How to Preserve your Green Card for Citizenship if you Travel abroad frequently?

Green Card Holders who travel abroad frequently must take certain measures to make sure that their Green Card in not revoked.

1. File US Tax Return – Under all circumstances, Green Card Holders must file tax returns as a U.S. Resident Alien annually with the IRS by claiming their worldwide income. This will ensure that you have not abandoned your residency. General rule of thumb is to maintain residency for at least 183 days for Tax Filing eligibility.
2. Family ties in the U.S. – If Green Card Holder  is employed abroad or has to travel overseas,  his/her immediate family members, including any spouse, children, and parents should remain in the U.S. to show strong family ties to the U.S.
3. Overseas employment - If the Green Card Holder is employed abroad, they should get a written statement from the employer mentioning employment details and period of employment. This will also help preserve the permanent residency.
4. Other - One should also maintain

• mailing address in the U.S.
• own/lease property.
• regularly renew driver’s license.
• maintain bank Accounts
• use credit/debit cards and have the statements handy
• use Advance parole/travel document to travel for extensive period over one year

If you are absent for a longer period, you should be able to demonstrate circumstances such as  taking care of a sick family member in the home country, taking care of family business abroad, liquidating overseas assets, administering the estate of a deceased relative, etc.

Filed under: Laws

Must Reads on US Asylum Process

1. In fiscal year 2007, USCIS received 25,680 affirmative asylum applications and forwarded a copy of each to DOS. DOS and USCIS have determined that the current forwarding process is not an efficient method for the agencies to identify and review cases for which DOS review would yield the most value. To address this problem, this rule permits USCIS, in its discretion, to send affirmative asylum applications to DOS in those cases where USCIS believes DOS would be likely to have information relevant to the applicant’s eligibility forasylum and withholding of removal. Generally, this would be information that is not otherwise available or confirmation of publicly available information, where such validation would be helpful to the adjudication.  Additionally, USCIS and DOS have already implemented an arrangement in which USCIS’s Asylum Division headquarters (HQASM) forwards certain applications to DRL for review and comment. USCIS requires all Asylum Offices to send specific categories of cases to HQASM for further review after the Asylum Office completes its initial interview and preliminary assessment of eligibility. HQASM reviews these cases for quality assurance purposes to ensure that eligibility standards are properly applied. In conducting the quality assurance review, an asylum officer at HQASM seeks DRL comments if the asylum officer believes that DRL could provide information specific to the applicant or the applicant’s situation. This process has proven to be a productive system by which USCIS obtains country conditions information on specific cases. USCIS and DOS intend to maintain this system, which has been in place for several years. DRL applies its country conditions expertise to asylum matters in a  variety of ways, which as a whole are referred to as DRL’s asylum function. Consistent with the regulation currently at 8 CFR  08.11(c), and as will be retained in the amended regulation, DRL responds to requests for comments on cases  pecifically brought to its attention by USCIS’s Asylum Division and by the Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) immigration judges. DRL also produces updated issue papers or “country profiles” for use in asylum adjudications, and it responds to certain DHS, U.S. Immigration and Customs Enforcement’s requests for document verification in asylum cases before EOIR. Additionally, DRL is required to provide to Congress annually Country Reports on Human Rights Practices and International Religious Freedom Reports which provide country conditions information that will continue to be useful to the adjudication of asylum applications. This rule will not alter these DRL functions. This rule also does not affect how USCIS reviews and considers these DRL published reports in asylum adjudications. USCIS will continue to review the aforementioned reports, which provide country conditions information useful to the adjudication of asylum applications. Finally, this rule is limited to 8 CFR 208.11. This rule only addresses submissions of affirmative asylum applications from USCIS to DOS. It does not make any amendments to 8 CFR 1208.11, which governs the defensive application procedure for asylum applications filed by individuals in removal proceedings before EOIR. http://edocket.access.gpo.gov/2009/E9-7051.htm
2. An individual in the United States who meets the definition of a refugee may be granted asylum. The following are bars to a grant of asylum: 1. Persecution of others on account of a protected characteristic 2. Conviction of a particularly serious crime 3. Commission of a serious nonpolitical crime outside the U.S. prior to arrival 4. Reasonable grounds for regarding applicant as a danger to U.S. security 5. Terrorist activities 6. Firm resettlement in another country prior to arrival. http://www.nyc24.org/2008/issue3/story3/images/asylum_process.pdf
3. Joseph E. Langlois is the Chief of the Asylum Division within the Refugee, Asylum and International Operations Directorate. The mission of the Asylum Division encompasses the management of three main programs:  adjudication of affirmative asylum applications, adjudication of applications for suspension of deportation or cancellation of removal under Section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), and credible fear screenings for those in expedited removal. In addition, Asylum Officers conduct reasonable fear of persecution or torture screenings and travel overseas to interview and process refugees for the Refugee Affairs Division. The Asylum Division guides and oversees the operations of eight asylum offices
   located in Arlington, VA; Chicago, IL; Houston, TX; Los Angeles, CA; Miami, FL; Newark, NJ; New York, NY; and San Francisco, CA. The Asylum Officer Corps consists of approximately 300 Asylum Officers and 60 Supervisory Asylum Officers. Each field office reports to Asylum Division headquarters. The Asylum Division headquarters office is composed of three separate branches. The Operations Branch is responsible for program and procedural development with respect to all programs managed by the Asylum Division, including the affirmative asylum, credible fear, ABC/Nicaraguan Adjustment and Central American Relief Act (NACARA 203) and reasonable fear programs. The branch develops policy, regulations and procedures and evaluates major Asylum program initiatives. The Management Branch is responsible for oversight of issues related to productivity, logistics and infrastructure. Often coordinating with other Department of Homeland Security and USCIS components, the branch manages finances, statistics, budget, staffing, productivity plans, records, contracts, procurement,
   correspondence, emergency planning, information management, facilities, property, security, labor-management relations and performance appraisal systems. Through its Training, Research, and Quality Branch (TRAQ) the Asylum Division conducts quality assurance, develops training programs and compiles and
   disseminates information on country conditions. TRAQ designs and delivers the mandatory five-week Asylum Officer Basic Training Course for all incoming Asylum Officers. The course covers asylum and refugee law, international human rights law, interviewing techniques, decision-making and decision-writing skills and effective country conditions research skills. http://www.uscis.gov/files/nativedocuments/asylum_division.pdf

Source: http://www.cis.org/ConflictOverAsylumPolicy

Filed under: Asylum in the US, Human Rights, Immigratoin Reform, Laws, Legal Development, Social Engineering

Voluntary Departure vs. Deportation

Voluntary departure is far more beneficial than a deportation. Voluntary departure helps overcome the obstacles to reenter the US such as 3 or 10 year ban provided that the person departed the US within the prescribed time.

Filing an appeal with BIA may allow one to remain until the case decided. If it fails again, a voluntary departure option is given again, on condition that the appeal was filed timely before the expiry of the first voluntary departure time limit.

Typically, the voluntary departure period begins running on the date of the order. However, when a respondent appeals an immigration judge’s (IJ) decision to the BIA, the filing of the appeal automatically stays execution of the IJ’s order. See Matter of A-M-, 23 I&N Dec. 737, 744 (BIA 2005) (citing 8 C.F.R. § 1003.6(a)). Thus, while an appeal is pending, the voluntary departure period is not running and a respondent cannot be charged with failing to depart.2 If the Board of Immigration Appeals (BIA) dismisses the appeal, the BIA’s general policy is to reinstate the voluntary departure order for the same amount of time initially ordered by the immigration judge.3 See Matter of A-M-, 23 I&N Dec. at 744.

Voluntary departure carries a number of benefits.  First, because it  is not a removal order, leaving the United States under voluntary departure does not result in inadmissibility for ten years under INA § 212(a)(9)(A), because of having been removed from the United States.  In addition, since it is not a removal order, it does not subject a person to reinstatement of removal, should that person subsequently enter the United States unlawfully.  Finally, it allows the individual to leave on his or her own, avoiding the stigma of deportation.  Persons who most benefit from a grant of voluntary departure in lieu of removal are those who will ultimately have to travel abroad to obtain their immigrant visas because they do not qualify for adjustment of status.

On the other hand,  if the respondent is granted voluntary departure and does not leave in a timely manner, there are significant negative consequences, outlined below.

The statutory requirements for voluntary departure are found at INA § 240B, and the regulations are found at 8 CFR § 240.25 and 8 CFR § 1240.26.

Also read:

1. www.aila.org/content/default.aspx?docid=27503
2. http://www.massachusettsimmigrationlawyerblog.com/2009/06/why-i-dont-recommend-voluntary.html
3. http://www.asianjournal.com/immigration/atty-robert-reeves/2029-the-privileges-and-consequences-of-voluntary-departure.html
4. http://www.refugees.org/uploadedFiles/Participate/National_Center/Resource_Library/Practice%20Adv-%20VD-lac_pa_061705.pdf

This is Not a Legal Advice. Information is based on the sources/links mentioned above.

Filed under: Asylum in the US, Human Rights, Immigratoin Reform, Laws

The Tier III list

Pursuant to INA 212 (a) (3) (B)

B) Terrorist activities-

(i) IN GENERAL.-Any alien who-

(I) has engaged in a terrorist activity,

(II) a consular officer or the Attorney General knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity (as defined in clause (iv)),

(III) has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity,

(IV) is a representative (as defined in clause (v)) of–

(aa) a foreign terrorist organization, as designated by the Secretary of State under section 219, or

(bb) a political, social or other similar group whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities,

(V) is a member of a foreign terrorist organization, as designated by the Secretary under section 219, or is inadmissible. An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for purposes of this Act, to be engaged in a terrorist activity.

(VI) has used the alien’s position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization, in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities, or

(VII) is the spouse or child of an alien who is inadmissible under this section, if the activity causing the alien to be found inadmissible occurred within the last 5 years,

(ii) EXCEPTION- Subclause (VII) of clause (i) does not apply to a spouse or child–

(I) who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section; or

(II) whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity causing the alien to be found inadmissible under this section.

(iii) TERRORIST ACTIVITY DEFINED.-As used in this Act, the term “terrorist activity” means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:

(I) The highjacking or sabotage of
any conveyance (including an aircraft, vessel, or vehicle).

(II) The seizing or detaining, and
threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.

(III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18, United States Code) or upon the liberty of such a person.

(IV) An assassination.

(V) The use of any-

(a) biological agent, chemical agent, or nuclear weapon or device, or

(b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.

(VI) A threat, attempt, or conspiracy to do any of the foregoing.

(iv) ENGAGE IN TERRORIST ACTIVITY DEFINED- As used in this chapter, the term “engage in terrorist activity” means, in an individual capacity or as a member of an organization-

(I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;

(II) to prepare or plan a terrorist activity;

(III) to gather information on potential targets for terrorist activity;

(IV) to solicit funds or other things of value for–

(aa) a terrorist activity;

(bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or

(cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity;

(V) to solicit any individual–

(aa) to engage in conduct otherwise described in this clause;

(bb) for membership in a terrorist organization described in clause (vi)(I) or (vi)(II); or

(cc) for membership in a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity; or

(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training–

(aa) for the commission of a terrorist activity;

(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;

(cc) to a terrorist organization described in clause (vi)(I) or (vi)(II); or

(dd) to a terrorist organization described in clause (vi)(III), unless the actor can demonstrate that he did not know, and should not reasonably have known, that the act would further the organization’s terrorist activity.

This clause shall not apply to any material support the alien afforded to an organization or individual that has committed terrorist activity, if the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, concludes in his sole unreviewable discretion, that this clause should not apply.

(v) REPRESENTATIVE DEFINED.-As used in this paragraph, the term “representative” includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.

(vi) TERRORIST ORGANIZATION DEFINED- As used in clause (i)(VI) and clause (iv), the term ‘terrorist organization’ means an organization–

(I) designated under section 219;

(II) otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General, as a terrorist organization, after finding that the organization engages in the activities described in subclause (I), (II), or (III) of clause (iv), or that the organization provides material support to further terrorist activity; or

(III) that is a group of two or more individuals, whether organized or not, which engages in the activities described in subclause (I), (II), or (III) of clause (iv).

Tier III group

USCIS has placed on hold the following categories of aliens for which exemptions are not yet available (and the only ground for referral or denial is a terrorist-related inadmissibility provision): (1) an alien associated with 1 of the 10 named groups benefitted by the CAA who would remain inadmissible despite the CAA’s “automatic relief” provision; (2) an alien who is inadmissible under the Act’s terrorism provision based on activity associated with a Tier III group not under duress; (3) an alien who is inadmissible under the terrorism-related provisions of the Act, other than material support, based on any activity or association with a Tier I, II, or III Group that was under duress; (4) a voluntary provider of medical care to any Tier I, II, or III organizations, to their members, or to individuals who have engaged in terrorist activity; and (5) an alien who is inadmissible as the spouse or child of aliens described above, whether or not the aliens have applied for an immigration benefit.

The Tier III list, comprises of 8 (or 10 groups?) groups per USCIS-Memo-Processing-of-Asylum-Division-Cases-Involving-Material-Support published on June 1, 2007. See: http://www.ansarilawfirm.com/docs/USCIS-Memo-Processing-of-Asylum-Division-Cases-Involving-Material-Support.pdf

CAA § 691(b), 121 Stat. at 2365. The 10 named groups that benefitted from the CAA’s “automatic relief” provision as well as from the Secretary’s June 2008 exercise of authority are: Karen National Union/Karen National Liberation Army (“KNU/KNLA”); Chin National Front/Chin National Army (“CNF/CNA”); Chin National League for Democracy (“CNLD”); Kayan New Land Party (“KNLP”); Arakan Liberation Party (“ALP”); Tibetan Mustangs; Cuban Alzados; Karenni National Progressive Party (“KNPP”); and groups affiliated with the Hmong and Montagnards. See also Matter of S-K-, 24 I&N Dec. 475 (BIA 2008). On July 1, 2008, Congress added the African National Congress to the previously named groups. See Pub. L. No. 110-257, 122 Stat. 2426 (2008).

See: http://www.usdoj.gov/eoir/vll/ILA-Newsleter/ILA%20Vol%202/vol2no12.pdf

Pub. L. No. 110-257, 122 Stat. 2426 (2008) is available at:
http://www.archives.gov/federal-register/laws/past/110-second-session.txt

You may also want to see:
http://www.rcusa.org/uploads/pdfs/LIRS%20Q&As%20on%20terrorism-material%20support,%208-13-08.pdf

Here’s one more:
http://www.humanrightsfirst.info/pdf/08130-asy-new-amendmensts-ina.pdf

My finding: CPN-M does not make it to the Tier III organisation. It comes under TEL and FTO.

The following groups of concern have not been designated as Foreign Terrorist Organizations under 8 USC Section 1189, although many have been designated under other U.S. Government counterterrorism authorities.

Al-Badhr Mujahedin (al-Badr)
Al-Ittihad al-Islami (AIAI)
Alex Boncayao Brigade (ABB)
Anti-Imperialist Territorial Nuclei (NTA)
Army for the Liberation of Rwanda (ALIR)
Cambodian Freedom Fighters (CFF)
Communist Party of India (Maoist)
Communist Party of Nepal (Maoist)/United People’s Front

See: Page 47 at http://www.state.gov/documents/organization/65479.pdf

Individual aliens providing support to or associated with TEL-designated organizations may be found “inadmissable” to the U.S., i.e., such aliens may be prevented from entering the U.S. or, if already in U.S. territory, may in certain circumstances be deported. Examples of activity that may render an alien inadmissible as a result of an organization’s TEL designation include:

* membership in a TEL-designated organization;
* use of the alien’s position of prominence within any country to persuade others to support an organization on the TEL list;
* solicitation of funds or other things of value for an organization on the TEL list;
* solicitation of any individual for membership in an organization on the TEL list; and
* commission of an act that the alien knows, or reasonably should have known, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material for financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training to an organization on the TEL list.

(It should be noted that individual aliens may also found inadmissible on the basis of other types of terrorist activity unrelated to TEL-designated organizations; see 8 U.S.C. §1182(a)(3)(B).)

See: http://www.state.gov/s/ct/rls/other/des/123086.htm

Releases > Terrorism Designations>Terrorist Exclusion List

Office of the Coordinator for Counterterrorism
December 29, 2004

Section 411 of the USA PATRIOT ACT of 2001 (8 U.S.C. § 1182) authorized the Secretary of State, in consultation with or upon the request of the Attorney General, to designate terrorist organizations for immigration purposes. This authority is known as the “Terrorist Exclusion List (TEL)” authority. A TEL designation bolsters homeland security efforts by facilitating the USG’s ability to exclude aliens associated with entities on the TEL from entering the United States.

Designation Criteria

An organization can be placed on the TEL if the Secretary of State finds that the organization:

* commits or incites to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;
* prepares or plans a terrorist activity;
* gathers information on potential targets for terrorist activity; or
* provides material support to further terrorist activity.

Under the statute, “terrorist activity” means any activity that is unlawful under U.S. law or the laws of the place where it was committed and involves: hijacking or sabotage of an aircraft, vessel, vehicle or other conveyance; hostage taking; a violent attack on an internationally protected person; assassination; or the use of any biological agent, chemical agent, nuclear weapon or device, or explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property. The definition also captures any threat, attempt, or conspiracy to do any of these activities.

Designation Process

The Secretary of State is authorized to designate groups as TEL organizations in consultation with, or upon the request of the Attorney General. Once an organization of concern is identified, or a request is received from the Attorney General to designate a particular organization, the State Department works closely with the Department of Justice and the intelligence community to prepare a detailed “administrative record,” which is a compilation of information, typically including both classified and open sources information, demonstrating that the statutory criteria for designation have been satisfied. Once completed, the administrative record is sent to the Secretary of State who decides whether to designate the organization. Notices of designations are published in the Federal Register.

Effects of Designation

Legal Ramifications

Individual aliens providing support to or associated with TEL-designated organizations may be found “inadmissable” to the U.S., i.e., such aliens may be prevented from entering the U.S. or, if already in U.S. territory, may in certain circumstances be deported. Examples of activity that may render an alien inadmissible as a result of an organization’s TEL designation include:

* membership in a TEL-designated organization;
* use of the alien’s position of prominence within any country to persuade others to support an organization on the TEL list;
* solicitation of funds or other things of value for an organization on the TEL list;
* solicitation of any individual for membership in an organization on the TEL list; and
* commission of an act that the alien knows, or reasonably should have known, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material for financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training to an organization on the TEL list.

(It should be noted that individual aliens may also found inadmissible on the basis of other types of terrorist activity unrelated to TEL-designated organizations; see 8 U.S.C. §1182(a)(3)(B).)

Other Effects

1. Deters donation or contributions to named organizations.
2. Heightens public awareness and knowledge of terrorist organizations.
3. Alerts other governments to U.S. concerns about organizations engaged in
terrorist activities.
4. Stigmatizes and isolates designated terrorist organizations.

Background

Secretary of State Colin Powell, in consultation with the Attorney General, designated the following organizations, thereby placing them on the Terrorist Exclusion List (TEL). Ten groups were added to the TEL on April 29, 2004.

Terrorist Exclusion List Designees (alphabetical listing)

* Afghan Support Committee (a.k.a. Ahya ul Turas; a.k.a. Jamiat Ayat-ur-Rhas al Islamia; a.k.a. Jamiat Ihya ul Turath al Islamia; a.k.a. Lajnat el Masa Eidatul Afghania)
* Al Taqwa Trade, Property and Industry Company Ltd. (f.k.a. Al Taqwa Trade, Property and Industry; f.k.a. Al Taqwa Trade, Property and Industry Establishment; f.k.a. Himmat Establishment; a.k.a. Waldenberg, AG)
* Al-Hamati Sweets Bakeries
* Al-Ittihad al-Islami (AIAI)
* Al-Manar
* Al-Ma’unah
* Al-Nur Honey Center
* Al-Rashid Trust
* Al-Shifa Honey Press for Industry and Commerce
* Al-Wafa al-Igatha al-Islamia (a.k.a. Wafa Humanitarian Organization; a.k.a. Al Wafa; a.k.a. Al Wafa Organization)
* Alex Boncayao Brigade (ABB)
* Anarchist Faction for Overthrow
* Army for the Liberation of Rwanda (ALIR) (a.k.a. Interahamwe, Former Armed Forces (EX-FAR))
* Asbat al-Ansar
* Babbar Khalsa International
* Bank Al Taqwa Ltd. (a.k.a. Al Taqwa Bank; a.k.a. Bank Al Taqwa)
* Black Star
* Communist Party of Nepal (Maoist) (a.k.a. CPN(M); a.k.a. the United Revolutionary People’s Council, a.k.a. the People’s Liberation Army of Nepal)

See more of the list at http://www.state.gov/s/ct/list/

Filed under: Asylum in the US, Human Rights, Immigratoin Reform, Laws, Social Engineering, कानून नेपाल

Reform of Nepalese Judiciary :: My Version.

In my personal opinion, I think ‘they’ are trying to revive their people’s court under their federal structure as the “mobile courts”. Instead of reviving their people’s court, judiciary and judicial council should plan and implement a better option of superior court under the district courts. Nonetheless, Illegitimate Kangaroo Courts must come to cease.

In the US they have a Superior Court which performs like kangaroo courts. This is the court of first instance here. The vast majority of cases in the California courts begin in one of the 58 superior, or trial, courts-which reside in each of the state’s 58 counties in California. With facilities in more than 450 locations, these courts hear both civil and criminal cases, as well as family, probate, and juvenile cases. They normally hear petty cases. Issues less that $7500 are mediated through small claims mediation unit. ——- If this modal is implemented in Nepal, the superior courts should be opened in every municipalities having jurisdiction over the villages, towns and the municipality. There are 58 municipalities in Nepal and they can be taken as superior courts.

The existing District court can be court of second instance as an appeal on superior court and as a first instance court in cases claiming more than a minimum set financial standard such as $7500 lets say in Nepal for any issues above Rs.500,000.

The appellate court should be the court of last instance and the court of second and last appeal. The decision of appellate court should be final. Competent lawyers must be chosen to fulfill the vacant posts in the judiciary at this level.

The role of Supreme Court should be more into law making and delivering precedents, outdating laws, revising precedents and reviewing the cases. Supreme Court should be taking only those cases approved for a final appeal on the decision of the appellate court by a division bench of three justices (considering the voting ratio). Only Rare appeal cases that have constitutional issues, misinterpretation of laws, precedent flaws, amicus curie, judicial review, and where the court needs to address and introduce new laws through interpretation should be under the jurisdiction of the apex court. The apex court will thus maintain a high level of censorship, integrity and authority in terms of the balance of the three branches of the governance as well. The apex court should slowly refrain from being involved in the day to day decision making on small petty civil suits to previously decided criminal verdicts from district and appellate. The appointment of temporary and permanent judges should be made through promotion of existing judges and through allocation of adequate number of seats to the Bar.

The tenure of the justice also comes into play if we consider the above aspect. The justices of the Supreme Court should hold the offices for life based on their seniority and experience. The current Supreme Court justices should continue holding the offices until one resigns or the office is vacated under the laws. The check and balance of power through legislative will not let the judiciary be out of reach. Although the raw and inexperienced legislature did play a part through parliamentary Special Hearing Committee, it has nonetheless established the fact that there will be scrutiny from the legislative on judiciary in the years to come.

Superior Court: For the purposes of eligible human resources for the superior courts, if they are to be established in 58 municipalities, judiciary should consider opening vacancy for Associate Judges. There could be hiring of 5-7 associate judges in every superior court, which creates a vacancy of almost 400 associate judges. 50 years back when the judiciary was established we did not have enough human resources. But now we have two good law schools with production of good number of competitive scholars. We have adequate number of educated law graduates with LLM, SJD and specialization in specific laws. These can serve as a associate judges for special benches such as commercial law, family law, human rights, employment, labor, tax, small claims, juvenile, women’s rights, environment, compensation, gay & lesbian rights, minority and deprived rights etc. Experienced associate judges could be promoted to a district court and later to the appellate. They can also serve as Judges in special courts such as administrative court, tax court, labor court, juvenile court, etc. The decentralization of lower level of judiciary will be more reachable. The superior courts decision generated through mediation and arbitration can serve as binding unless one party chooses to appeal to the district.

The case loads in all the courts will drastically go down with implementation of this system and decisions will be quicker.

There is a need of revision of rules of professional responsibility of the lawyers. The rules of professional conduct here in the US are extremely rigid and harsh allowing no lawyer to initiate corruption whereas; in Nepal there is no rule of discipline virtually. The 10 Sections of Moral Rules for Lawyers are outdated. Action against defaulting lawyers should be taken on a tri-semester basis for debarring, suspending or warning the lawyers. Any decision of conduct on lawyers should be made public monthly on Nepal bar and Supreme Court website and publications. If bar wants bench to perform effectively, bench must scrutinize bar strictly. In 5 years of practice as an advocate and 2 years as a pleader, I never saw one single publication where the decision to take action on lawyers were published. Public was never made aware of the lawyers images who were punished or were under interrogation.

Another area of reform should be CLASS ACTION LAW SUITS. The corporate sector in Nepal has always been untouchable for the acts and deeds that have done in mass. Godavari marbles established Right to Life as fundamental rights but want the corporate giant made to compensate to the victims? NO. Class action law suits process allows victims of similar class who are against one corporate, to file one Class Action law Suit for compensatory damages. The class action law suit filers have to agree in writing to accept the verdict in the same amount.

I wanted to do a class action law suit against Janakpur Cigarette and Surya Tobacco forcing them to compensate the victim families in Janakpur and Simara Municipality who have been forced to live their life under inhuman respiratory conditions due to the emission of tobacco particles in the air. My assumption is that the patients of lungs cancer, bronchitis, asthma, skin allergies in these areas are directly correlated to the polluted emission from these factories. The class action law suit would demand that the factories be either resettled in a government specified industrial zone outside the residential zone or be shut down. The law suit could also demand that the employees be guaranteed life insurance of a fair market value and scientific and adequate physical protection procedures be adopted for the employees inside the factory areas through proper protective eye wares, protective clothes. This is my dream case and I will pursue it definitely in future, when there’s a provision for class action.

Other untouched corporate giants are:

1. Royal Drugs which sells expired medicine and fail to recall the expired medicines from the market
2. Hospitals with malpractice cases
3. Airlines with negligent history

Filed under: Laws, Legal Development, Social Engineering

LawNepal :: 75,000 Readers :: 176 Nations

I would like to thank each readers from across the globe personally for the continued support, comments, suggestions and for loving Nepal. In 2008, almost 25000 readers visited this blog from all over the world.

Santosh Giri, California, January 20, 2009 (Inauguration Day)

Current Country Totals
From 25 Jan 2008 to 13 Jan 2009

[www.clustermaps.com]

United States (US)	15,868
Nepal (NP)	1,663
India (IN)	1,463
United Kingdom (GB)	1,293
Canada (CA)	530
Australia (AU)	448
Nigeria (NG)	214
Philippines (PH)	164
Ireland (IE)	158
United Arab Emirates (AE)	155
Pakistan (PK)	149
Germany (DE)	142
Bangladesh (BD)	126
Hong Kong (HK)	114
Japan (JP)	101
Netherlands (NL)	99
Thailand (TH)	92
Morocco (MA)	86
Korea, Republic of (KR)	86
Europe (EU)	85
Ghana (GH)	84
Italy (IT)	77
Singapore (SG)	77
Qatar (QA)	74
South Africa (ZA)	72
Norway (NO)	70
Egypt (EG)	69
Saudi Arabia (SA)	67
Cameroon (CM)	66
Sweden (SE)	65
Malaysia (MY)	65
Spain (ES)	62
France (FR)	61
Algeria (DZ)	56
Belgium (BE)	55
Jamaica (JM)	52
Iran, Islamic Republic of (IR)	51
Finland (FI)	49
Switzerland (CH)	48
Austria (AT)	47
Mexico (MX)	46
Ethiopia (ET)	44
Turkey (TR)	43
Kenya (KE)	42
Sri Lanka (LK)	41
Kuwait (KW)	37
New Zealand (NZ)	36
Brazil (BR)	29
Israel (IL)	29
Asia/Pacific Region (AP)	29
Denmark (DK)	26
Cote D’Ivoire (CI)	26
Uganda (UG)	25
Indonesia (ID)	23
Romania (RO)	23
Gambia (GM)	23
Jordan (JO)	23
Russian Federation (RU)	22
Poland (PL)	22
Ukraine (UA)	20
Taiwan (TW)	18
Sudan (SD)	18
Trinidad and Tobago (TT)	17
Tanzania, United Republic of (TZ)	17
Bahrain (BH)	16
Lebanon (LB)	16
Greece (GR)	15
Bulgaria (BG)	15
Senegal (SN)	15
Hungary (HU)	14
Cambodia (KH)	14
Albania (AL)	13
Tunisia (TN)	13
Colombia (CO)	12
Portugal (PT)	12
Rwanda (RW)	11
Vietnam (VN)	11
Serbia (RS)	11
Liberia (LR)	11
Peru (PE)	10
Cyprus (CY)	10
Venezuela (VE)	10
Yemen (YE)	10
Dominican Republic (DO)	9
Macedonia (MK)	9
Lithuania (LT)	9
Argentina (AR)	9
Puerto Rico (PR)	9
Croatia (HR)	9
China (CN)	8
Bahamas (BS)	8
Czech Republic (CZ)	8
Chile (CL)	8
Benin (BJ)	8
Myanmar (MM)	8
Ecuador (EC)	7
Guam (GU)	7
Slovakia (SK)	7
El Salvador (SV)	7
Afghanistan (AF)	7
Armenia (AM)	7
Oman (OM)	7
Eritrea (ER)	6
Luxembourg (LU)	6
Bermuda (BM)	6
Georgia (GE)	5
Mongolia (MN)	5
Belarus (BY)	5
Kyrgyzstan (KG)	5
Libyan Arab Jamahiriya (LY)	5
Congo, The Democratic Republic of the (CD)	5
Guyana (GY)	5
Costa Rica (CR)	5
Malta (MT)	4
Botswana (BW)	4
Guatemala (GT)	4
Mauritius (MU)	4
Northern Mariana Islands (MP)	4
Belize (BZ)	4
Cayman Islands (KY)	4
Barbados (BB)	4
Maldives (MV)	4
Syrian Arab Republic (SY)	4
Sierra Leone (SL)	4
Latvia (LV)	4
Panama (PA)	4
Palestinian Territory (PS)	4
Slovenia (SI)	3
Uzbekistan (UZ)	3
Fiji (FJ)	3
Tajikistan (TJ)	3
Virgin Islands, U.S. (VI)	3
Saint Vincent and the Grenadines (VC)	3
Zambia (ZM)	3
Montenegro (ME)	3
Macau (MO)	3
Bosnia and Herzegovina (BA)	3
Zimbabwe (ZW)	2
Namibia (NA)	2
Guinea (GN)	2
Iceland (IS)	2
Somalia (SO)	2
Lesotho (LS)	2
Burkina Faso (BF)	2
Chad (TD)	2
Mali (ML)	2
Kazakstan (KZ)	2
Saint Kitts and Nevis (KN)	2
Haiti (HT)	2
Malawi (MW)	2
Bhutan (BT)	2
Saint Lucia (LC)	2
Anguilla (AI)	1
Virgin Islands, British (VG)	1
Mozambique (MZ)	1
Cuba (CU)	1
Swaziland (SZ)	1
Brunei Darussalam (BN)	1
Togo (TG)	1
Estonia (EE)	1
Mauritania (MR)	1
Bolivia (BO)	1
Suriname (SR)	1
Gibraltar (GI)	1
Azerbaijan (AZ)	1
Samoa (WS)	1
Honduras (HN)	1
Dominica (DM)	1
Palau (PW)	1
Moldova, Republic of (MD)	1
Guadeloupe (GP)	1
Monaco (MC)	1
Netherlands Antilles (AN)	1
Grenada (GD)	1
Nicaragua (NI)	1
Djibouti (DJ)	1

Filed under: Laws, Legal Development, Social Engineering, कानून नेपाल

Postmodern Nepalese Judiciary

The Past

King Amshuverma (6th Century AD) introduced unwritten laws of administration, land reform and monetary system. With few exceptions of written laws such as King Jayasthithi Malla’s (1382–95AD) Manav Nyayashastra (Civic Laws – a legal and social code strongly influenced by contemporary Hindu principles), King Ram Shah’s (Chhabish Thiti (26 Commandments), the first written law was the Muluki Ain (Civil Code) 1854AD introduced by Prime Minister Jang Bahadur Rana, after his personal exposure to the Napoleon Code and the Common Law System while he toured Europe in 1850. The Nepalese Judicial mechanism remained under the clutches of the reigning rulers as The Royal Court until 1950.

The Modern Nepal’s Independent Judiciary began with establishment of the Supreme Court as Pradhan Nyayalaya in 1950, which envisaged the Supreme Court as the guardian of law. It also guaranteed independence of judiciary and the law above the king. In 1963, king came into power controlling the executive, legislative and partially the judiciary through its supreme power to “Review Cases” decided by Supreme Court known as “Hukum Pramangi” (Order of the Crown). The 1990 revolution reestablished democracy in Nepal and promised an independent judiciary. The legislative and executive branches of the governance ceased to function in 2002 after dissolution of the parliament and rise of direct rule of the King from 2005 to 2006. Judiciary remained the sole independent authority in Nepal from 2002 to 2008 in absence of a Legislative and an Executive based on a popular will.

The Present

In 1996 the Communist Party of Nepal (Maoists) or the terrorists launched an armed revolution in Nepal with a new notion of Judiciary, a barbaric people’s court, which has its own unwritten laws and so-called judges issuing capital punishment of severe form-the death penalty. The constitution assembly elections of April 2008 validated a Guerilla Government.

“The main agenda of the SPA and the Maoists was to hold a Constituent Assembly (CA) election, with the primary responsibility of drafting and promulgating a new constitution defining the future political system in Nepal. The interim constitution, adopted on January 15, 2007, expressed full commitment to democratic ideals and norms, including competitive multi-party democracy, civil liberties, fundamental human rights, adult enfranchisement, periodic elections, press freedom, an independent judiciary, and the rule of law. The interim constitution also guaranteed the basic rights of Nepali citizens to formulate a constitution for themselves and to participate in the Constituent Assembly in an environment free from fear. The interim constitution transferred all powers of the King as head of state to the prime minister and stripped the King of any ceremonial constitutional role. Under the interim constitution, the monarchy was abolished by the first meeting of the Constituent Assembly. The interim Parliament was a unicameral house”

(http://www.state.gov/r/pa/ei/bgn/5283.htm).

The April 2008 Elections and the first meeting of Constitution Assembly ousted the King. With the Communist Party of Nepal (Maoist) CPNM in the power, steps have been taken every now and then to regulate the judiciary by them, thus putting the independent judiciary in a danger. CPNM came into a power play with its written commitment with major seven parties, where it basically agreed in dissolving its Nepali Janjaweed or Young communist league (YCL) which was established in 2007, returning seized property and refraining from taking arms. CPNM has failed to abide all of these three notions, let alone other clauses of the SPAM Agreement. In April 2008, the Maoists won in the elections with majority. During elections, the Maoists and their allies committed several crimes against humanity including kidnapping, killing, extortion and forced disappearance of people around the nation. Even after the elections the Maoists are still involved in grave human rights violation across the nation. The Maoist has taken over the nation through intimidation, threatening the general public and killing and kidnapping people. The Maoists has been openly threatening people and continue their atrocities though their armed militia and armed youth wing YCL which has been taking action against people who were against the Maoists in anyway in the past. In August 2008 the leader of the terrorist Maoists became the Prime Minister, The Maoist chairman has openly challenged the rule of law by having armed militia around him.On August 16, 2008 after the Maoist chairman was declared the prime minister, the Maoists thrashed a public in eastern Nepal for no reason for three hours “to celebrate their victory”. The Maoists and YCL are still involved in killing, kidnapping and torturing people. CPNM continues its atrocities, kidnapping, killings, extortion and poses a threat to people from every field. CPNM has been continuing its excesses through its sister organizations Young Communist League (YCL), Janatantrik Tarai Mukti Morcha (JTTM), Madheshi Jana Adhikar Forum (MJF), Madhesi Tigers (MT), Janatantrik Kirat Mukti Morcha (JKMM) etc. The Maoists have revived and continued their People’s Court across the nation and they are implementing their decisions and taking action against the people who were against tem in any way. On August 14, 2008 the Maoist Supreme Commander Prachanda was elected as the Prime Minister with support from MJF, clearly establishing CPNM and MJF alliance pre and post elections and further strengthening the fact that MJF is a splinter group of CPMN or a breakaway faction. On January 2009, Maoist Leaders repeatedly threatened over the media that they are going to control the governance if any effort were made to topple their government. Meanwhile, their capital punishment continues, property still being seized and their splinter groups still killing innocent public, human right defenders and journos.

The Future

Amidst this entire crisis, Judiciary remains intact and is committed towards protection of independence of judiciary.

Parliamentary Hearing Committee

For the first time a Parliamentary Hearing Committee quizzed the Supreme Court Chief Justice Kedar Prasad Giri for his post for the first time in history in October 2007. Though the PHC hearing was itself controversial, a trend was set to make judiciary accountable to Parliament. In January 2009, 10 recommended Supreme Court Judges were quizzed by the PHC.

e-judiciary

One of the goals set by the CJ was to implement an e-judiciary. The concept was primarily set up by preceding justice. During the term of CJ Giri, judiciary has been successful to link all courts via networking, created online case status and tracking system, online cause-list of cases, a  legal information system to name a few which has promised a swift and prompt justice delivery for now and future. Administrative tasks and applications are being made online. In a few years to come, when the basic judicial electronic infrastructure has been fulfilled, backlogged cases will be reduced to a very few numbers. These are but just a few highlights of the golden era of judiciary.

The Golden Era of Nepalese Judiciary

To ensure the continuation of the fast paced development of Nepal’s judiciary or the golden era of Nepalese Judiciary, which is being developed to make it on par with the global standards of judicial systems, the subsequent Chief Justices Hon. Min Bahadur Raimajhi, Hon. Anup Raj Sharma and Hon. Ram Kumar Prasad Shah have been working together in the e-judiciary project.

Challenges and Obstacles

There are still some shortcomings in the system that is being developed.  However, there are major obstacles to its development as well. The lack of power supply, ongoing violence, by YCL and factions of  CPNM, heightened insecurity, destruction of infrastructures, forced exile of Pahade judicial employees from Terai region by the extremists, murder of Pahade government employees by the extremists and above all the parallel existence of so-called people’s court which has been executing individuals and imposing deterrent justice system.

Winds of Change

Petty civil cases can be resolved by individuals through alternate means of justice such as arbitration, mediation and reconciliation, which have already begun in some districts. Forms could be developed online for parties and lawyers for administrative tasks such as court date calendar, rescheduling, applications, submission of fines, fees, penalties and court fees. Real-time case status update can be generated from one click on the internet. Parties to the cases are already being alerted prior to the case hearing via SMS, email and phone. Real time case list and hearing schedules are already displayed on hourly basis on computer monitor and TV screens at the court premises in the lobby, chamber, canteen, the Bar units and wait benches.

2008 Annual Report

The 2008 Judiciary Annual Report cites that expected outcomes could not be gained in the field of case settlement because of the security situation, lack of proper human resources, the Constituent Assembly elections in April 2008 and strikes held in different places directly affected the court procedures including summons, land measurement, implementation of the court verdict, punishment and others. Moreover, the movement in different districts of eastern and mid-terai, where the percentage of cases were high, was badly affected because of the unfavorable security situation, the report mentions.

Need

There is an immediate need of a strict Judicial Decision Implementation Unit (judicial police) for the purposes of implementation of directives, decisions and orders of the courts. The unit can also speed up the process of recovery of revenue. An elaborated Supreme Court complex is another need with modern infrastructures and facilities. The districts and appellate courts around the nation need to be upgraded with modern technologies in order to materialize the notion of swift judiciary. The selection criteria and procedures of permanent and temporary judges in the district courts also need to be revamped.

Filed under: Human Rights, Laws, Legal Development, Social Engineering

America’s promise to protect asylum-seekers gets lost in the paperwork

By Lisa Rab

For complete story : http://www.westword.com/content/printVersion/914372

Eleven years ago, Peter arrived in America, desperate for a place to hide.In his native Uganda, he had been a rebel, a human-rights activist who fought for a multi-party system in a country ruled since 1986 by a one-party regime. Peter, who did not want his real name printed for fear of retribution, had worked to motivate young people to join the opposition Conservative Party. He’d driven people to rallies and tried to educate them about their political rights.

In September 1997, he was driving with his boss, the director of a Ugandan human-rights organization, when government soldiers arrested them at a roadblock. Peter was taken to a place the soldiers called a “safe house” — a military barracks not part of the regular justice system in Uganda. Here, people suspected of supporting political enemies of the regime were tortured in secret. Peter says he was detained without trial, beaten and tortured for a month.

While he was there, Peter says, his father, another longtime activist, was arrested and fatally stabbed with a bayonet. His mother, already suffering from heart and blood-pressure problems, couldn’t bear the loss of her husband and son at the same time. She died within a week. Peter, who was thirty then, missed both of their funerals.

Eventually, he managed to escape from the prison and use his political connections to obtain a visa and a ticket to safety the United States.

Filed under: Asylum in the US, Human Rights, Immigratoin Reform, Laws, Legal Development, Social Engineering

Nepali Supreme Court Orders to Amend Law on Monarchy

Source: http://english.cri.cn/2947/2008/11/14/65s423954.htm

2008-11-14 12:16:48     Xinhua

The Supreme Court of Nepal on Thursday ordered the government to amend acts that contradict provisions of the Interim Constitution, especially the provisions on defamation of monarchy, local newspaper The Himalayan Times reported Friday. A three-member full-bench of Justices Anup Raj Sharma, Kalyan Shrestha and Rajendra Prasad Koirala issued the order. It asked the Nepali government to take initiatives to come up with provisions that are compatible with the Interim Constitution, which was promulgated on Jan. 15, 2007. A group of lawyers had filed a Public Interest Litigation (PIL) seeking the apex court intervention in the matter, according to the report. The petitioners maintained that the State Offence Act (SOA) 1989 should prohibit anyone from defaming or criticizing the monarchy. They demanded the related section of the 1989 Act to be scrapped as it is incompatible with the Interim Constitution and provisions of the International Convention on Human Rights. SOA 1989 states that those, who defame the king and other members of the royal family, can be jailed for three years or to fine 3,000 Nepalese Rupees (some 40 U.S. dollars) or both. The Act is outdated with the abolition of monarchy, according to the petitioners. The first Constituent Assembly meeting on May 28 declared Nepal a federal democratic republic.

Filed under: Laws, Legal Development, Social Engineering

e-judiciary@nepal

For detailed UNDP Power point Presentation on concepts and strategies: click here: undp_workshop

Source: www.supremecourt.gov.np/pages/news/undp_workshop.ppt

Filed under: Laws, Legal Development, Social Engineering