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Congratulations to the National Center for Transgender Equality: Let’s Hope ENDA Does Better than CIR!

13 Nov

Our moment

Last night, Jen Cook and I went to the National Council for Transgender Equality’s  (NCTE) 10th Anniversary event.  The evening was themed “Our Moment,” reflecting the organization’s intention to build upon the successes of the gay rights movement in the past year, including the repeal of Don’t Ask, Don’t Tell, the Windsor decision, and the many states that have enacted gay marriage.  In fact, even as the party went on, the festivities were interrupted to announce that Hawaii became the 16th state to allow for gay marriage.  As acceptance of full rights for gays and lesbians has grown tremendously over the past few years, acceptance of the essential humanity of the transgendered has not moved as quickly.  There have been victories- the Affordable Care Act provides increased access to needed medical services to transgender individuals, transgender individuals such as Chaz Bono, Laverne Cox, and Lana Wachowski have upped awareness of trans issues in our culture.  Even Chelsea Manning has forced us to confront the dilemmas facing trans people in the military and in prison.

There was palpable excitement in the room last night.  Last week the Senate passed the Employment Non-Discrimination Act (ENDA), which would make it illegal nationwide to fire or discriminate in employment issues against someone for their sexual orientation or gender identity. Employment discrimination against trans individuals is a serious problem, with 90 percent of trans individuals reporting that they suffered some form of employment discrimination in their lives.  The Senate ENDA bill is termed “trans-inclusive,” because it has expressly included discrimination protections for transgender individuals, whereas previous incarnations had sacrificed the “T” in GLBT as protections for trans individuals were just a bridge too far for some.  But this years ENDA is trans-inclusive and is now headed to the House of Representatives.   As immigration lawyers, our hearts sank as we heard people express optimism over the chances for its passage in the House.  Over the last four months, we have watched as the House has run out the clock on immigration reform.  Even after being confronted by young activists who brought their plights to him over breakfast, Speaker John Boehner made it clear today that no immigration legislation is moving this year.

 

If anyone believes that House members can be moved by hearing the personal stories of those effected by our terrible immigration laws or due to employment discrimination because of gender identity, Boehner’s cold response to these teenagers who spoke truth to power should put that notion to rest.  George Washington called the Senate the “cooling saucer” because it was meant to temper the excitable House of Representatives.  That role has changed and a group of 40 Tea Party Republicans in the House can stymie the hopes and aspirations of immigrants and trans men and women.  It is truly ironic because both pieces of legislation easily passed the Senate and would easily pass the House if the speaker would just bring it to a vote.  Yet, the Speaker cares more about the needs of his 40 Tea Party members than he does the suffering of 11 million immigrants or the need for employment discrimination protection for vulnerable minorities.

Our involvement in trans issues began when young trans women came into our office and asked us to help them apply for asylum.  Most had come from Central America and they all had stories of beatings, rapes, and rejection by their family.  They braved smugglers and human traffickers to make it to the U.S., where they found a chance to be themselves.  We have been able to obtain asylum for dozens of transgender individuals and not just from Central America.  Persecution of the non-gender-conforming is a worldwide pestilence.  To hear and know their stories and their bravery in leaving their homes under dangerous circumstances to have a chance to simply be themselves fills us with great admiration and respect for these individuals.  Their needs are far more fundamental than a job.  They come to America to be who they are.  It all starts there.  Over the years of representing trans individuals in asylum and then for green cards and, ultimately, citizenship, we have watched them grow into themselves, get stable employment, start relationships and family, and give back to their communities.  To watch a human being develop to her potential is like watching a flower bloom.  You can never grow tired of it.

The NTCE has done tremendous work to bring trans civil rights to the forefront of the political arena.  Like immigration reform, I am confident that full civil rights for trans people will occur in the future.  Last night, we heard from 33 year old Dylan Orr, a White House appointee, and 23 year old Sarah McBride, a political activist, about their professional experiences as a trans man and trans woman respectively.  They are the future and that gives us confidence and joy.

Board of Immigration Appeals Affirms Same-Sex Marriage

20 Jul

Earlier this week, the Board of Immigration Appeals affirmed the sweeping-change in immigration law that the Windsor decision ushered in.  In Matter of Zeleniak, 26 I.&N. Dec. 158 (BIA 2013), the Board recognized that Section 3 of the Defense of Marriage Act (DOMA), found unconstitutional by the Supreme Court in Windsor, was not an impediment to recognition of same-sex marriage by immigration authorities.   In Zeleniak, U.S. citizen Serge Polajenko filed an immigrant partner for his husband, Oleg Zeleniak.  The Citizenship & Immigration Service (CIS) found that the couple had a legal marriage in Vermont, but denied the petition, citing Section 3 of the DOMA.   On July 17, 2013, the BIA sent the case back to the CIS stating that the CIS should only consider whether the marriage was entered into in good faith.  Thus, the BIA affirmed that Section 3 of DOMA, as a result of Windsor, was no longer an impediment to approval of a petition by U.S. citizen on behalf of his same sex husband, so long as the couple was married in a state where same-sex marriage is legal.

The BIA went further than the immediate issue at hand and sought to identify those areas of immigration law that are impacted by the Windsor decision.  The BIA stated:

The Supreme Court’s ruling in Windsor has therefore removed section 3 of the DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated. This ruling is applicable to various provisions of the Act, including, but not limited to, sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status), 8 U.S.C. §§ 1101(a)(15)(K), 1153, 1154, 1157, 1158, 1182, 1227, 1229b, and 1255 (2012).
Ironically, the BIA’s decision appeared the same day that former Attorney General Alberto Gonzales resurfaced from ignominy to publish a wholly unnecessary and surly opinion in the New York Times stating that Windsor did not compel immigration recognition of same-sex marriages.  Relying on 1982 decision of the 9th Circuit Court of Appeals, the former Attorney General stated that Congress did not intend to cover same-sex spouses when it used the term “spouse” in the 1952 Immigration & Nationality Act (INA).  As a lawyer who has tried to cite 9th Circuit laws in other parts of the country, I am well aware of the limited reach of a decision of a single appeals court.  You would think that the former Attorney General would be as well.  It is important to keep Mr. Gonzales’ point-of-view in mind, however.  Under our system, the Attorney General has the authority to overrule the BIA on any matter of immigration law. Which is why it is important that Mr. Gonzales, thankfully, no longer occupies that post.

Equality Under Immigration Laws Being Implemented and Realized

1 Jul

Popov-Marsh

The Supreme Court rocked the world last week by declaring Section III of the Defense of Marriage Act (DOMA) unconstitutional on equal protection grounds.  Section III forbade the federal government from recognizing same-sex marriages.  Thus, a legal same-sex marriage entered into in New York was valid under NY law, but did not provide the married couple with any federal benefits.  Activists have identified over 1100 ways that federal law provides a benefit to a married couple, all of which were unavailable until Wednesday, June 26, when Section III of DOMA was officially bid adieu.  Among the benefits now available to couples in same-sex marriages are a multiplicity of immigration benefits.  Of paramount importance in these benefits is the right of a United States citizen to sponsor her foreign spouse for residence.

Things have moved awfully fast since last Wednesday.   Shortly after the decision was announced, the White House stated, “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.”  The same day, Janet Napolitano, Secretary of Homeland Security who oversees immigration matters for the U.S., stated, “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”  On Thursday, US CIS Director Alejandro Mayorkas was ready at the American Immigration Lawyers Association conference when he was asked about DOMA.  Director Mayorkas informed the audience that the CIS has maintained a list of all denied same sex marriage cases since the Administration stopped defending DOMA in the courts in February 2011 and that CIS was “prepared to act,” in implementing the law.  By Friday, the first same sex marriage petition was approved by the U.S. CIS.  That is the happy couple above in matching shirts and beards.  Also, on Friday, outstanding immigration lawyer Matt Kolken was notified by CIS Director Mayorkas that the agency would no longer fight a denied same-sex petition on appeal by one of Matt’s clients.

Windsor

Then, over the weekend, it was PrSFide, and lots of joy occurred.  Edie Windsor, whose fight with the IRS over taxes on her deceased wife’s estate was the knockout punch for DOMA, served as the Grand Marshal of the NYC Pride parade and BR lawyers in San Francisco got into the spirit as well.

And, just today, Monday July 1, 2013, Secretary Napolitano issued the following statement: “After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.  To that end, effective immediately, 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.” The DHS also published two questions and answers.  First, the Department announced that individuals in legal same-sex marriages may file I-130 immigrant petitions on behalf of their foreign spouses and that those petitions would be handled identically to the opposite-sex petitions that CIS has long adjudicated.  In other words, gay married couples will have to demonstrate that they are legally married (no other marriages, marriage performed in a state that recognizes gay marriage) and that they are engaged in a bona fide marriage.  A bona fide marriage may be demonstrated by a shared residence, joined bank accounts, credit cards and insurance, knowledge of the other spouse, photos and other objective evidence.  Second, the CIS clarified that what is important for CIS’ recognition of a same-sex marriage is the law of the place where the marriage was performed and not where the petitioner and beneficiary live.  This means that a couple married in California (that’s right California now has gay marriage thanks to the other Supreme Court case that day on Prop 8), but living in, oh, let’s say our favorite whipping boy among the states of the union, Arizona, can have their marriage recognized by the federal government in immigration matters even though Arizona does not recognize it.  With extremely limited exceptions, the law of the state where the marriage took place is the law that matters for CIS recognition.  While questions remain about the implementation, we congratulate the Department on moving quickly to receive and approve same-sex marriage-based petitions.

The law has, once again caught up to the culture.  In law school, we read Bowers v. Hardwick, which upheld the right of a state to selectively prosecute homosexuals under state sodomy laws.  Now, less than thirty years after the shameful Bowers decision, (which was itself obliterated by the Supreme Court in Lawrence v. Texas by the pen of the same Anthony Kennedy who played hangman to DOMA), the Supreme Court has taken an enormous leap into helping this country realize its rhetoric of individual freedom and equal justice.

CIS is now accepting and approving marriage petitions by same-sex couples and it took less than a week.

 

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

27 Jun
English: West face of the United States Suprem...

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.

How would a Supreme Court ruling striking down DOMA affect immigration?

27 Mar

Theya & Edie

One of the biggest immigration cases of the current Supreme Court terms is not about immigration at all.  Today, March 27, 2013, the Court heard arguments in U.S. v. Windsor, a case that is about the validity of a same-sex marriage and its recognition under U.S. law.  In 2007, Edie Windsor married her longtime partner, Theya Speyer in Canada, which allows same-sex marriage.  When Speyer died in 2009, Windsor was hit with a $363,000 tax bill that she would not have been required to pay if Speyer had been a man.  Federal law passed in 1996, the Defense of Marriage Act (DOMA), prohibited the federal government from recognizing Windsor and Speyer’s marriage and disallowed Windsor from claiming an exemption to the federal estate tax.  Windsor sued and prevailed in the U.S. Court of Appeals for the Second Circuit.  The government, now being represented by conservative members of the House of Representatives because the Justice Department refuses to defend the Act, sought Supreme Court review and the Justices heard the case today.  A decision is due by June.  According to Supreme  Court guru and editor of the SCOTUSblog.com, Tom Goldstein, there appears to be the votes to invalidate DOMA.  Given our confidence in Tom Goldstein’s analysis, we provide our own analysis how the demise of DOMA would affect immigration law.

First, DOMA prohibits the federal government from recognizing same-sex marriages legally performed in U.S. states.  Currently, there are nine states, Massachusetts, Connecticut, Vermont, New Hampshire, Maine, New York, Iowa, Maryland, Washington and the District of Columbia, that allow same-sex couples to get married.  Presumably some of those marriages would be between an American citizen and a foreign national.  However, while an American citizen can file an immigrant petition on behalf of their foreign national opposite-sex spouse, DOMA prevents the approval of an immigrant petition by an American citizen in a same-sex marriage.  Although the marriage between the two men or two women is perfectly legal in the state in which it was performed, DOMA relieves the federal government from recognizing that marriage.  Therefore, a U.S. citizen can not sponsor their foreign same-sex spouse for residence.

The inability of a U.S. citizen to sponsor their foreign spouse has led many binational couples to pursue very unconventional solutions to live together in the U.S. We have seen individuals take the long, difficult and expensive route to seek their residence because the simple path is foreclosed.  In addition, we have seen adoptions between partners, the establishment of businesses to bring their spouse-employee to the U.S., and desperate resort to fake marriages.  When a law causes good people to break the law, there is often something wrong with the law.  If DOMA is struck down, a U.S. citizen could file an immigrant petition on behalf of their same-sex spouse and have the same expectation of approval as a heterosexual couple has.

Second, same-sex spouses could serve as “qualifying relatives” for relief from removal.  Foreign nationals facing removal often can seek to avoid removal by applying for relief from removal.  Many of these forms of relief require a demonstration of hardship to a U.S. citizen or permanent resident spouse.  In the past, one member of a same sex couple could face removal and not be eligible to apply for relief due to the absence of a spouse, regardless of how long that individual were in a relationship with an American of the same sex.

Third, it may help multinational corporations transfer employees more easily.  U.S. law provides for temporary visa for foreign employees needed in the U.S.  Spouses and children of the foreign employee are entitled to derivative visas.  However, same-sex spouses do not get the same benefit and key employees do refuse transfer to the U.S. due to the inability of their same-sex spouse to join them.  DOMA’s prohibitions deprive U.S. business of workers they have determined they need.

DOMA’s demise would be a very good thing for the development of immigration law.  The pernicious effect of DOMA on the lives of thousands of Americans and their partners/ spouses has led Immigration Equality, the nation’s leading LGBT immigrant rights organization, to file suit on behalf of five gay binational couples challenging DOMA in the immigration context.  Those cases are on hold pending the Supreme Court’s decision in Windsor.  We are hopeful that the Supreme Court makes the Immigration Equality suits moot.