We have been posting our updates/victories on our Facebook and Twitter sites. Please check them out to stay informed. While we are updating here though, we have recently received another Cancellation of Removal approval which is rarer now as the number of available approvals had been reached for most of the year, and apparently just opened up again, at least temporarily.
We are still seeing I-601A stateside waiver approvals rolling in which is just a terrific development for so many families. We are seeing fairly fast turn arounds at US CIS once they are on file, though the National Visa Center appears to be slowing down in response. Be warned on almost all of our consular processing cases we are getting letters from the NVC indicating that it will be 60 days before they respond to our submissions.
We recently received one of the first approvals for a same-sex marriage case in the Kansas City area. The couple has been together for years, but it has only been since the Supreme Court's decision in US v. Windsor that there has been the possibility for them to remain together permanently in the United States.
The process was fairly smooth, almost identical to what we are used to seeing in traditional marriage cases. Although there was some confusion on the part of the officer as to how to apply the different legal status of same sex marriage where the couple was married as opposed to where they live, the interview was almost without issue.
We have written about this issue in a few of our weekly articles being published in Dos Mundos, in our "Hablando con el Experto" section. Check out Dos Mundos each week for a new article.
The biggest news out of the Supreme Court this term has to be the death of DOMA. However, in the immigration context there were two other very important decisions that were handed down.
In Moncrieffe v. Holder, the Court decided that the courts must look to the state statute of conviction and not the underlying facts of the case. If the state statute criminalizes conduct which falls outside of the Controlled Substances Act (CSA), Felony definition, then it is not an Aggravated Felony. Importantly, the Court also held that any ambiguity in what the state statute criminalizes must weigh in favor of the “criminal,” not the government. This case is important not only for what it does to help save some immigrants from the serious consequences of possession charges being treated as Aggravated Felonies, but also for what it does to the way the Immigration Courts have too easily gone beyond the Categorical Approach.
Last year, the Board of Immigration Appeals decided Matter of Davey, in which they held that where someone has two counts in a conviction, for possession of marijuana and for possession of paraphernalia, where they both relate to the same incident, and also related to possession of less than 30 grams of marijuana, the “petty offense” exemption is available. Previously, multiple counts made someone ineligible for the exemption. Taken together, the negative consequences for immigrants with relatively minor drug related convictions have been significantly reduced.
We already had a case come up in the Immigration Court where someone was convicted of a possession offense, but because the statute didn’t address this exception in the CSA, he was not deemed to have been convicted of an Aggravated Felony, and was eligible for the relief requested.
In Descamps v. United States, the Court continued to chip away at the Modified Categorical Approach. The Court decided that where the statute someone is convicted under a statute that has a single, indivisible set of elements the courts may not look beyond that statute to the actual facts of the case to determine the immigration consequences for that conviction. The Court essentially chastised the lower courts for too eagerly going to the Modified Categorical Approach, and under Attorney General Mukasey’s Matter of Silva-Trevino decision, even further. The Court very clearly restated its position that the Modified Categorical Approach is to be used only in a narrow set of cases where it is necessary to determine which crime, among a series of potentials, the conviction is based.
In Lanferman, the BIA had decided that it could use the Modified Categorical Approach more widely in the immigration context than in the criminal context. It is clear that we still have future fights on our hands on this issue. Because they argue that immigration cases are different, it may be necessary for the Circuit Courts to address the applicability of Descamps in immigration cases if the Immigration Courts don’t follow the Supreme Court’s decision.
About a year ago, we were visited by a woman distraught that her husband had been arrested and detained by Immigration. He had two little girls who were born in the US, one who was still a baby, as well as two step-children. He also had no criminal history at all. After looking into his case, it turns out he had an old order of deportation from 2004, when he failed to appear at an immigration court hearing - which he had no notice of. Becuase of that old order, he was subject to immediate removal, and we had to act immediately or else he was to be put on a plane to be deported. We filed a motion to reopen his case with the Immigration Court, which was ultimately denied because he failed to provide a change of address, after being given instructions to do so. We also filed a motion to ICE to stay his removal, which was granted and he was released from detention. Simultaneously, we filed for a U visa, because he had been the victim of a violent assault (which required hospitalization), and he assisted the police in tracking down the criminal. Over the course of the next year, we had to fight with US CIS to prove his eligibility for the U visa. Recently, we received his U visa approval, which means he can remain in the United States, and in three years time, he can apply for permanent residence (green card). A U visa is very powerful, almost anything can be waived, and someone can be approved, even if they have an old order of deportation. Because of this, even though the Immigration Court refused to reopen his case, he will still be able to remain in the US with his family and someday potentially become a US citizen.
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.