The Supreme Court recently held that the Defense of Marriage Act (section 3) is unconstitutional. In so doing, they took away the only thing standing between same-sex married couples and immigration benefits. Almost immediately after the decision, the Department of Homeland Security, US CIS, and the Department of State all indicated that they would begin considering family-based immigration petitions for same-sex married couples provided that their marriages were valid in the location where celebrated. That means that if a couple in Missouri went to get married in Iowa, then return to reside in Missouri (a state with a very specific ban on same-sex marriage) they would still be considered married for immigration purposes.
In fact, the Director of US CIS, Alejandro Mayorkas, stated at the AILA annual convention in San Francisco that they had in fact kept track of all denied petitions dating back to February 2011 (when the President announced his administration would no longer defend DOMA), and they would take action on them soon - leading us to believe US CIS would reopen them on their own.
The first green card approved was for a couple in Florida who were married in New York. Because their case was still pending at the time DOMA was struck down, they did not need to wait to get a petition on file, and did not have to have it reopened.
We are now days away from filing our first case for a same-sex married couple and could not be more excited for them. One thing to keep in mind is that married couples have to prove that their marriages are bona fide, which for couples in states which do not recognize their marriage, this can be tricky. Being creative with evidence to establish the bona fides of the marriage is important, and something we take great pride in.
So to follow up with a previous post, both of these cases were subsequently approved by the Immigration Court after the Department of Homeland Security's Office of Chief Counsel decided not to contest the cases further and in fact agreed to a grant of relief for each of these individuals. We could not be more pleased with the result for both.
Additionally, we have also received another win from the Board of Immigration Appeals in a case where another attorney won Cancellation of Removal for someone, but then the government appeal to the BIA arguing that because they admitted they were alcoholics, they were barred from a grant of relief as a "habitual drunkard." As we explained to the Board, the mere fact that someone admits their alcoholism exists is not the same as the standard required for a finding that someone is a "habitual drunkard," which is comically defined as someone who is habitually habitually drunk. In any event, that case was also sent back to the Court for background check completion, and we are hoping that he will also be approved without need of any further hearings.
Hearing screams of joy on the other end of the line never gets old. This week we won two appeals from the Board of Immigration Appeals. One is for a detained man who will now get a chance to *hopefully* be approved for cancellation of removal as a permanent resident. In that case, the Judge had already indicated that but for the legal issue the BIA reversed her on, she would have approved him for cancellation of removal - which would allow him to remain in the United States as a resident, even though he has removable (deportable) criminal offenses. The legal issue dealt with the federal drug laws and how they make a second simple possession offense an Aggravated Felony (which render a resident ineligible for cancellation of removal). This may seem ridiculous, but its true. At trial, we had argued that because the second possession arrest was before he had been sentenced on the first, he was not a recidivist, and therefore not an Aggravated Felon. The BIA agreed with our argument and sent it back to the Judge to consider her claim for relief from removal, now that his eligibility had been resolved. The worst part of this case for him and his family is that he is detained under the Mandatory Detention law which makes anyone with drug convictions ineligible for release on an immigration bond.
The second case we won at the BIA this week was an asylum case where there was no question that the alien suffered unspeakable abuse in her native country. I honestly can’t even describe what happened to her here - I hated making her relive it to prepare her for trial, and I don’t like thinking about it myself. However, simply suffering atrocities is not enough for asylum protections. One has to show that the abuse was at the hands of the foreign government or a group the government can not or will not control, and that it was on account of one of the enumerated grounds: race, religion, national origin, membership in a particular social group, or political opinion. In her case there was also a threshold issue - asylum cases have to be filed within a year of arriving to the US. We were able to convince the BIA that because she had been unable to apply for asylum with her family, and her husband’s case listing her as a derivative was denied, she falsely believed she couldn’t file on her own. Because she filed within a few months of being told by a competent attorney that she could file on her own, the BIA found her application timely. Again, I don’t want to say too much about the facts, but the BIA also overturned the court’s decision that the horrors visited upon her were not on account of one of the enumerated grounds.
The sound of shrieking, happy clients is music to my ears. Not every case turns out like this, making the unlikely victories all the sweeter.
The Bill has a lot of enforcement provisions, but the most important part to those currently without immigration options is the creation of Registered Provisional Immigrant (RPI) status which allows those here prior to 12.31.2011 to apply for RPI status, to remain in the United States and obtain employment and travel authorization. Those with RPI can also get social security numbers and enlist in the Armed Forces, should they be so inclined. RPI status is good for 5 years, and can be extended for 5 years. After those ten years, and depending on the border enforcement provisions being successful, those on RPI status can apply for permanent residence based on family, employment, or other bases. Again, for tonight, I won’t be getting into the family, business, and other categories for permanent residence, just the RPI status itself.
In order to be eligible for RPI, you have to:
There are a number of bars to eligibility, including:
Someone applying for RPI is NOT barred by any of the following:
Convictions do not include expunged or set aside convictions, which is a change from current immigration policy which is much more restrictive on when a conviction is no longer effective to impact immigration status.
Spouse and children of RPI applications can also apply and are eligible if:
RPI applications have to be filed within a year of enactment, but that can be extended for 18 months. This certainly has to be an amendment before enactment. It is simply unreasonable to assume that so many millions of people will apply in the amount of time allowed for. I would expect them to amend the language to allow for 18 month extensions (more than 1).
Another provision that I hope is amended for clarity is the requirement for applicants to pay back taxes. The language of the bill is not very clear. It says: “all federal income taxes assessed.” I am unsure whether this means that you have to pay all taxes for income when you were authorized to work, when it was reported to Social Security, or just any taxes for any years in which you earned any money. Not being a tax expert, I can’t comment on this further, except to say that it will have to be clarified.
There are some repetitive sections about removal proceedings for RPIs, essentially saying that those with RPI applications can not be removed while the application is pending, and that those who are in proceedings, have been ordered removed, have left pursuant to a removal order or Voluntary Departure, and even those who returned without authorization after such a departure, can not apply for RPI, but all of that can be waived if they are the parent, spouse, or child of a US citizen or LPR, and for DREAMERs. For those who were in removal proceedings and then were granted RPI status, they can file a Motion to Reopen which SHALL be granted unless 1 or more ground of ineligibility is proved by the government by clear and convincing evidence.
Another key section says that Employers who know an alien has applied for RPI or will apply once it becomes available will not be found to violate the employment enforcement provisions for allowing them to continue to work without authorization. This should, if it can be explained to employers, result in RPI applicants not losing their jobs when their status or lack of authorization comes out.
RPI status is good for five years, and can be extended for five years, but the applicant must show that they have been employed throughout the process except for up to 60 days at a time of unemployment, or have financial resources up to 100% of the poverty guidelines, or simply fall under the DREAMER provisions, and of course you must show that you paid all taxes during those five years. This is important, because those with RPI are NOT eligible for public benefits.
RPI status can be revoked at any time if the alien is no longer eligible (most likely criminal grounds), if they committed fraud in the application process, if they were gone for 180 days at once or in the aggregate unless it was because of circumstances beyond their control.
Some related provisions are that anyone (RPI, LPR, etc.) who is convicted of 3 separate DUIs will be inadmissible to the US, ineligible for RPI, and deportable. This is the first time such a provision will be enacted, though those familiar with DACA will see that the government has started placing a higher priority in cracking down on drunk driving.
Normally, at the Kansas City Immigration Court, it takes a month or longer to get a trial date scheduled for people who are detained (can be 18 months for non-detained cases). Last week, we had a scheduling hearing on Thursday and asked for the next available time. The Judge graciously gave us her next opening, in six days. Therefore, our employees had to cram a month’s work of work into just six days (of course it was really only 4 because of the weekend). Today we won that trial, and he is home with his family.It was so important to him to get home as quickly as possible, because he was separated from his 8-year-old daughter who needed him and was developing stress-related emotional and physical ailments because of his being detained by immigration. Tonight he could tuck her in, or read her a story, or just sit and be with her for the first time in weeks.
I am incredibly proud of our staff who worked at break-neck speed to get all of the documents prepared. In all of our materials we indicate that we handle emergency cases and this is just another example of our staff pulling together to get a tough job done, and done well, in almost no time at all.