Wednesday, June 26, 2013

Same Sex Parent Adoption Post DOMA

Will same sex married couples in Massachusetts still need to file an adoption petition even though both parents are on the original birth certificate?  How risk adverse are the parents?  The Supreme Court today did not strike down Section 2 of DOMA, which  allows States to refuse to recognize same-sex marriages performed under the laws of other States. See 28 U. S. C. §1738C.  Therefore, if you are named in your child's birth certificate because you were married in Massachusetts at the time of birth, there is still no prohibition against other states determining that since your parentage was based on a marriage status that it does not recognize,  it will not recognize your status as a parent. Or, what if you divorce and the biological parent moves to a state that does not recognize same sex marriage and tries to revoke the rights of the non-biological parent.  Remote?  Sure it is.  We will see how this plays out.  Co-parents contemplating travel or a move to a state that does not recognize gay marriage - beware!  Call Glickman Turley at 617.399.7770 for more information or to start your co-parent adoption petition.

The Irony of DOMA

In the majority opinion striking down the defense of marriage act,, the court debated whether the issue was properly before the court given that the Attorney General refused to defend DOMA in court.  The House of Representatives had formed a group called the Bipartisan Legal Advocacy Group (BLAG) to vigorously defend the constitutionality of the law and appear in place of the attorney general before the court.  The court stated that had BLAG not come forward to defend the law, thereby providing a substantial adversarial argument for a finding of constitutionality, the court might have declined to review the lower court decision. Ironically, the arguments by the very group that sought to prevent the court from finding DOMA unconstitutional, gave the court a hand up in finding DOMA unconstitutional.

Today the court declared: "DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State."

The Supreme Court has told the federal government it cannot discriminate.  It is time for the remaining states which prohibit gay marriage to end discrimination.  These states will rise, one by one.

For same sex couples, the implications are enormous.  It will impact estate planning, real estate, probate, inheritance rights, criminal matters, immigration issues, social security, and hundreds, if not thousands of federal laws which provide special considerations to married couples.  If you would like us to investigate how it will make a difference in your case, please call Glickman Turley at 617.399.7770.

The DOMA decision can be found here:  UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL., No. 12–307.

Thank you, Edie Windsor! DOMA struck down

Today is a momentous day! The Supreme Court announced that the Defense of Marriage Act (DOMA) caused "injury and indignity" to same-sex couples, and struck it down. The entire opinion is available here. Glickman Turley LLP is cheering this decision, and we are thrilled that the Supreme Court chose the right result. We are ready to help you through the legal impacts on your life!

This ruling will have great impact on many people's lives, and here are just a few of the ways:

Federal taxes: Now, same-sex couples will be able to get all the same marriage-related benefits and tax opportunities available to opposite-sex couples. This is what Edie Windsor's case was about-- she was contesting the fact that she had to pay estate taxes on the money her wife willed to her, when an opposite-sex spouse would have gotten an exemption based on marriage. Call us to discuss your estate plan and to investigate the ways this ruling may change it.

Immigration: One of the easiest ways to get a green card is through marriage to a U.S. citizen. Previously, same-sex couples could not qualify for this. Now, same-sex spouses of U.S. citizens should be eligible to apply for legal permanent resident status and eventually citizenship, the same as opposite-sex spouses of U.S. citizens. Glickman Turley lawyers are excited to help you and your same-sex spouse file for a family-based immigration visa.

Government benefits: Now, same-sex spouses will be able to receive government benefits available to opposite-sex spouses, such as veteran's benefits and Social Security survivor benefits.

Adoptions: Unfortunately, this opinion may not do much to change the requirement that same-sex spouses must adopt their own children. Glickman Turley has years of experience with co-parent adoptions, and we can still advise you on this process.

Visit this WaPo poll to voice your opinion and see others' reasons for cheering the decision!

Contact us today to discuss the changes this opinion may have on your life. 

Monday, June 24, 2013

The right (not to) bear arms

Did you know that when someone applies to be a citizen of the United States, he or she must take an oath to bear arms in defense of the country?

Margaret Doughty, a longtime permanent resident of the U.S., recently risked her chance at U.S. citizenship by objecting to the oath. Ms. Doughty is an atheist who has a moral opposition to war. When she wrote on her application for naturalization that she did not want to take the oath, USCIS responded by asking her to prove it by submitting a note on church stationery stating that she was "a member in good standing" of a nonviolent religious organization.

Ms. Doughty, as an atheist, did not want to join a church just to get citizenship. Instead, she explained her rationale this way:

“I am sure the law would never require a 64 year-old woman like myself to bear arms, but if I am required to answer this question, I cannot lie. I must be honest. The truth is that I would not be willing to bear arms. Since my youth I have had a firm, fixed and sincere objection to participation in war in any form or in the bearing of arms. I deeply and sincerely believe that it is not moral or ethical to take another person’s life, and my lifelong spiritual/religious beliefs impose on me a duty of conscience not to contribute to warfare by taking up arms ... my beliefs are as strong and deeply held as those who possess traditional religious beliefs and who believe in God ... I want to make clear, however, that I am willing to perform work of national importance under civilian direction or to perform noncombatant service in the Armed Forces of the United States if and when required by the law to do so.”

After much media attention and letters from organizations such as the American Humanist Association and Freedom From Religion Foundation, USCIS backed down and allowed Ms. Doughty's objection to stand. Her naturalization ceremony is scheduled for later this week.

Friday, June 21, 2013

Is burglary a violent felony?

In an opinion called Descamps v. United States, No. 11-9540 (June 20, 2013), the Supreme Court changed the way that certain convictions are handled under the Armed Career Criminal Act (ACCA). Under ACCA, people who commit crimes with firearms get a harsher punishment on their third "violent felony" or "serious drug crime" conviction. ACCA has a minimum term of fifteen years, and a maximum of life.

However, it's often difficult to tell what qualifies as a "violent felony," because each state gets to define its own crimes.  Judges have struggled with this for a while, resulting in a long string of court opinions on the topic.

In this case, Mr. Descamps was convicted of burglary in California before being accused of shooting a truck to scare the person inside. According to the previous interpretation of ACCA, his burglary would be considered a "violent felony." This meant he would receive harsher penalties upon being convicted of the new crime, which would be his third qualifying felony.

However, the California definition of burglary is less strict than ACCA's definition of burglary. This means that some minor behavior (like shoplifting)  could result in a burglary conviction under California law, but not meet the definition of burglary for ACCA. The court determined that Mr. Descamps was not guilty of a "violent felony" when he committed his burglary, and overturned his ACCA conviction.

Even though this case concerns federal criminal sentencing under ACCA, it is possible that the principles will be applied to the analysis of "crimes of violence" for aggravated felonies, and "crimes of moral turpitude" in the immigration context.

If you have questions about how a criminal conviction might affect your immigration status, or if you are facing court proceedings in immigration or criminal court, please contact Glickman Turley LLP to see if we can help. 

For more information about the Descamps case, click here.

Thursday, June 20, 2013

"Sopranos" Star James Gandolfini Dies While On Vacation

Many of us are mourning the death of Sopranos star James Gandolfini today. He was only 51 years old, and died of a heart attack while on vacation in Italy. For his family's sake, let's hope he had arranged an estate plan.

Mr. Gandolfini's character, Tony Soprano, could also have benefited from good estate planning. He was in a dangerous line of work, and cared deeply about his children. He also had several affairs and eventually a divorce, and he might have wanted to leave some money or belongings to his lovers. Many people forget to update their estate plans when they divorce and remarry, so their new spouse and child may be cut out. If Tony had died without an estate plan, his family and friends would likely be forced to spend a lot of money and time on a long probate court proceeding, fighting over how to divide his assets.

Famous actors and mob bosses have more money and assets than most of us, but it's still important for you to create an estate plan. Contact Glickman Turley to see how we may be able to help.

Rest in peace, Mr. Gandolfini. 

Tuesday, June 18, 2013

Bruins Goalie Tuukka Rask Has “Extraordinary Skills"

The Bruins dominated Game 3 of the Stanley Cup Finals last night!  Goalie Tuukka Rask had an amazing game, stopping all 28 shots for his third shutout of the postseason.
My admiration of the Bruins goalie got me thinking about his immigration status (pretty geeky, I admit).  Tuukka Rask hails from Finland, a far off Nordic country that is cold and dark in the winter and light all day long in the summer.  According to his Wikipedia page, he started playing in a youth league in his home town of Savonlinna, Finland.  He then progressed to Ilves, Jr., a Finnish Junior League.  In 2005, he was drafted by the Tronto Maple Leafs, then traded to the Bruins.  Tuukka spent most of his time with the Providence Bruins, quietly making a name for himself.  Rask’s big break came when he was named as the starting goalie for the Bruins before the 2012-2013 season lockout, replacing Tim Thomas. 

When a foreign player is drafted under contract with an NHL franchise, the player applies for a P-1A visa, which is a temporary work visa.  P-1A visa may be issued for up to 5 years initially and permits NHL players to be traded between NHL teams generally without interrupting the player’s ability to play.  It also allows the professional hockey player to travel in and out of the country with the team as required.

P-1 visas are generally dependent upon the player being actively on the ice.  So if the player is no longer playing, the P-1A visa will be invalidated, meaning the player falls “out of status,” and would normally have to leave the United States.  In order to prevent this from happening, many NHL players and franchises initiate the Permanent Residence (aka “Green Card”) process for players on the active roster who wish to make the United States their permanent home after their playing days are over.  For most foreign-born professional athletes, this means obtaining a green card through the employment-based preference category called EB-1, which is a category set aside by the United States Citizenship and Immigration Services (“USCIS”) for “extraordinary ability” workers in the sciences, arts, education, business or…you guessed it…athletics.

To qualify, the athlete must be able to prove that during his career, he has been able to demonstrate sustained national or international acclaim and achievements that are recognized in the field.  Simply playing in the NHL does not satisfy the USCIS regulatory requirement for “extraordinary ability.”  Instead, the player must prove that he is “elite” in comparison to his peers in professional hockey.  The most obvious way for the player to do this is to receive a major internationally recognized award, such as being named an NHL All-Star, winning an Olympic medal, or being on the Stanley Cup-winning Team. 

So, while winning the Stanley Cup finals would be a tremendous career high for Tuukka, it would also increase his chances of getting permanent residence in the U.S.  Something to think about that when you’re cheering for the Bruins during the finals.

Monday, June 17, 2013

Syrian Temporary Protected Status (TPS) Extended Through March 31, 2015

DHS just announced today that it is extending the existing designation and also redesignating Syria for Temporary Protected Status (TPS) for 18 months from October 1, 2013 to March 31, 2015.  This means that Syrians who currently have TPS status will be able to retain their status through March 31, 2015.  The resignation of Syria allows individuals who have been continuously residing in the U.S. since June 17, 2013 to obtain TPS status. 

Secretary of Homeland Security Janet Napolitano explained that the extension and redisignation of TPS status were warranted because the extraordinary circumstances in Syria have not only persisted but have deteriorated further.  The conflict in Syria poses a threat to the personal safety of Syrian nationals should they be forced to return to their country.

Syrians applying for TPS will need to fill out form I-821, which can be found here along with other relevant information.  TPS applicants are also immediately eligible for work authorization.  The cost of applying is $135, for TPS status or $515 for TPS and work authorization.  If applying for employment authorization, the applicant will also need to fill out form I-765.  A fee waiver (form I-912 or letter) is available if you meet certain requirements.

It is important to keep in mind that TPS status does not grant any sort of permanent residence.  Once the protected period is expired, the status is extinguished and the person must return to their country. People who remain in the US after their TPS status has expired may be issued a Notice to Appear (NTA) in Immigration Court for removal proceedings.

An alternative to TPS status is Asylum.  In order to be granted asylum, a person must demonstrate that they have been persecuted in the past or they fear future persecution based on five protected grounds (race, nationality, religion, membership in a particular social group, or political opinion).  A person will not be granted asylum simply because they are fleeing a dangerous situation in their home country (such as war).  For this reason, not everyone who is granted TPS will be granted Asylum. 

A person may apply for TPS and asylum at the same time.  The application for asylum will not be affected by the granting of TPS.  It is important to remember is that a person must apply for asylum within one year of entering the US.  If you or someone you know needs information about or assistance with applying for TPS or Asylum, please contact our office.

Friday, June 14, 2013

Edward Snowden’s Case for Political Asylum

Edward Snowden has probably learned a lot about asylum law in the past few days.  His recent revelation that he was behind last week’s stories in The Guardian and the Washington Post providing details about  top-secret NSA programs have made him somewhat of an international sensation.  The U.S. is expected to indict Snowden for leaking national security secrets.  Russia and Iceland have indicated they might consider offering Snowden asylum.  But would he even qualify for asylum as defined by international law?

In order to qualify for asylum under the 1951 Refugee Convention, you must show that you are unable to unwilling to return to your home country because you have suffered past persecution or you have a well-founded fear of future persecution based upon one of five protected grounds: your race, religion, nationality, membership in a particular social group, or your political opinions.

Snowden’s case illustrates the complex relationship between refugee law and global politics.  In order to be granted asylum, he would have to argue that he is being prosecuted for leaking top-secret government information primarily for political reasons. Thus, a crucial question in Snowden’s case is when does prosecution by a state cross the line from legitimate investigation into persecution, thus rendering the accused eligible for asylum? 

In some cases, the prosecuting state's motives are obviously illegitimate, seeking to punish dissidents for engaging in activities protected by international law.  For example, Aung San Suu Kyi, a long-time political opponent of the Burmese government, was held under house arrest in Burma for almost 15 of the past 21 years merely for engaging in politics. This example illustrates one end of the prosecution/ persecution spectrum, with obviously politically motivated charges in countries that lack any pretense of the rule of law, and makes for relatively straightforward refugee claims.

Snowden’s case is not so clear cut.  It basically boils down to this question: Is the U.S. government indicting Snowden because he broke the law or because of his political opinion (that he believes what the NSA did was wrong)?  If an asylum court abroad determines that U.S. efforts to arrest and prosecute Snowden amount to “prosecution” for the commission of a crime and NOT persecution on account of political opinion, Snowden may be out of luck. 

However, Snowden may be able to show he has a legitimate fear of future prosecution by arguing that the U.S. government will mistreat him (that is, persecute him) if/when he is brought into custody.  A review of Bradley Manning, another famous national security leaker, and his treatment while in custody is enough to make anyone shudder (8 months of solitary confinement, locked in his cell for 23 hours a day, stripped of his clothes, humiliated, etc.).  It is possible that an asylum judge would find this persuasive.

It’s really up to Snowden.  Hong Kong and the U.S. maintain a bilateral extradition treaty, which would be hard to fight.  Iceland has offered asylum to at least one big name in the past (Bobby Fischer) and its minority leader for the Pirate party seems keen to help out.  Snowden would still have to find his way to Iceland without being intercepted, and the government may not be willing to sacrifice good trade relations with the U.S. in order to protect Snowden.  Other options include Russia, China, Ecuador, Guatemala, or Cuba.  It’s anyone’s guess which of these countries might be willing to accept the political fallout that would result from granting Snowden asylum.