considers whether the copying use is transformative, meaning that it adds something new and important.”  The key is what is “transformative” — cropping, or adding a caption is not going to be transformative!  The commonsense approach courts take on this issue is clear, “the
article used the photos for exactly the purpose for which they were taken: to depict the lake.”  

McGucken v. Pub Ocean Fair Use Explained 21-55854

The oral arguments are here!  McGucken v. Pub Ocean — Oral Arguments

Note: Is the image on this post copied from the internet without an indication of a copyright “fair use” assuming it was copyrighted under Federal law?    Let me know what you think.

A trial court that granted a defendant’s petition to compel arbitration has jurisdiction to lift the stay of trial court proceedings where a plaintiff demonstrates financial inability to pay the anticipated arbitration costs; in such a situation, the court may require the defendant either to pay the plaintiff’s share of arbitration costs or to waive the right to arbitration. Plaintiff filed a peremptory writ of mandate was filed, it is rare that the appellate court even hears these writs.  See Aronow v. Superior Court (Emergent) March 28, 2022

We have recently seen that the right to contract, may not mean much in various situations.  White are are other cases concerning inability to pay the arbitration fees, e.g. Weiler v. Marcus
& Millichap Real Estate Investment Services, Inc. (2018) 22 Cal.App.5th 970.  I guess now it is possible for a party to get free cake eat it too!

P.S. the facts ALWAYS MATTER!  The Aronow case was about A plaintiff suing his lawyers for malpractice, and the Weiler was a poor elderly lady ripped off by a huge brokerage.

The law provides in part that a minor’s “willful misconduct” causing injury or death to another, or damage to the property of another, “shall be imputed to the parent or guardian having custody and control of the minor” for civil liability purposes. (Civil Code §1714.1, et seq. as well as under the Education Code § 48904(a)) The law also provides for damages for mental distress caused by bullying.

Your school district may have additional policies.  For example, the Los Angeles Unified School District has an Anti-bullying Policy, LAUSD Anti-Bullying Policy Page as well as children’s rights under Article 1, Section 28(c) of the California State Constitution and the relevant portions of the California Education Code 32270, et seq. which should be reviewed.

Brewer v. Patel (1993) 20 Cal.App.4th 1017 made it clear that “on call” or “stand-by” time or waiting time is not compensable to property managers when they are waiting for a plumber or prospective renter to show up.  Brewer v. Patel concerned a motel employee who was required to live on the premises, but only worked about 5 hours a day.  Other cases to look at are Isner v. Falkenberg (2008) 164 Cal.App. 4th 1393 (wage order as applied to employee who lived on the premises for a nursing home) and Van Nothdurft v. Streck (2014) 227 Cal.App. 4th 524 (apartment manager who also had free rent and  Wage Order No. 5–2001).

While most employee competent employee oriented attorney’s know the law, some don’t.  So rather than sending a letter, I am going to start referring them to my website!