Monthly Archives: July 2013

Lottery Winners in Same-Sex Marriages: Don’t Be Deterred by Bad Advice!

If you won this year’s Diversity Visa lottery, and are working on getting a green card or immigrant visa to the U.S., and you’re part of a same-sex couple, you were probably excited to hear of the U.S. Supreme Court’s Windsor decision. By overturning a major portion of the federal Defense of Marriage Act (DOMA), this cleared the way for same-sex couples in legally recognized marriages (whether they occurred in the U.S. or another country) to enjoy immigration as well as other benefits.

There’s just one problem: The U.S. State Department and other immigration authorities have been classically slow to catch on. Even after the Windsor decision, some of them were reportedly advising would-be Diversity Visa applicants that no, their same-sex marriages don’t count, and they can’t bring their spouses to the United States.

That’s wrong advice. The government memos are supposedly flying, and hopefully by now DV visa applicants are not being steered in the wrong direction. But if you gave up on bringing your same-sex partner before, it’s time for some quick action now (and ideally a call to an attorney). Even if you’re not married yet, it’s not too late, as described in, “Won the Diversity Visa Lottery: Can I marry my same-sex partner and bring her to the U.S.?

Gay Man From Cameroon Successfully Appeals Claim for Withholding of Removal

map-cameroonGood news on LGBT immigration cases just keeps rolling in. A recently come-to-light Board of Immigration Appeals (B.I.A.) decision (unpublished, issued in May of 2013) practically scolded the immigration judge (IJ) for denying the case of a gay man from Cameroon.

The applicant had applied for asylum and withholding of deportation based on his sexual orientation, past victimization in the form of sexual assaults, and Cameroon’s criminalization of homosexuality.

The man submitted his asylum claim far too late — many years after the one-year deadline on applying for this remedy, unfortunately. That left the B.I.A. with no apparent choice but to uphold the IJ’s denial of the asylum part of the application. But that still left the man’s claim for withholding of removal, a last-ditch remedy protecting would-be asylees from deportation. (Withholding does not, however, lead to a green card like asylum does.)

To be eligible for withholding of removal, an applicant must prove that it’s more likely than not that he would be persecuted or tortured upon return to his home country. The IJ denied this applicant based on a finding that his testimony was implausible and inconsistent, and therefore not credible (believable). Here’s where things get interesting.

A classic inconsistency in an asylum case would be, for instance, where an applicant states in his Form I-589 application for asylum that his sister was threatened and his brother was killed, but testifies in court that his sister was killed and his brother threatened. No matter how horrific the facts, a judge could hardly grant asylum to someone who couldn’t get key aspects of his story straight. Mixing up dates of critical events is also a reason for some applicants to be denied on credibility grounds.

But the inconsistencies noted by the IJ in this man’s case (according to the B.I.A.’s characterization of them) were far more subtle, and included certain judgments about human behavior that the B.I.A. called “erroneous” and I might call “out on a limb.”

For instance, the IJ couldn’t believe that the applicant “could not pinpoint the time that he realized that he was homosexual.” Before I start spluttering about how many people can remember the moment when they determined their own sexuality one way or another, I’ll simply repeat the B.I.A’s statement that this finding was “speculative, at best, and is an inappropriate consideration in a credibility analysis.” The applicant did, after all (quoting the B.I.A. again) “repeatedly state[] that he did not know and that he was still a child when many of these events occurred.”

The IJ also said that “it was illogical for his parents to acknowledge that he told them he was homosexual, but continue to pressure him to pursue heterosexual relationships.” Well, surely they wouldn’t be the first parents to hold onto every last hope that their child would do what society expects! Actually, the B.I.A. said it just as well: “The Immigration Judge provided no support for his belief that parents could not be supportive, yet  pressure their child to pursue a more traditional and acceptable way of life.”

This case isn’t completely sewn up yet (as far as I know). The B.I.A. remanded it back to the Immigration Judge for a final decision, giving the Department of Homeland Security a chance to run some security checks. But based on the B.I.A.’s finding, there should at last be some good news coming to this applicant.

Is the Moon Blue? Priority Dates Current in Family Category 2A

moonThis doesn’t happen very often – only “once in a blue moon,” as they say: Priority Dates for the spouses and children of a U.S. lawful permanent resident (LPR), in category 2A of the family preference system, are shown as “Current” (with a “C”) in the State Department Visa Bulletin for August, 2013.

A wait that usually lasts two to five years has been reduced to zero.

By way of background, the Priority Date is the all-important place in line to get a U.S. immigrant visa, or green card. Because only a limited number are, by law, allocated annually, and demand always exceeds supply, the visas are doled out on a first-applied, first-served basis. More literally, they are based on the date that U.S. Citizenship and Immigration Services (USCIS) received the I-130 visa petition from the U.S. LPR that started the application process on the immigrant’s behalf.

Normally, only when the Visa Bulletin shows a date that is the same or later than the immigrant’s Priority Date is the immigrant allowed to go ahead with the green card application. But the “current” situation is abnormal — everyone can, potentially, move forward, regardless of how long ago they applied or who is in line ahead of them.

How long this will last is anyone’s guess. And intending immigrants in category 2A may need to act quickly to take advantage of it. For more information, and guidance on what to do next, see Nolo’s update, “Spouse or Child of LPR? Your Priority Date Is Current!

Helpful NYT Chart on Federal Benefits Available to Same-Sex Couples

OLYMPUS DIGITAL CAMERANice graphics, nice summary: If you’re a member of a gay couple, you’ll want to check out this New York Times explanation of how the Supreme Court’s recent decision striking down major portions of the federal Defense of Marriage Act (DOMA) affects your rights depending on where in the U.S. you live.

The article’s statement that “Your spouse can apply for a permanent resident visa, known as a green card, for you,” however, needs a footnote.

In terms of basic eligibility rights, it’s absolutely true. But because of various penalties that primarily affect people who entered the U.S. without inspection (EWI, in immigration law lingo), actually claiming that green card may not be so easy. See Nolo’s article, “Entered the U.S. Illegally and Married a U.S. Citizen: What Are the Immigration Options?” for more information.

 

First Green Cards to Same-Sex Couples Being Issued!

ringsAs announced in an article by Julia Preston in the June 30 New York Times, U.S. Citizenship and Immigration Services (USCIS) has already begun approving marriage-based green cards for legally married same-sex couples. (We should expect an announcement from the Guinness Book of World Records next, because I think this is the fastest that this gigantoid bureaucracy has moved on anything, ever. The couple was surprised. Their lawyer was surprised.)

The important thing to realize about this action, however, is that the couple’s application was filed previous to the Supreme Court decision overturning core portions of the federal Defense of Marriage Act, or DOMA (which had created the bar to same-sex-marriage-based green cards in the first place). Apparently a number of same-sex couples anticipated DOMA’s eventual demise, no doubt based on the Obama Administration’s 2011 declaration that DOMA was unconstitutional and shouldn’t be enforced, and they submitted visa petition or green card applications in advance of any certainty that they would be approved. (Just one of those individual acts of courage that adds up to a movement . . . .) The couple in the article submitted a green card application last February.

What this recent USCIS action doesn’t mean is that the agency is prepared for new applications right this minute, or will act this quickly on them. The normal turnaround for an I-130 (the visa petition that the U.S. citizen or permanent resident would file if the immigrant is either overseas or is in the U.S. but ineligible to use the “adjustment of status” procedure, most likely because of an illegal entry), is about six months. (You can view USCIS’s not entirely reliable time estimates on its Case Status page.)

The normal turnaround time when the immigrant is already in the U.S. AND is eligible to use the U.S.-based adjustment of status procedure, in which case the U.S. citizen spouse can file an I-130 visa petition together with the rest of the green card packet, depends on backups at their local USCIS District Office. This process usually also takes several months before the couple is called in for the personal interview at which the green card should be approved.

Add to all this the fact that USCIS hasn’t issued any guidelines about how it will consider same-sex marriage cases and, if you’re in a same-sex binational married couple, you’ve got good reasons to hold off and consult a lawyer before actually submitting anything. At least a few days. We need to make sure no unhappy surprises turn up in the guidelines USCIS issues.

There’s reason to hope that the guidelines will be fairly straightforward, however. USCIS has promised to issue them promptly, and Janet Napolitano stated today that, “. . . I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

No matter what, now is a good time to start figuring out what you’ll need for the green card application and to get the various forms and documents ready. You’ll find information on marriage-based visas and green cards here on Nolo’s website.