Advanced Family Issues

In Immigration Law

Raed Gonzalez of Gonzalez Olivieri LLC.,

&

John Wheat Gibson Sr., of John Wheat Gibson P.C.

Presented By:

Defense of Marriage Act

• Defense of Marriage Act (DOMA) was enacted by congress and signed into law by President Bill Clinton on September 21, 1996.

• Section 3: DOMA; “In Determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers to only a person of the opposite sex who is husband or wife.”

United States v. Winsdor570 U.S. ____ (2013)

Thea Spyer married Edie Windsor after spending nearly 40 years together. Upon the death of Ms. Spyer, she left her estate to her wife, Edie Windsor. Because of DOMA, Edie was hit with a $363,000 tax bill by the IRS due to her inheriting her wife’s estate.

The Federal District Court and the Second Circuit Court of Appeals ruled in Favor of Ms. Winsdor. Attorney General Holder even issued a statement that the Department of Justice would no longer enforce Section 3 of DOMA because it was Unconstitutional.

The Supreme Court upon Petition for Cert, took up the case and issued an opinion.

Justice Kennedy“DOMA seeks to injure the very class New York seeks to protect. By doing so, it violates basic Due Process and Equal Protection principles applicable to the Federal Government….The Federal Statute [Section 3] is in valid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity..”

Marriage and Immigration Law

Same Sex Couples may now seek:

Adjustment of Status inside the United States

Consular Processing

Cancellation of Removal with a qualifying relative

Fiance Petition

VAWA self-petition

LitigationPost-DOMA

State Actions

There are now 37 States in the Union that have legal Same-Sex Marriage.

13 States still ban Same-Sex marriage either by Constitutional Amendment and State Law.

States that currently have bans (Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Ohio, South Dakota, Tennessee, Texas and Nebraska)

Supreme Court takes up case on

Same-Sex Marriage after Winsdor

Next week, the Supreme Court will hear Obergefell v. Hodges, NO. 14-556. They will determine whether the U.S. Constitution allows / recognizes Same-Sex Marriages. If not, then whether the full faith and credit clause requires that the states recognized legally married same sex couples.

Post Arabally and YerrabellyAdjustment of Status

Recent Developments

In the Matter of Arabally and Yerrabelly; the grant of Advanced Parole and entry into the United States would not trigger the departure bars, thus allowing individuals to adjust their status inside the United States, rather than consular processing. (DACA/TPS Recipients, etc.)

What has changed since Arabally and Yerrabelly?

If the Executive Action by the Obama Administration in November of 2014 in order to allow certain undocumented immigrants who can pass a criminal background check and pay all of their tax liability to temporarily statin in the U.S. without fear of deportation, may benefit from the grant of Advanced Parole under Arabally and Yerrabelly. However, the Executive Action of extended DACA and DAPA has been put on hold.

Other Changes in Adjustment

Eligibility and WaiversIn 2008 the Fifth Circuit decided Martinez v. Mukasey, 519 F.3d 552. There the court held that LPRs who acquire that status after living in the United States and who later are convicted of an aggravated felony are eligible for consideration for a 212(h) wavier.

The 10th Circuit recently agreed with the court in Martinez, and the majority of other circuits and concluded, “only persons who obtained LPR status before or when they entered the United States are barred from seeking a 212(h) waiver. Medina-Rosales v. Holder, 778 F.3d 1140.

Practice Pointers

For those who are in a jurisdiction that still apply the aggravated felony bar in seeking 212(h) relief, bring to the attention of the court that a majority of circuits are limiting the bar to those who obtained their residency through the consulate. The courts are reaching this result by a strict reading of the statute.

Public. L. No. 107-208 (Aug. 6, 2002)

Basics on the Child

Status Protection Act

Overview of the CSPA

CSPA is intended to preserve the rights of children who “age out” from eligibility for family and diversity based legal resident and refugee status on account of government delays in processing applications.

CSPA applies to

Derivative beneficiaries of asylum and refugee applications;

Children of U.S. citizens and children of legal permanent residents’

Children who are derivative beneficiaries of diversity, preference, and immediate relative visa petitions.

FREEZE!• The CSPA freezes the age of

a U.S. citizen’s child on the date the I-130 is filed.

• If a LPR F-2A petitioner naturalizes, the beneficiary's category automatically converts to the immediate relative or IR-1 category. The beneficiary’s CSPA age then becomes his or her biological age on the date of the parent’s naturalization.

Special Immigrant Juvenile Status in Texas

Special Problems in Special Immigrant

Juvenile Status in Texas.

Special immigrant juveniles are alien children in the United States who face harm in their home countries from which their parents cannot or will not protect them.

SIJ cases are placed on the fast track to obtain lawful permanent residency.

First step for such a child is to obtain a judgment of a family court placing the child under the protection of the court.

SIJ ISSUES CONTINUED

In Texas, the court would appoint an adult to be a managing conservator.

Complications arise when the applicants in the family court are older than 17 and when their attorney is unaware of ultra vires requirements that the Administrative Appeals Unit has invented.

Some courts in Texas have denied court protection to children older than 17 in their belief that they lack jurisdiction to appoint a managing conservator.

However the SIJ Statute defines children as those who are under 21.

*The family court has jurisdiction of children older than 17 for purposes of child support

*The family court can order the parents of the child to pay child support so long as the child is working toward a high school diploma

*The guardian of the child therefore must petition for child support, and keep the child in school

*The conservator may request a child support order even after the child turns 18

*“The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Texas Family Code §153.002

*The family court order appointing the managing conservator must explicitly state 1)Repatriating the child is not in the child’s best interest and 2)It is not “viable” to reunite the child with the parent or parents on account of abuse, neglect, abandonment, or a similar basis in state law.

*The Administrative Appeal Unit has imposed ultra vires requirements on the application for special immigrant juvenile status:

1)The child must not have filed the petition for immigration status in order to obtain immigration status.

2)The child must seek SIJ status on account of persecution by one or both parents

*The statute permits SIJ status even if the child cannon be reunited with only one of the parents, and the child can be reunited with the other inside the United States

*In sum, you should succeed in your client’s SIJ application if you :

1)Convince the family court it has jurisdiction,

2)Obtain an order that provides continuing jurisdiction of the child, and

3)draft the family court order to show the child had to flee persecution by one or both parents on account of a qualifying reason

QUESTIONS??????

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Thank you!!!