SCOTUS, POTUS, and DOMA: Victory for Same-Sex Binational Couples

gaywedNice quote from the President, regarding today’s Supreme Court decision in U.S. v. Windsor striking down the bulk of the federal Defense of Marriage Act (DOMA), which had defined marriage as solely between a man and a woman (and thereby blocked all manner of federal rights and benefits to anyone who didn’t fit the definition):

“I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. . . . I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”

So, it looks like it’s full steam ahead for implementing this law in the immigration context. Up until now, same-sex marriages didn’t count for a thing if the couple wanted to obtain a green card or visa for the foreign-born person. Today, these marriages do count, just the same as anyone else’s. All that matters is that they were legal in the state or country where they took place (so same-sex couples who live in places where same-sex marriage is NOT legal will have to find someplace else to get married in order to take advantage of this ruling).

Already, a New York immigration judge has reportedly halted the deportation proceedings of a gay Colombian man who is legally married to a U.S. citizen. Another male couple in New York, scheduled for a marriage-based green card interview with U.S. Citizenship and Immigration Services (USCIS) yesterday, had their interview postponed until after the DOMA decision — with hopefully an approval on the horizon. (It must have taken some guts to apply for the green card in the first place, knowing that if DOMA was upheld, their case would be denied and the noncitizen could be placed in deportation proceedings.)

The immigration bar has, so far, come up with no reasons why same-sex immigrant couples shouldn’t start filing their applications for green cards right away — with the small caveat that this process is harder than you might think (even for opposite-sex couples), and we still don’t know how quickly USCIS will actually adapt to this new regime. Don’t be surprised if you get some weird requests for evidence during the application process.

This decision should also allow noncitizens coming to the U.S. on temporary visas (H-1B, L-1, J-1, and so on) to obtain derivative visas for their same-sex spouses. (Here, at least, the U.S. government showed some flexibility in the past, by issuing the same-sex spouse a tourist, B-2 visa.)

Scheduling an in-person consult with an immigration attorney is an excellent idea.

For more information, see Nolo’s update, “Same-Sex Marriage Now a Basis for U.S. Lawful Permanent Residence (a Green Card).”

Fee Hikes an Overlooked Aspect of Proposed Immigration Reform

mex border fenceThe legislation being hammered out in the Senate right now contains some pretty expensive elements. Specifically, committing even more resources than have already been thrown at the project of turning the U.S. border with Mexico into an impenetrable barrier is going to cost big bucks. Some $40 billion, to be spent on new border security agents, new drones, new fencing, and so on.

And where will this money come from? Much media attention was devoted recently to a U.S. government report showing that, if the bill is passed, the U.S. government and economy will actually get a boost. New taxpayers will contribute to the system, more undocumented immigrants will start new businesses, and all will hum along happily.

But that shouldn’t obscure a basic reality of the legislation as it stands, containing a recent compromise amendment from Senators Corker, Hoeven, and others. As noted in a recent press release from the American Immigration Lawyers’ Association (AILA), the spending on this bill isn’t going to come from the taxes and economic activity generated by these hardworking immigrants. It looks, for all the world, like it’s going to come straight from the immigrants pockets, as fees when they file their applications for immigration benefits.

AILA explains, “a startling and little-publicized requirement of the amendment would be that all ‘mandatory enforcement expenditures under the Act’ would be funded not by appropriated funds but by additional fees charged to those petitioning through the regular, legal immigration process.”

How high could these fees go up? They’re already in the thousands of dollars for many applications.

The proposed amendment says not only, “the Secretary may adjust the amounts of the fees and penalties . . .  except for [certain] fines and penalties,” but “If the Secretary determines that adjusting the fees and penalties set out [above] will be insufficient or impractical to cover the costs of the mandatory enforcement expenditures in this Act, the Secretary may charge an additional surcharge on every immigrant and nonimmigrant petition filed with the Secretary in an amount designed to be the minimum proportional surcharge necessary to recover the annual mandatory enforcement expenditures in this legislation.”

Ouch! Sky’s the limit!

If you’re an immigrant who already has a path to a visa or green card, the best advice I can give is to make sure the process moves forward as quickly as possible, to win the race against time and this new legislation.

Happy Anniversary, DACA!

obamaThe program known as Deferred Action for Childhood Arrivals or “DACA” was first announced by President Obama on June 15, 2012, just over a year ago. It gave undocumented young immigrants a means of avoiding deportation and obtaining work permits. 

Met at first with skepticism — “Will it be just a way to identify and deport undocumented people?” “Will it disappear in a few months if Obama is not reelected?” “Will it become irrelevant if Congress passes an immigration reform bill?” — DACA has gone on to provide some measure of stability, not to mention work permits, for over 520,000 young people. (See the USCIS “Data on Individual Applications and Petitions” page for monthly updates.) A relatively few 19,000 applications were rejected.

Although the rate of applications has reduced markedly since the program was first announced, it is still possible to apply! See the DACA-related articles on Nolo’s website for more information. And as we’ve seen, Congress is still in a tug-of-war over comprehensive immigration reform.

Is There Still a Chance for Same-Sex Couples to Win Immigration Rights in the Reform Bill?

gemA lot of interesting immigration-related matters have been hitting my email inbox lately. First there was this video on Upworthy, with the heading, “I’d Like To Think I’m An Informed Straight Ally, But I’m Embarrassed I Didn’t Know This.” If Brandon didn’t know, I’m going to guess a few other people also don’t know the following:

Regardless of its legality in the state or country where it took place, a same-sex marriage still, today, does not offer the noncitizen a path to a U.S. green card. And there’s precious little the couple can do to get the noncitizen any other long-term visa or right to stay in the U.S., either. The welcome mat is out for heterosexual married couples — potentially even if they met online a few months ago and have barely spoken in person, one might note — but federal law draws a bright line on this one. The video posted on Upworthy gives a wrenching look at an American/British male married couple who are trying to deal with the all-too-brief amounts of time that U.S. law lets them spend together.

It would be so easy to fix this: In fact, the language proposed by Senator Patrick Leahy as an amendment to the draft immigration reform bill is a model of simplicity, stating “an individual shall be considered a ‘spouse’ and a marriage shall be considered a ‘marriage’ for the purposes of this Act if (1) the marriage of the individual is valid in the State in which the marriage was entered into; or (2) in the case of a marriage entered into outside of any State, the marriage is valid in the place in which the marriage was entered into and the marriage could have been entered into in a State.’’

A few weeks ago, however, the headlines were all about the disappointment of LGBT advocates as Leahy announced that he was withdrawing this amendment, in the interests of passing the bill as a whole.

Yet according to the blogosphere and the American Immigration Lawyers Association, he has refiled it. And according to another email I received today, from Emily Saliers of the Indigo Girls, a briefing is being held for Congressional staffers today at which she and other LGBT advocates will testify to why immigration reform “must include all families.” Emily says, “My partner Tristin is from Canada. We met nearly ten years ago when Tristin was serving as a substitute tour manager for the Indigo Girls. We soon became friends and then slowly fell in love. Even though we are a completely committed family (which includes our six-month old daughter Cleo!), there is no way for me to sponsor Tristin for a green card to keep our family together. This is the story I will be sharing on Capitol Hill today.”

You’d think I’d be humming an Indigo Girls tune after writing this blog. (And I’d be happy to, really.) But the song going through my head is actually Lenny Kravitz’s “It Ain’t Over Til It’s Over.”

Packing a Weapon in a Carry-On Bag Could Get You Deported

xrayWith the recent announcement by the Transportation Security Administration (TSA) that its airline security staff discovered a record-breaking 65 firearms in carry-on bags last week, it seems like a good time to remind visa and green card holders of an important fact: Firearms crimes can get you deported from the United States. “Forgetting” that you packed a gun (which many of the people caught claimed) is not necessarily going to help you, either.

First, the basic TSA rule: You can carry a firearm in your checked baggage if you advise the airline first. But you cannot bring a weapon, explosive, or incendiary with you onto the plane, including in any carry-ons or other accessible property. Failure to comply with this is a civil violation, and you could be fined.

A civil violation is not, however, a crime; and U.S. immigration law specifies that anyone “convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device . . . in violation of any law is deportable.” (See Immigration and Nationality Act Section 237.)

But every airport is also located in some U.S. state — and state law may, in fact, criminalize the gun-toter’s actions. The person could be arrested for crimes with such descriptions as “carrying a concealed weapon in a restricted area,” or “unlawful possession of a weapon.” And those crimes could definitely make the person deportable. For more information on what it means to be “deportable,” and how to defend yourself in immigration court proceedings, see the “Crimes and U.S. Immigration” portion of Nolo’s website.

Will Immigration Reform Expand Rights to Government-Paid Attorneys?

briefcaseIf you were interested in the issues discussed in my recent post called “A Few Immigrants, at Least, Will Now Get Free Immigration Lawyers,” be sure to check out Mark Noferi’s article in Slate, “Deportation Without Representation.”

Noferi, a J.D. from Stanford who teaches immigrants’ rights at Brooklyn Law School, points to a little-noticed piece of the proposed Senate bill: one that would provide government-paid legal representation to some noncitizens in removal proceedings, namely unaccompanied children, people with a serious mentally disability, or those who are “particularly vulnerable” compared to others in the same situation. (See pp. 567-568 of the bill for the actual language.)

For my money, nearly every noncitizen who can’t afford a lawyer is “particularly vulnerable.” They often don’t speak much English, they’re unfamiliar with the U.S. legal system, and they’re up against a body of law that’s confusing, counterintuitive, and often bizarrely punitive.

Noferi, however, focuses on detained immigrants as especially high on the vulnerability list. His description of the detention centers in which tens of thousands of immigrants spend months and years of their lives waiting to see a judge is apt, noting that they are: “routinely denounced for substandard conditions, such as moldy food, poor medical care, overcrowding, excessive force, shackles, and solitary confinement.” Like all generalizations, this doesn’t even begin to convey the awfulness of putting human beings who have committed no crime into a prison being run by people who treat them as if they had. (I’ve visited these places. They suck.)

Let’s hope this portion of the Senate bill survives intact — and is eventually expanded.

Dual Citizens Can’t Claim Asylum Unless They Fear Persecution in Both Countries

sp-lgflagThe U.S. doesn’t, apparently, want asylum applicants to pick and choose among countries when deciding where to seek protection from persecution.  U.S. asylum law thus contains various mechanisms by which to prevent people from shopping around – but oddly enough, is silent on the matter of dual citizens, thus leading to a recent decision from the Board of Immigration Appeals (B.I.A.).

Let’s start with what is in the law, specifically in Section 208 of the Immigration and Nationality Act or I.N.A.) It forbids people from receiving U.S. asylum protection if they have already firmly resettled in another country – even if they otherwise meet the definition of a refugee.

The law similarly says that the U.S. government has the power to send an applicant to a country  that offers a legitimate opportunity to apply for asylum or similar relief in cases where the U.S. has signed an agreement with that country. So far, the U.S. has signed such an agreement only with Canada, and it applies only to applicants who arrive at a U.S. land border, however.

Now, for what’s new: A recent B.I.A. decision called Matter of B-R concerns a Venezualan journalist who applied for asylum claiming persecution by pro-Chavez groups. However, his father was born in Spain, a country where the applicant has no fear of persecution. Although the journalist had seemingly never lived in or laid claim to his Spanish citizenship, the immigration judge (IJ) hearing his asylum case, and the B.I.A. on appeal, seemed convinced that it was an option for him – and denied asylum accordingly.

The IJ and B.I.A. decided this not based on either the firm resettlement or the safe third country provision, but on the argument that  “he is a citizen or national of a country to which he does not fear returning.” This was despite the applicant’s arguments that “the statutory definition of a ‘refugee’ does not require that an alien claim persecution in every country to which he may be  returned . . . [but only in] one of the countries in which he has nationality or citizenship.”

This is one of those decisions that sounds reasonable in part based on individual facts. The Venezualan applicant presumably speaks Spanish, the same language as is spoken in Spain, his country of dual citizenship. And one could do worse than move to Spain. But the same logic is going to look a lot harsher in cases where asylum applicants are forced to continue their flight from persecution and relocate once again to third-world nations where they’ve perhaps never lived and don’t understand a word of the language being spoken.

A Few Immigrants, at Least, Will Now Get Free Immigration Lawyers

crackIn a country where we’re used to the idea that criminal defendants who can’t afford a lawyer are entitled to one at government expense, people are often surprised to hear that noncitizens placed into deportation (removal) proceedings don’t have the same basic due process rights. The Immigration and Nationality Act says that noncitizens in removal proceedings may be represented by counsel, but at no expense to the government.

It’s  certainly not that noncitizens don’t need representation — Department of Justice statistics show that an average of half the people in removal proceedings don’t have a lawyer. The exact figure was 56% for the year 2012.

And given that even a spokesperson for the immigration bureaucracy once said, “Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold,” (Immigration (INS) spokeswoman Karen Kraushaar, quoted by the Washington Post on April 24, 2001), it would be absurd to presume that these immigrants don’t need legal help.

For anyone who might argue that people in removal proceedings deserve to leave the U.S. anyway, take note of studies such as that done in March, 2012 by the Vera Institute of Justice, a nonprofit group, showing that 40% of unaccompanied noncitizen children might qualify for statuses that would exempt them from deportation.

The law on representation for noncitizens  is at last, however, evolving. In a federal court decision called Franco-Gonzalez v. Holder, the judge ordered Immigration and Customs Enforcement (ICE), the U.S. Attorney General, and the Executive Office of Immigration Review (EOIR) to provide legal representation to immigrant detainees with mental disabilities who are facing deportation.

The case concerned a green card applicant who had an I.Q. below 55 and the cognitive abilities of a young child, but who had been arrested after getting into the middle of a fight between rival gangs. While the immigration judge found him incompetent to face proceedings, the lack of a right to free representation put him into legal limbo, and he sat in detention for nearly five years.

This right to counsel is obviously quite limited, and will take some time to fully implement. However, if you know someone facing deportation, or in detention, who has limited mental abilities, get in touch with an immigration lawyer or a nonprofit charitable organization serving immigrants.

Checked Your Diversity Visa Lottery Results Yet?

Tickets in a basketThe results of the “DV-2014″ Diversity Visa Lottery (also called the “Green Card Lottery”) are now available, as of May 1, 2013, from the U.S. State Department. Winners will not receive any calls, emails, or other communications advising them — they need to go online and check the results themselves. (In fact, if you’ve received any calls or emails claiming you’ve won, it’s probably a scam, so watch out!)

For detailed instructions on finding out whether you have won, see the “How Will You Know If You Have Been Selected for the DV Lottery?” article on Nolo’s website. And if you have won, you’ll need to act quickly, so be sure to read, “How to Read the Diversity Visa Lottery Cutoff Numbers on the DOS Visa Bulletin” and other articles on the “Diversity Visa Lottery Green Cards” page of the Nolo website.

If you didn’t win this time around, I’d like to wish you better luck next year — except that there may not be a next year. The current, Senate version of proposed comprehensive immigration reform would eliminate the DV lottery in favor of other grounds of immigration eligibility.

 

Yes, Tamerlan, You Narrowly Missed Being Deported for Domestic Violence

A couple of people who read my recent blog called “Tamerlan Tsarnaev’s “Battered Dream” Was Self Inflicted” wanted more information on whether and under what circumstances an immigrant can be removed from the U.S. (deported) for committing domestic violence. (As you’ll see in that blog, the alleged older Boston Marathon bomber was apparently arrested in 2009 arrest for assaulting his girlfriend, though the charges were ultimately dismissed.)

The short answer is that, so long as the person was actually convicted, U.S. immigration laws come down hard on domestic violence crimes. The person may be deported under any of a number of sections of the federal immigration statutes, and likely barred from returning to the U.S. for a good long time, perhaps permanently. For more information, see this new article on the Nolo website: “Is an Immigrant Convicted of Domestic Violence Deportable?