Post-DOMA – How Can LGBTQ Individuals Benefit Under Current Immigration Laws?

The Supreme Court has found, in a 5-4 decision, that the Defense of Marriage Act is unconstitutional. (Photo credit: Wikipedia)

Ding dong, Section 3 of the Defense of Marriage Act (DOMA), which limited federal recognition of marriage to a man and woman, is dead.

With the stroke of a pen, the U.S. Supreme Court has ended years of discrimination against gay and lesbian couples through its decisions in United States v. Windsor and Hollingsworth v. Perry. With DOMA now ineffective, marriage equality provides more than 1,100 federal benefits previously unavailable to same-sex spouses.

President Obama issued an immediate directive to 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.”

The Secretary of Homeland Security, Janet Napolitano also issued a statement to press confirming that DHS is “working with our federal partners, including the Department of Justice, [to] implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

There are more than 24,000 American same-sex binational couples, but the immigration consequences of the Supreme Court’s decision to strike down DOMA goes beyond simply conferring green-cards to bi-national couples, and even affects step-children, adoption issues, derivative citizenship, and so on.

Some of the benefits that USCIS can promulgate immediately, without the need for new regulations or rule making, include:

• Plain old adjustment of status to green card holder or consular processing and entering as lawful permanent resident;
• Eligibility for provisional waivers for persons who entered without inspection;
• Eligibility for I-601 hardship waivers for persons who were deported or left the country and triggered a 3/10 year bar;
• In the special case of DACA beneficiaries who are queer, if they can obtain advance parole to travel under DACA, in theory, when they re-enter the U.S., they should be able to adjust their status through marriage to a U.S. citizen spouse (assuming no prior deportation);
• Immigration benefits for step-children from a same-sex marriage;
• Availability of waivers based on relationship to U.S. citizen spouse during removal defense including cancellation of removal, 212(h), and so on;
• Relief under the Violence Against Women Act for battered spouses of U.S. citizens;
• Derivative immigrant and non-immigrant visas, for legally-wed spouses including L-2; H-4, most E and EB categories and so on so that foreign-born and/or binational same-sex couples can actually live together in the U.S.;
• Motions to reopen cases with final removal orders, so persons who were previously ineligible for relief can now assert it in court;
• Lawful permanent residency for persons who receiving withholding of removal, who now have U.S. citizen spouses.

That’s just a few examples. However, not everything is fine and dandy in the world, with DOMA gone. 

Problems that remain

• Enforcement – USCIS has not yet started issuing green cards for same-sex binational couples, or recognizing them as eligible for other benefits and waivers, but this is just a matter of time;
• As immigration law recognizes a bona-fide marriage based on “place of marriage,” people who are too sick or poor to travel to one of the few states that provide for same-sex marriage lose out. A creative solution would perhaps be to figure out how video-conferencing technology can enable marriage of a couple stuck in an anti-marriage state or country;
• Asylum seekers cannot get follow-to-join benefits for their partners left behind in countries with despicable LGBT human rights records. A creative solution for this may be enabling asylum seekers to gain humanitarian parole for a partner;
• People detained in anti-marriage-equality states would also be left to fend for themselves. While this is true for even straight people, LGBT persons are much more vulnerable in detention;
• Bigoted consular processing officials who reveal the sexual orientation of an applicant to their relatives in the foreign country, thereby putting their lives at jeopardy in their home countries;
• Bigoted case officers in the U.S. – Now LGB couples can enjoy the misery that straight couples go through at marriage-based interviews and perhaps, withstand a lot more scrutiny than their heterosexual counterparts (i.e. answering questions like “Who is the man in the relationship?”);
• Persons who have remained closeted, who come out and claim marriage benefits such as health insurance, may be subject to employment sanctions and workplace discrimination, which remains entirely legal without a trans-inclusive Employment Non-Discrimination Act;
• For decades, LGBT persons have been evading border controls in creative ways. Those ways may come back to bite in some instances, especially where LGB persons have committed marriage fraud by marrying straight persons for papers. There are, of course, several defenses, and one should seriously consider exploring all their options with an immigration lawyer experienced in litigation and removal defense. It is critical to note here that simply marrying to gain an immigration benefit is not fraud — fraud is triggered when papers are filed to get a particular immigration benefit.

I’m sure people have many questions and are seeking more practical knowledge for their individual cases. As such, I’d implore people to join Immigration Equality’s Legal Director Victoria Neilson, and Binational Couples Attorney, Tom Plummer, for a special, 90-minute conference call today at Noon Eastern. Immigration Equality, where I am a Board Member, is the only non-profit organization in the United States that provides direct legal support to LGBT immigrants, and can also refer individuals to immigration lawyers across the country. 

To join the call, dial
(800) 868-1837
(404) 920-6440 if you are outside the United States
and use access code 397548#

The IE legal team has posted answers to preliminary questions on their website. You can read those online here.

P.S. In the excitement that ensued from yesterday’s ruling, my own same-sex U.S. citizen partner proposed to me. You can read that story here.

Thomas Ragland to be Honored at National Immigration Lawyers Conference

On Thursday, June 27, 2013, the American Immigration Lawyers Association (AILA) will bestow its highest annual honor, the Edith Lowenstein Memorial Award for excellence in advancing the practice of immigration law, to our very own Thomas Ragland.  AILA is the most comprehensive and significant professional organization of immigration lawyers, comprising more than 11,000 lawyers practicing U.S. immigration law around the globe.  For the past 22 years, AILA has awarded the Lowenstein award to the lawyer who has most positively impacted impacted immigration law over the past year.  Thomas is being recognized not only for his recent important victories in Congress  and in federal courts, which have provided significant benefits for immigrants nationwide, but also for his leadership of AILA’s National Federal Court Litigation Committee, which helps lawyers around the country improve their litigation skills and share knowledge and efforts in advancing immigrant rights in the courts.  In honoring Thomas, AILA wrote, “He has done much to promote aggressive, careful and competent litigation to counter irrational and abusive decisions by the government.”

Thomas was nominated for the award by his fellow AILA members.

• Denyse Sabagh wrote: “He is truly  outstanding  and most deserving.  He is the consummate litigator.  He leaves no stone unturned and is dogged in his pursuit of justice and getting the right results for his clients. His work in the Waheed case and the Akinsade and Abusamhadeneh litigation have been excellent.  These were extremely difficult cases and Thomas’ litigation skills won the day.  His work not only benefited the clients but created decisions which are beneficial to us all.”
• Joe Hohenstein from Philadelphia wrote: “Thomas is a tireless litigator, I have no doubt that he is one of the most – if not the most – astute immigration practitioners in the United States today.  I am impressed with the way in which he has managed several complex cases along with increased duties for AILA on a national level – not to mention being a partner in his own firm. The thing I most appreciate about Thomas is that he has the exactitude of an engineer and the soul of a philosopher.”
• Many Vargas and Isaac Wheeler of the Immigrant Defense Project wrote: “The Immigrant Defense Project enthusiastically supports Thomas Ragland’s nomination for the Wasserman award.  Thomas has done pathbreaking work in the field of criminal immigration law.  His outstanding advocacy on behalf of A.Waheed contributed significantly to the Fourth Circuit’s decision in Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012) striking down Matter of Silva-Trevino.  His ceaseless efforts for Akinsade resulted in important precedential victories in not one but two circuit courts, a truly impressive accomplishment.  IDP has also sought Thomas’s wise advice in other criminal immigration litigation and benefits from his valuable contributions to national litigation strategy discussions through the AILA federal litigation section, the AIC national litigation strategy network, and other fora.  He richly deserves recognition for his superb work and commitment to the rights of the some of the most vulnerable and disadvantaged noncitizens.”
• Rekha Sharma-Crawford of the Kansas City Sharma-Crawfords wrote: “Thomas has been a leader in litigating complex, cutting edge issues while being a passionate advocate for a fair and reasonable interpretation of the immigration laws.  His dedication to his community and his clients is out shined only by Thomas’ commitment to his colleagues in helping them reach their full potentials.”
• Bob Pauw, a scholar on representing individuals before the courts wrote: “His work in the Akinsade litigation and the Waheed case has been of the highest caliber and has provided benefits not only to his own clients but to many other non-citizens as well.  In addition, through his work as chair of the Federal Court Litigation Section he has provided assistance and guidance to other litigators throughout the country.”
• Jeff Joseph from Colorado wrote: ““Thomas is one of the most prominent immigration litigators in AILA’s ranks.  We are so blessed to have stolen him from OIL.  He is known for taking on the most complex and challenging issues and has a track record of success.  He has also taken on leadership of the federal court litigation section and the very active list serve and has grown the section into an enormous success.”
• Scott Pollock from Chicago wrote: “In addition to his successes in the federal courts and steering the Federal Litigation section, he is always available to mentor other litigators.  He has participated as faculty for several AIC litigation institutes.  All in all, he has done a great job to promote aggressive, careful and competent litigation to counter irrational and abusive decisions  by the government.”
• Erich Straub of Milwaukee wrote: “I have taught with Mr. Ragland at AIC’s Litigation Institute, and I have presented with him at other immigration CLE’s.  What impresses me so much about him in those contexts is that he is able to clearly and concisely communicate how he litigates to other practitioners.  His courtroom victories speak for themselves, but his constant commitment to making other attorneys better is what makes me confident that he is having a much deeper, longer lasting impact on the immigration bar and litigation.”

Thomas’ dedication to precise, incisive, and intelligent lawyering distinguishes his practice in a field where many are content to settle for “good enough” representation. Thomas craves complexity, welcomes the last-ditch effort where all other lawyers have failed, and wields a mighty red pen.  He recognizes that clarity and details matter – on paper or in oral argument, Thomas’ words are chosen with surgical precision. And like surgical patients, his clients quite literally owe him their lives.

At Benach Ragland, we are proud and lucky to have Thomas on our team.  We learn from him everyday and are inspired by his meticulous strategy and execution.  We appreciate his friendship and his quiet and steady intensity to serve our clients to the best of his ability.

Congratulations Thomas!  We love you!

Arizona loses again, but its citizens win

Today, the Supreme Court ruled 7-2 in Arizona v. Inter Tribal Council of Arizona, Inc. that the state of Arizona cannot separately require an individual to prove he is a citizen in order to register to vote beyond the regulations set forth by the federal government.  This decision stated that Arizona’s additional “proof of citizenship” form was contrary to the National Voter Registration Act, the federal law establishing a specific form for Voter Registration.  The Court held that this form was sufficient evidence of citizenship without additional proof and on that basis struck down the Arizona law requiring a registering voter to prove he is a citizen.

Although this case was decided under the Elections Clause, where federal law always trumps state law, this is an important decision for those who have had to jump over additional unconstitutional hurdles, simply due to the biases of those who enact and implement Arizona’s laws.  No longer will citizens of Arizona be forced to jump through legal hoops that the Federal Government does not require.  We are hopeful that this reasoning will extend to other states and legislation that has placed additional burdens and barriers on individuals beyond what is required and permitted by the Federal Government.  Although Jeffrey Toobin did not think there were any major Supreme Court decisions today, Benach Ragland believes the enfranchisement of the voters of Arizona is major indeed.

The Supreme Court’s rejection of the theories offered by Arizona officials is another black mark against the litigation strategy the State of Arizona has embarked upon.  In the last year, this is Arizona’s second major defeat at the Supreme Court.  Less than a year ago, the Supreme Court knocked down Arizona’s SB 1070, the “show me your papers” law in Arizona v. United States.   Earlier this month, a federal judge in Phoenix ruled that Maricopa County Sheriff Joe Arpaio had systematically violated the civil rights of the Hispanic citizens of the United States.  While the Sheriff has expressed his intent to appeal, Arizona citizens are questioning the use of state funds to pay for ineffective and hubristic litigation.  How much money has been spent by Jan Brewer and Joe Arpaio to defend indefensible policies?  In  the era of the sequester and failing schools, can Arizona afford Jan Brewer’s and Joe Arpaio’s ego trips to court?

PS- I took this picture myself!  – ACB

A Saturday with CASA de Maryland

On Saturday, June 15, BR team members Andres Benach, Sandra Arboleda, and Mariela Sanchez-Odicio spent the morning at CASA de Maryland in a free legal clinic in anticipation of immigration reform.  In these events, we are cast as the experts on immigration law, but I am sure that we learn so much more from greeting the community than we provide in legal advice.

CASA de Maryland is an outstanding organization and on the front lines of so many essential civil rights battles.  CASA has provided a safe place to hire day laborers where a wage can be negotiated and the impact on the community is minimal.  Moreover, they have educated the workers on their rights and provided them with tools to track their hours and maintain records in case of a wage dispute.  CASA offers English classes, health screenings, citizenship workshops, tax consultation and so much more.  They led the successful fight for the Maryland Dream Act and have mobilized thousands in support of immigration reform.  These efforts have made CASA a target of the anti-immigrant wingnuts who use every mention of CASA in the media as a chance to spread their venom.  Fortunately, these weak efforts have failed to deter, and have even invigorated,  CASA’s commitment to its mission.

On a beautiful Saturday, members of the immigrant community heard from county and state officials about the services available to them.  They heard from the police department of Prince George’s County that their mission was to protect the community and not to enforce immigration laws.   Children hit the moon bounce while their parents met with tax professionals, lawyers, nurses and financial advisers.  During my morning, I met eight people seeking legal advice.  All of them were from Mexico or Central America and had a similar sad story to tell: they left home as teenagers to escape poverty, violence or to help their families.  They had lived their adult lives in America, occupying the lowest rung of our society, doing hard work for scant pay.  However, all of them recognized that their sacrifices were for their children and that, maybe, this country would recognize that their values are American values and welcome them in to the greater community.  While I spoke to clients, Sandra and Mariela completed requests under the Freedom of Information Act to get copies of client files from the government.

A full morning of work and we were ready for lunch.  While CASA offered pizza, there was also the option of homemade pupusas.  Now, if you have not tried a pupusa, do yourself a favor and find one as soon as you can.  If you can not find a pupuseria, just find a weekend adult soccer game.  There are sure to be women selling pupusas on the sideline.

Hope was in the air on Saturday morning and a great and strong force for good was mobilizing.  It is hard not to be excited and hopeful for the country’s future after spending a beautiful Saturday in a beautiful community.

Prerna Lal on CSPA and de Osorio Update

Despite being on leave from Benach Ragland to study for the California bar, Prerna Lal continues to provide valuable insight on the status of the de Osorio case.  De Osorio is the 9th Circuit case in which the court held that the Board of Immigration Appeals and the U.S. Citizenship & Immigration Service had interpreted the Child Status Protection Act wrongly in a way that excluded thousands of young people from the opportunity to obtain status with their families.  The government has sought review of the de Osorio decision before the United States Supreme Court, which will decide by the end of June, whether it will hear the case.  From Prerna’s blog:

Attorneys for de Osorio filed an excellent reply brief to the DOJ’s petition seeking certiorari on May 24. Usually, the petitioners can file a reply brief within 10 days but it appears that the Department of Justice did not file a reply brief in de Osorio yesterday. They are not obligated to do so. As of now, the government’s petition for review of the Ninth Circuit’s decision has been distributed for conference on June 20. I believe SCOTUS will probably vote to hear this, but I’d love to be wrong.

Empirical analysis suggests that it is rare for the Supreme Court to deny hearing a case when the Solicitor General requests review. While I think that the appeal is without merit, and almost frivolous, it only takes a law clerk to place the certiorari petition in the pool for review and four Supreme Court justices to agree to grant review.

If the Supreme Court grants certioriari, as in, agrees to hear the case, which we will know by June 24, 2013, then the stay of mandate continues, and no one can seek adjustment of status (or a green card) under de Osorio until the Supreme Court hears the case. Persons under the jurisdiction of Fifth Circuit (Texas, Louisiana and Mississippi), who are in removal proceedings, continue to be eligible for relief under Khalid v. Holder. New briefs would be filed, oral arguments held, and the Supreme Court would have until the end of June 2014 to issue a decision.

If the Supreme Court denies review, then the stay on mandate is lifted, and de Osorio becomes law nationwide because it was certified as nationwide class action lawsuit (and hence, there are no circuit split issues).

I hope everyone separated from their parents or adult children, get to see their family members soon.

Much love.

Thanks for keeping this on the front burner, Prerna.  We will continue to keep you informed as the Supreme Court considers the case.

After Lengthy Court Battle, Client Sworn in as U.S. Citizen

Last Friday in Baltimore, Maryland, our client, Temitope (“Tope”) Akinsade, was sworn in as a U.S. citizen. Naturalization ceremonies are always gratifying, but this event was particularly moving in light of the government’s relentless and ultimately unsuccessful effort to deport Tope – who has been a lawful permanent resident for over 12 years. To know Tope’s story is to understand both the unfairness of our immigration laws and the charade that is ICE’s supposed policy on prosecutorial discretion.

A native of Nigeria, Tope came to the United States with his family as a 7-year-old in 1988. In 2000, at the age of 19, he pled guilty to a felony embezzlement charge after cashing three checks for some neighborhood toughs at the bank where he was working as a teller. Shortly after the incident, Tope reported the transactions to his supervisor and agreed to cooperate with the police and the FBI in their investigation. On the advice of his attorney, who assured him he would not be deported but would “become a citizen in five years,” Tope pled guilty to one count of embezzlement by bank employee. He was sentenced to one month in community confinement and three years of probation, which he successfully completed.

Believing the incident was behind him, Tope enrolled at the University of Maryland, where he earned a bachelor’s degree in computer science with honors. He stayed at Maryland to earn a master’s degree, receiving a full fellowship from the National Science Foundation. Tope was then offered a slot in a leadership program at General Electric, working in the company’s Global Research Center in upstate New York. For several years he worked for GE and traveled to and from the U.S. without incident.

Then, one morning in January 2009, Tope was arrested by ICE agents, charged with being deportable from the United States, and sent to a detention center in Batavia, New York. Authorities claimed that his embezzlement conviction qualified as an “aggravated felony,” which under U.S. immigration law means near-mandatory deportation. He was held for seventeen months before being released on bond. Although he had not been sentenced to prison for the underlying crime, Tope spent nearly a year and a half imprisoned by ICE, and he faced removal proceedings in immigration court without the right to an appointed attorney.

Over the course of many months, Tope’s case ground its way through the notoriously slow workings of immigration court. An immigration judge sustained the government’s claim that Tope’s embezzlement conviction in 2000 met the definition of an “offense involving fraud or deceit,” and thus an aggravated felony. As a result, he not only was found deportable but also declared ineligible for virtually all forms of relief – including cancellation of removal – despite having been a green card holder for nearly nine years. The Board of Immigration Appeals affirmed the immigration judge’s decision.

Tope then brought his case to the federal courts. He appealed the BIA’s removal order to the U.S. Court of Appeals for the Second Circuit in New York. At around the same time, he hired a criminal attorney to file a writ of error coram nobis in U.S. district court in Maryland, asking the court to vacate his embezzlement conviction based on the gross misadvice about immigration consequences he was given during his criminal proceedings in 2000. The district court judge found that Tope had received ineffective assistance of counsel, but ruled that he had not been prejudiced because the trial court gave a general warning during his plea hearing that if he was not a U.S. citizen, a conviction could lead him to be deported. Tope appealed the judge’s order to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. His fate now rested in the hands of the two federal appeals courts.

Tope’s fortunes finally began to change when Thomas Ragland took the case. Thomas filed briefs and presented oral argument in the Second Circuit, urging the court to vacate Tope’s removal order because the embezzlement statute under which he was convicted required proof of either an intent to defraud or an intent to injure – and the record of conviction was inconclusive as to Tope’s intent at the time of the offense. The government strenuously opposed these arguments, insisting that the conviction was clearly an aggravated felony and that Tope should be deported without delay. In May 2012, the Second Circuit issued a precedent decision agreeing with Thomas’ arguments that Tope had not been convicted of an aggravated felony, because both the immigration judge and the BIA had improperly inferred an intent to deceive in the commission of the embezzlement offense – which was not established by the record of conviction. In addition, given the relatively minor nature of the crime, the passage of time, and Tope’s exemplary achievements, the court also wondered aloud why ICE refused to favorably exercise prosecutorial discretion in the case. Finding that the government had failed to prove its aggravated felony charge, the appeals court vacated Tope’s order of removal.

At the same time, Thomas also briefed and argued the coram nobis appeal in the Fourth Circuit. In July 2012, the court sustained the appeal and reversed the lower court’s ruling, agreeing with Thomas’ argument that a trial court’s general warning about deportation consequences at the plea stage was inadequate to overcome an attorney’s specific (incorrect) assurances to his client that entering a guilty plea would not render him deportable. Thus, in another precedent decision, the Fourth Circuit vacated Tope’s embezzlement conviction altogether. Federal prosecutors urged the en banc Fourth Circuit to rehear the case, but their request was denied.

With a clean record – as both his removal order and his felony conviction had now been vacated – Tope submitted his naturalization papers last November. Several weeks after appearing with Thomas for an interview at U.S. Citizenship and Immigration Services, he was notified that his application had been approved. On Friday May 24, Tope took the oath of allegiance and became U.S. citizen.

Tope spent over a year in ICE detention based on a single conviction that did not result in any jail time, and which ultimately was vacated by the federal court of appeals. And the government relentlessly sought to deport him based on an aggravated felony charge that evaporated under the glare of judicial scrutiny. In the past two years, ICE has stated that its personnel will use “prosecutorial discretion” to judiciously manage its expenditure of resources in immigration proceedings. In a memo published in June 2011, ICE Director John Morton outlined a series of factors to be taken into consideration when deciding to exercise prosecutorial discretion. Among these factors was the length of time spent in the United States, particularly in lawful status, the pursuit of higher education in the United States, whether the individual entered the United States as a child, whether the individual poses a national security or public safety concern, ties and contributions to the community, and whether the individual has cooperated with law enforcement. All of these factors weigh in favor of an exercise of prosecutorial discretion for Tope Akinsade, yet ICE refused and instead aggressively and persistently sought to deport him. It was not until the Second Circuit ruled in his favor that Tope was assured that his conviction, later held to be constitutionally unsound, would not prevent him from remaining in the United States. Fortunately, the federal appeals courts were persuaded by legal arguments challenging both the BIA’s removal order and the U.S. district court’s denial of coram nobis relief. The law prevailed where ICE’s discretion and common sense failed. Tope Akinsade is a proud and deserving United States citizen.