DOMA Ruling and Green Cards for Same-Sex Couples

The Supreme Court heard arguments today challenging the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman.  The case, called United States v. Windsor, challenged whether Congress can pass laws that treat married same-sex couples differently than opposite-sex couples. Ordinarily, it is up to the states to decide who it will allow to marry and how.  In the arguments today, even Justice Kennedy (typically regarded as the swing vote) expressed concern that DOMA was stepping on states’ powers.

While the case doesn’t address the constitutionality of gay marriage itself, a ruling in favor of DOMA's opponents could have a significant impact on federal benefits available to gay couples, including the right to remain in the country through a green card.  Under current immigration law, heterosexual married couples may sponsor their immigrant spouse to get a green card.  DOMA prevents same-sex married couples from doing the same, even though they were legally married in a state that recognizes gay marriage. 

Although the current administration opposes DOMA on the grounds that it violates the equal protection clause of the Constitution, there still are no concrete protections in place for same-sex couples.  Last fall, the Department of Homeland Security Secretary Janet Napolitano announced that the department would recognize gay spouses as being the same as heterosexual spouses when deciding whether to deport someone.   But this did not go far enough.  Many same-sex couples remain in limbo, unable to travel or visit family if undocumented, or maintaining a life and relationship on time-limited tourist visas.

If the Supreme Court finds DOMA unconstitutional, it is likely that same-sex married couples will be immediately able to petition for all federal benefits, including immigration status.  For more information, check out this New York Times article and links to a transcript and recording of the oral arguments here.

Most Americans In Favor of Immigration Reform

Most Americans support immigration reform, according to a new study by the Public Religion Research Institute. The study found that only seven percent of Americans believe that the immigration system is generally working, and even more conservative groups showed surprising support for immigration reform. A majority of Republicans, Democrats, and independents all reported that they would support an earned path to citizenship for people who are currently undocumented but want to stay in the United States.

The survey showed that most Americans care about the same values in changes to immigration laws, including keeping families together, national security, and promoting personal dignity.  Nearly two-thirds of Americans supported the core provisions of the DREAM Act: that undocumented immigrants should be able to gain legal permanent resident status if they join the U.S. military or go to college. Vice President Joe Biden, in a recent speech, also encouraged policies that would allow undocumented people a legal path to citizenship, and spoke in favor of granting green cards to STEM (science, technology, engineering, and math) graduates.

Younger Americans, especially those between the ages of 18 and 29, agreed with positive statements about immigration more often than older people did. Significantly, nearly 7 in 10 people under age 30 said that immigrants strengthen American culture. Younger Americans were also more likely to say that immigrants who have a gay or lesbian spouse currently living in the U.S. with legal status should be given priority in immigration.

Read more about the survey at the New York Times.

Senate Considers Immigration Reform Bill

The New York Times reported today that the United States Senate is considering an immigration reform bill which would provide that some undocumented immigrants living in the United States could be eligible for citizenship and naturalization 13 years after the implementation of immigration reform.  The immigrants would have to first file for a green card (legal permanent residence) which would take about 10 years.  While waiting for the green card, immigrants would be granted work authorization and would not be removed because they were in the United States without legal status.  They would also have to pay back taxes, a fine and be able to speak English.

Convictions Successfully Overturned -  Glickman Turley was successful in overturning 1982 convictions for possession of a firearm, carrying a firearm and assault and battery with a dangerous weapon.  The grounds for the motion to vacate were that the defendant's counsel was ineffective because he had failed to file a motion to suppress a warrantless search where the firearm was found and that the district court had failed to provide defendant with the required state immigration warnings under Massachusetts General Laws, Chapter 278, Section 29D.  In a seven page written decision,  the Roxbury District Court found that defense counsel had failed to file a motion to suppress the warrantless search but relied upon the lack of required immigration warnings to hold that the convictions must be vacated. The court also noted that despite the fact that Immigration and Customs Enforcement ("ICE") had not started removal proceedings to deport the defendant, he was still prejudiced because felony convictions and firearm convictions were a first priority for removal under written ICE policies. 

New Provisional Unlawful Presence Waiver Process Begins March 4

Beginning March 4, certain immigrant visa applicants who are the spouses, children and parents of U.S. citizens (immediate relatives), and who have been unlawfully present in the U.S., will be able to apply for a provisional unlawful presence waiver through a new process.  

Under the old process, individuals who entered the U.S. lawfully and met all other requirements were allowed to apply for permanent residence while remaining in the country.  However, individuals who entered without inspection could not adjust their status from within the United States.  Instead, they were required to leave the country in order to obtain an immigrant visa from the U.S. embassy and/or consulate before they could return to the U.S. and be admitted as lawful permanent residents.  They had to first be found inadmissible at their immigrant visa interview before they could apply for a waiver of inadmissibility.  Adjudication of a waiver of inadmissibility overseas often took a long time and led to the prolonged separation of these immediate relatives from their family in the U.S.

Under the new process, an immediate relative who meets the requirements will be able to apply for the waiver and obtain provisional approval before leaving the United States for the immigrant visa interview with a U.S. embassy or consulate abroad.  This will significantly reduce the amount of time that U.S. citizens are separated from their immediate relatives.  As long as there are no other issues of eligibility and/or grounds of inadmissibility, the DOS consular officer should be able to issue an immigrant visa within a reasonable amount of time.

You can read more information about eligibility and the filing process here. 

Supreme Court Reverses SEC V. Gabelli, Clarifies Five-Year Statute of Limitations

On February 27, 2013, the Supreme Court reversed the 2nd Circuit in the case of Gabelli et al. v. Securities and Exchange Commission, holding that the five-year period for the government to commence actions for civil penalties for fraud begins to run when the fraud occurs, not when it is discovered. 

The SEC filed the initial enforcement action in 2008 against petitioners Gabelli and Alpert under the Investment Adviser Act.  The Investment Advisers Act makes it illegal for investment advisers to defraud their clients, and authorizes the SEC to seek civil penalties within five years of the alleged illegal activity.  The SEC alleged that Gabelli and Alpert had aided and abetted investment adviser fraud from 1999 until 2002. 

At issue in the case was whether the SEC could file claims of fraud against an investment adviser after this five-year deadline had passed on the argument that it had not discovered the violation until more recently.  Courts sometimes apply a “discovery rule” to fraud cases to keep alive otherwise-lapsed securities claims by investors and other private parties.

The Supreme Court declined to extend the “discovery rule” to government civil penalty enforcement actions.  The Court explained that, unlike private parties who may have no reason to suspect fraud, the SEC’s very purpose is to root out fraud.  The SEC also has many legal tools at its disposal to detect and expose fraudulent activity.  The Court also discussed the importance of setting time limits on penalty actions because they go beyond compensation and are intended to punish and label defendants as wrongdoers.