Robin Winkler's office flipped me this translation of a piece from the Liberty Times, an interview with Robin Winkler on the Green Card issue. Most foreigners don't get the whole green card thing, especially in Taipei, where there is widespread dismissal of any possibility of its effectiveness. Yes, and they tell me Ma is winning by 26 points in the polls too....++++++++++++++++++
The following translation is an account of an interview with Robin Winkler, a naturalized Taiwanese citizen and former EPA commissioner. The Chinese original appeared in the March 18th edition of the Liberty Times. [Explanatory notes in square brackets].
Attorney Robin J. Winkler said yesterday that based on the US State Department's Foreign Affairs Manual, travel to the US on a non-immigrant visa does not necessarily mean that one has abandoned lawful permanent residence status. Winkler, a naturalized Taiwanese citizen, said that he did not want to see a president elected who could run off to the US at any time. He argued that to show respect to voters, Ma Ying-jiu has a duty as a candidate to produce evidence that he has abandoned his lawful permanent residence status and should not play semantic games.
Winkler said it was incorrect to argue that a US lawful permanent resident loses that status automatically after leaving the US for a few years. [The US Department of Homeland Security takes the position that residency has been abandoned when an LPR is out of the US continuously for more than one year. 8 CFR § 211.1(a)(2). Ma has cited this regulation as proof that his LPR status has been abandoned. However the courts and the Board of Immigration Appeals have consistently taken the view that intent to relinquish permanent residency is the standard, not the length of time that the LPR has been out of the country. For example, in Hana v. Gonzales, 400 F.3d 472 (9th Cir. 2005) an LPR had permanent job, real property, and immediate family in Iraq and never worked, paid taxes, or procured a bank account or driver’s license in the US, and was absent for the vast majority of four years, but her trip was nevertheless determined to be temporary in nature because her failure to put down roots was due to her desire to help her family safely flee Iraq and to take care of her terminally ill mother-in-law and her return was fixed by an early event – the safe emigration of her family from Iraq to the US. Based on this reasoning, the court determined that the LPR had not abandoned her LPR status despite having been out of the US for more than one year. ] According to US immigration law, there must be an expression of fixed intent to abandoned permanent residency. For this reason, Ma needs to fill out the I-407 form. He cannot just say that he has abandoned LPR status.
Moreover, it is also incorrect to claim that because Ma has been issued B1/B2 non-immigrant visas or used this visa, his green card has expired. Volume 9 of the US Foreign Affairs Manual states that consular officers may, at their discretion, issue non-immigrant visas [such as B1/B2 visas] to applicants with LPR status if the applicant needs one. Consular officers may not refuse to issue a non-immigrant visa solely because the applicant has LPR status, nor can consular officers require a visa applicant to relinquish her green card as a condition to issuing a non-immigrant visa. Consular officers [who work for the State Department] do not have the authority to determine whether a person has lawful permanent residence. The US Citizenship and Immigration Services (USCIS) [an agency under the Department of Homeland Security] reserves this authority to itself.
Winkler emphasized the importance of citizen participation in democracy. A candidate who is faced with questions from voters should use all possible subjective and objective means to make the people understand. This is a duty. Ma said [last week after Winkler and another lawyer placed an ad in the China Times saying that Ma's permanent residency was still valid] that Winkler was an environmentalist, not an expert on immigration law. Winkler said that this means that if you are not an expert recognized by Ma, you have no right to speak. Or that as long as Ma knows, others don't need to know. For Winkler, Ma's comments were from another era and represent exclusionary, elitist thinking. If he becomes Taiwan's president, said Winkler, people can think about what kind of example is being set.
Winkler also said that many people were concerned about whether Ma is a US permanent resident who could leave Taiwan for another country at any time. The real issue though, said Winkler, is why Ma won't let everyone know the truth. Proving that Ma does not have lawful permanent residence status is simple--sign a power of attorney and have a respected third party apply to the US government for proof that he has abandoned LPR status. That person can go to the USCIS and copy the information he needs. Access can be applied for today and received tomorrow. Now would be good time. It would stop this waste of social resources and be more environmentally friendly. Is this so hard for Ma?
[Taiwan]
8 comments:
Wait, what?!? Robin Winkler was the former EPA commissioner for all of Taiwan? When was this?
I thought Hoon Ting (雲程)’s "Of Exile And Green Card" ( 流亡與綠卡) in yesterday, March 18 Liberty Time opinion page, dove-tailed nicely with Robin’s article. Original available at:
www.libertytimes.com.tw/2008/new/mar/18/today-o3.htm
And at Hoon Ting (雲程)’s blog, 雲程的雙魚鏡
http://tw.myblog.yahoo.com/hoon-ting/article?mid=6220&prev=6221&next=6199&sc=1#yartcmt
Hoon Ting writes :
"Kuomintang cadre such as Ma Yingjiu, Li Qingan, Zhou Hsi Wei, Hao Lungpin, etc (and many performers), all are Americans or quasi-Americans. This phenomenon reveals the collective panic of the “stateless”. It stems from the undecided status of Taiwan, and furthermore from the distorted notion common to all Taiwanese in regard of the "Generalissimo Chiang Kai-Shek’s occupation" and the "exiled R O C" administrative construct.
Occupation is clear, it is the allied armies' temporary military rule at the end of the war - Taiwan is a territory waiting for confirmation of its status, it certainly does not belong to China. Exile also is clear – basically, the ROC government has no claim to territorial soveriegnty. He Sensung said that, "The failed Chiang Kai-Shek government, with more than 1 million soldiers and civilians in tow, ‘were allowed’ to seek asylum on Taiwan." Thus confirming that rather than an independent "domestic transfer of the seat of government", the R O C seeking asylum on Taiwan was a "US-approved exile overseas" .
Taiwan does not belong to China, but from 1949 onward, one million Chinese soldiers and civilians actually lived together with the Taiwanese people on the same island. Only, the former’s Chinese nationality was never questioned, whereas the end of the war caused the Taiwanese people – originally Japanese nationals – a dislocation, nationality-wise.
Therefore, the international community sought to stipulate through the Taipei Treaty that “Republic of China national” should be construed as including the Taiwanese people. When in 1972 Japan and China normalized their relations, the Taipei treaty – the basis for the Taiwanese’s R O C nationality – was abolished. The question of the Taiwanese’s nationality, however, was never revisited.
Conversely, for the million or so soldiers and civilians who never experienced nationality change, the higher their social status, the closer to the core, the more eager they were to run for "another nationality" (passport or green card). They could apply for a long holiday in the US (or Hong Kong, other) to endure the pains of the immigration process.
Why would they panic so much, holding the "Republic of China" in such distrust, while the Taiwanese – whose nationality was unsettled – did not pay attention?
Abroad, the fact that Taiwan was not Chinese territory allowed the million or so soldiers and civilians to identify as "refugees", whereupon they sought another nationality in order to protect themselves. Domestically, in addition to martial law, education and the deception of the media, they excluded the Taiwanese from the diplomatic corps, hiding their most deep-seated panic of the uprooted. In light of the above, Taiwan's ruler and ruled stood on entirely different plans.
Three generations of the Ma family and so-called "golden boys" all enjoy "another nationality"; Discussing economy rather than sovereignty, in the hope of fudging the nationality topic, stems from this kind of deep-seated panic of the uprooted.
Regardless of their "occupation agency" or "allowed exile", R O C does not retain legal territorial sovereignty over Taiwan. A principal occupier (U S or U N) is standing above it, holding the territory in trust. Taiwan has always been ruled by the "the green card gang". Speaking of the US Constitution, its significance for Taiwan is in an interim status of "unincorporated territory” under US rule. And that has never changed since 1945. The US never relinquished its constitutional duties. (The author researches the Taiwan question) "
Trace, I can't put up comments in which you threaten the life of presidential candidates! Use some common sense!
Michael
For all the talk, can you imagine Ma pulling a Wang Yeou-tseng? I quite don't see it.
Does it reveal lack of roots? Not really. As I said before, too many Taiwanese hold a card as "safety net". Does it revela distrust in Taiwan? Yeah, but then we all here on this island hve a Damocles sword over our heads.
I believe this green card issue is a "non-issue", and that there are more better and important things to focus. Is Ma lying? In high probability, yes, but then he does it most of teh time. What's new? I agree with Michael in that Ma does not handle the pressure. Now that's something to worry about.
A better PR strategy for the green would have been to leave this green card issue alone and pull the many rabbits that lie like skeletons in the closet -if they exist. Many blows work better than a single one. Think voodoo strategy.
This green card thing is far from important. A non-issue that the green party has really tried to dig up in lieu of having any real progressive things to talk about. There is a really pathetic push right now by the green party (see today's news about Hsie's press conference regarding the KMT buying votes. He actually announced, in front of TV cameras, that the KMT are going to buy votes this weekend. He conceded that there is no evidence, and the crime hasn't been committed yet, but IT"S GOING TO HAPPEN! Oh, the hilarity of desperate politics.).
The KMT shouldn't try to bring anything to the table about the green card thing, because it doesn't mean a damn thing. Let's all act like Hsie doesn't have any possibility of running off to Japan. What does it matter?
The facts are clear; if Ma really wanted to renew his Permanent Residency status, he could probably do it, but according to US law her would have to start all over. He is WAY passed the window of time that allows him to get on a plane and walk into the US as a permanent resident. Any lawyer with his head up his ass could tell you that. To keep his status as a PR, he has to establish PERMANENT RESIDENCY in the US. At this point, MR. Hsie has the exact same opportunity to be granted residnecy; just go over to the US and live there, and get some paperwork done. This is not complicated.
According to US immigration law, there must be an expression of fixed intent to abandoned permanent residency.
Fill out the form is only "one" way of expression of the intent.
Living outside US for a long period of time, and paying tax to the base country, working outside US can also be an expression of fixed intent to abandoned the PR. Because Ma showed no intention to live in US permenantely, and the purpose of Ma's leaving US is not a "temporary visit[s] abroad".
The green card issue was the ethnicity card in disguise, and voters saw through it. For the Hsieh camp to raise it was a measure of their desperation. I'm amazed that so many Americans living in Taiwan went for it.
The odd thing is that this got as much attention as it did. Most Americans here in Taiwan whose Taiwanese spouses lived in the U.S. with green card and permanent residency status know the drill and can see that the "filling out the form" argument is a bunch of hot air from someone who perhaps has other areas of knowledge and expertise but who apparently has no clue on the actual functioning of U.S. immigration law or practices. Just saying here that this political gambit might have some weight with some people, but those of us who have had to spend time down at AIT with Taiwanese spouses w/ green cards in their past see this a bit differently and with perhaps a much clearer view of what really happens.
All these permits are of limited duration -- the expiration is placed clearly on the documents, and the failure to adhere to the proper requirements for holding onto green card or permanent residency status is something that is checked upon rather easily in this age of computers and computerized immigration records. Add in the fact that there's a visa in the holder's passport that also expires as well.
While there are rather extreme examples of persons who had no intention of giving up their U.S. residency and green-card status nevertheless ending up outside the U.S. territory for long periods of time, it is very much an uphill battle to overcome the assumption that they've given up their status. The case Winkler cites (Hana v. Gonzales) had to go all the way up to the appellate-level federal circuit court and included a very unique set of supporting facts involving person going to Iraq and trying to rescue family members not replicated at all in the Ma Ying-jeou situation. A few other rare situations have occurred where an foreigner with U.S. residency then gets a temporary posting outside the U.S.-- a factor that happens with many global companies.
Far more common is the situation faced by many former U.S. permanent residents. They find themselves living back home in Taiwan or elsewhere with no U.S. address, job or other ties. Their U.S. visa runs out, so they go down to AIT and apply for a visa that reflects their actual status as a tourist or business visitor to the United States. The AIT officer will, often enough, ask them about their previous residency status during the interview -- and then the new (non-residential) visa and passport will normally arrive within a short period of time. A "fresh" permanent residency card and green card are not delivered.
In the end, does any of this really matter? If the PRC were to invade, would an American "green card" really be necessary for any major Taiwanese politician of any party to seek refuge in any one of dozens of countries that have consistently hosted PRC dissidents? So the whole notion that a "green card" makes it easier for Ma to flee in case of some disaster seems a bit ridiculous when you figure Lee Teng-hui, Chen Shui-bian and Frank Hsieh would also be fully capable of scampering to the U.S. as well.
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