Foreclosed Homeowners Have Tenant Rights in Eviction Actions

The Supreme Judicial Court of Massachusetts today held that the Housing Court and other courts which hear eviction matters may consider homeowner defenses and counterclaims against the mortgage companies engaged in evicting them post foreclosure.  See BANK OF AMERICA, N.A. vs.  ROSA (SJC-11330). This is another victory for homeowners in the foreclosure process given recent history of extensive bank misconduct. 

Federal Student Loan Agency Recognizes Same-Sex Marriage

Is someone in your family planning to apply for federal student aid? A recent change may affect the results. The U.S. Department of Education just announced that it will recognize students' and parents' same-sex marriages in determining federal student loan eligibility. Depending on the particular circumstances, this change could mean either an increase or decrease in the aid received.

Unfortunately, college still requires a lot of Benjamins.
Photo used under Creative Commons license from @401(K) 2013 on Flickr.

Education secretary Arne Duncan wrote, "We must continue to ensure that every single American is treated equally in the eyes of the law, and this important guidance for students is another step forward in that effort... As students fill out their FAFSA this coming year, I'm thrilled they'll be able to do so in a way that is more fair and just.”

The changes are effective immediately, although updated forms are not yet available. Students may file an amended FAFSA to make sure their aid is calculated correctly.

 

For more details, please see: http://www.insidehighered.com/news/2013/12/16/education-department-recognizes-same-sex-marriages-student-aid-purposes#ixzz2nfmLF48P

Immigration reform set to return in 2014

The Republican-controlled House of Representatives wrapped up its work on Thursday with no progress made on immigration reform.  However, both parties gave assurances that they tackle this thorny issue early next year.  Supporters of immigration reform held sit-ins in the Capitol on Thursday and visited with other activists who have been fasting to protest the lack of a vote in the House.

House speaker John Boehner appeared to signal a major break from right-wing conservatives on Thursday after they opposed his efforts to reach a deal with Democrats over the federal budget.  The House has shied away from a comprehensive plan, in favor of a more piecemeal approach.

Experts in immigration reform believe that Boehner is preparing to work with Democrats on the issue in the New Year.  Only last week, Boehner appointed a high-profile immigration expert, Becky Tallent, who worked for senator John McCain when he last tried to pass comprehensive immigration reform under President George W. Bush.  It seems unlikely that Ms. Tallent would have taken the job unless there was a plan in place to move forward on immigration reform in 2014.

The White House has continued to promote reform.  Democrats have hinted at possible concessions they may be willing to make in order to come to an agreement on an immigration reform bill.

Max Sevillia, policy director at the Naleo Educational Fund, said “If Republicans ever want to have a president again, they need to pay attention to the Latinos.”

Let’s hope that the Senate and House make immigration reform a reality in 2014.

For more on this subject, see this article published on Thursday in the New York Times and another one published today in The Guardian. 

FDA considers regulations on pet food

Inspector, my hot dog has legs!
Photo credit @Mosman Council on flickr; used under CC license

When you give your pet a treat, how do you know it's safe?

A 2010 food safety bill gives the federal Food and Drug Administration (FDA) the authority to begin regulating pet food more stringently. After dogs across the country became sick from eating tainted jerky treats from China in 2007, the FDA began a deeper investigation. It already has the authority to make rules about what ingredients pet food may contain, but it does not inspect the products. Now, it wants to promulgate regulations that would allow it to do more to catch tainted animal food before it gets to consumers. 

The proposed rules would cover contamination by chemicals, pathogens, and other contaminants, in an attempt to reduce food-borne illnesses. The regulations would also cover feed for farm animals, but would not affect antibiotic use on industrial farms.

To learn more about what the FDA currently does to ensure pet food safety, and to give comments on proposed regulations, please visit its website.

Most Americans Support Path to Citizenship, Study Finds

The Public Religion Research Institute found that 63% of Americans supported a path to citizenship for people currently living in the U.S. without legal immigration status. The survey, published today, showed that support is widespread among people of different political parties, religions, and geographic locations within the U.S.

We'd like a path to citizenship, but we're not out of the woods yet.
Photo credit @StooMathiesen on flickr; used under Creative Commons license.

Only about one-fifth of the people surveyed wanted to increase harsh immigration enforcement strategies such as deportations. Even fewer numbers of people liked the idea of allowing undocumented people to gain green cards, but not full citizenship.

More people said they felt that the U.S. immigration system is "completely broken" in response to this survey, conducted in November, than they did in March of this year.

Survey respondents continued to be divided on the question of increased border security and fence construction, with about half in favor and slightly less than half opposed.

To learn more, visit the Public Religion Research Institute's website, and for more information on this survey please read the related article at the New York Times.

Mental illness, indigency and lack of family support amount to “particular social group” for purpose of asylum application

The Board of Immigration Appeals (BIA) recently remanded an asylum case to the Immigration Judge with instructions to accept the asserted “particular social group” of individuals suffering from mental illness who are indigent and lack family support.

The respondent’s asylum claim was based upon his fear of persecution in Ghana due to his mental illness, which he described as bipolar disorder.  He contended he would be unable to obtain the necessary medication to control his mental illness.  The Immigration Judge found that the respondent’s bipolar disorder was an immutable characteristic, but that the elements of indigency and lack of family support were not.  The IJ’s findings were contradictory in that he found that individuals with mental illness in Ghana are subjected to abuse that rises to the level of persecution, but that the respondent did not show a reasonable likelihood of suffering from persecution were he to return to Ghana.

 

The BIA remanded with instructions for the IJ to accept the stated particular social group and to allow testimony from the respondent’s psychiatrist and other documentary materials that were relevant to the asylum application.  For more information or to access this unpublished decision, click here.

Immigration Relief for Military Families

Photo credit Official U.S. Navy Imagery on Flickr.

Under a new policy released last week, the spouses, children, and parents of active military troops and veterans are now eligible to apply for legal immigration status.

Spouses and relatives of citizens and green card holders could apply for status. But under existing law, undocumented immigrants have to leave the country while their status is pending, sometimes for years at a time. This new policy means that relatives of troops and veterans can apply from within the country under a status known as "parole in place."

Changes to immigration laws have not yet been realized. The Senate passed an immigration reform bill earlier this year, but the House seems unlikely to take action on it. Some have speculated that, because of the lack of Congressional action, President Obama will attempt to reform immigration through smaller policy changes such as this.

For more information, please see this New York Times article and this Associated Press article. 

Boehner Balks at Immigration Reform in 2013

The Waiting Game
Photographer Charles O'Rear / U.S. National Archives
Used under Creative Commons license

On Wednesday this week, John Boehner confirmed that comprehensive immigration reform efforts on Capitol Hill are dead this year.  Apparently, House Republicans just aren’t up for it.

Speaking to reporters, Mr. Boehner said that House Republicans are still working on a deal, but “The idea that we're going to take up a 1,300-page bill that no one had ever read, which is what the Senate did, is not going to happen in the House.” He continued, “And frankly, I’ll make clear we have no intention of ever going to conference on the Senate bill.”

Unfortunately, this means that a broad bill that would include a path to citizenship for the 11 million undocumented immigrants already in the country will have to wait until 2014.

The Republican-controlled house has taken a piecemeal approach to immigration reform, working to pass individual bills to address border security or to overhaul the guest worker program.  The concern of the House Republicans is that these smaller wills will be swallowed up in a conference committee with the Senate’s larger plan.  Mr. Boehner has made it clear that he won’t let this happen.  

For more on this story, check out this New York times article.

TPS for Somalians extended through 2015

Photo credit Cate Turton / Department for International Development
Used under Creative Commons license

The Department of Homeland Security (DHS) announced yesterday that the Secretary of Homeland Security is extending the designation of Somalia for Temporary Protected Status (TPS) for 18 months from March 18, 2014 through September 17, 2015.

The extension allows currently eligible TPS beneficiaries to retain TPS through September 17, 2015, so long as they continue to meet the eligibility requirements for TPS. The Secretary noted that there continues to be a substantial disruption of living conditions in Somalia based upon ongoing armed conflict and extraordinary and temporary conditions in that country that prevent Somalis who have TPS from safely returning.

Re-registration is limited to persons who have previously registered for TPS under the designation of Somalia and whose applications have been granted. Certain nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions, if they meet: (1) At least one of the late initial filing criteria and (2) all TPS eligibility criteria (including continuous residence in the United States since May 1, 2012, and continuous physical presence in the United States since September 18, 2012).

For individuals who have already been granted TPS under the Somalia designation, the 60-day re-registration period runs from October 31, 2013 through December 30, 2013. USCIS will issue new EADs with a September 17, 2015 expiration date to eligible Somali TPS beneficiaries who timely re-register and apply for EADs under this extension.

See USCIS website here for more information.

Work Authorization Process to Become More Transparent for Asylum Seekers

EAD - crucial for asylum seekers waiting for interviews
Photo credit NPR, used under Creative Commons license

On Monday, a federal judge ordered the final approval of a nationwide class action settlement agreement which will help ensure that asylum seekers are not unlawfully prevented from working and supporting their families while the government adjudicates their cases.  The changes will go into effect on December 3, 2013.

The agreement comes out of a case filed in December 2011 on behalf of asylum seekers around the country that challenged the government’s use of the “asylum clock” to determine when immigrants who have applied for asylum may obtain permission to lawfully work in the U.S.  The suit alleged that many asylum applicants had been unlawfully denied the opportunity to obtain employment authorization if their asylum applications have been pending for six months or more.

The settlement agreement will make the process for getting work permits more transparent and fair and will leave less room for government error.  The settlement agreement also provides the following benefits: asylum seekers with Immigration Court cases may now present their asylum applications to the Court immediately, without having to wait months for an initial hearing before an Immigration Judge; certain asylum seekers whose cases have been pending on appeal will now be able to obtain work authorization when the Board of Immigration Appeals remands their cases to an Immigration Judge; asylum seekers and their attorneys will be provided with more effective notice so that they do not inadvertently accept hearing dates which preclude work authorization.

Playing the waiting game in immigration court

Anyone who's had experience with immigration court knows that the process is anything but fast. Nationwide, the backlog has reached an all-time high of 344,230 people in immigration proceedings. See TRAC Immigration for more.

Fortunately, the immigration court doesn't require you
to stand in line the entire time you're waiting for your case.
Used under Creative Commons license from @eschipul

As of September 13, Massachusetts is among the top ten states with the biggest backlog of immigration cases waiting to be processed. It also has the 8th longest wait times. In 2013, a person in deportation proceedings in Massachusetts had to wait an average of 610 days to have the case resolved, above the national average of 562 days. Click here to see some charts. Nebraska had the longest wait times with 761 days, while Hawaii is the shortest at 164.

While the wait times may seem to be a good thing for people who want to avoid deportation, the long delays mean months of uncertainty for people in immigration proceedings.

Immigrant succeeds on civil rights claim

A Nashville woman will receive a substantial settlement after being shackled to her hospital bed while giving birth.

Nobody likes a traffic ticket.
Photo credit @woodleywonderworks on Flickr; used under Creative Commons license.

Ms. Juana Villegas was taken into custody during a 2008 traffic stop. As part of an agreement between Tennessee law enforcement officials and federal immigration enforcement, local police had the power to detain people whose immigration status was in question. At the time, Ms. Villegas was nine months pregnant. She went into labor during her six-day stay in immigration detention. While she gave birth, she was kept in handcuffs and leg chains. After she delivered her child, she was denied the use of a breast pump, which caused an infection.

Ms. Villegas filed suit to protest this treatment. A federal judge ruled in 2011 that the jail officials had shown "deliberate indifference" to Ms. Villegas' medical needs. In an unusual step, the judge also recommended that Ms. Villegas be given immigration status, under a visa type for crime victims. Appeals ensued, but the city settled with Ms. Villegas to avoid further litigation.

Ms. Villegas' case has clarified rights for immigration detainees, and also opened a new possible route to legal status for people whose civil rights have been violated.

If someone you know is in immigration detention, or if you have questions about which visas you might be eligible for, please contact us to see if we are able to help.
 

Quotas aren't just for traffic tickets

It's a full house... by law.
Photo credit @ChodHound, Flickr; used under CC License.

A Congressional quota requires that U.S. Immigration and Customs Enforcement (ICE) keep roughly 34,000 detainees in custody per day -- whether ICE wants to detain that many people, or not. This policy dates from 2006, when some legislators wanted to make sure that the federal government didn't get lazy on enforcing the immigration laws.

Years ago, ICE filled those spots easily, with the huge number of people it caught at border crossings. Now there are fewer people coming over the border, and ICE cannot meet its quota. So the government searches for legally present immigrants who have criminal records, and also focuses on undocumented immigrants taken into custody during traffic stops by local police.

A large number of these people --as many as half of them --will appear before immigration judges and eventually be approved to stay in the United States. In the meantime, however, they have to spend months in costly federal custody. This also feeds the pockets of private prison companies, such as the GEO Group and CCA. These companies, in turn, spend money lobbying Congress on immigration issues.

Immigration advocates point out that other, less costly forms of supervision are available, such as GPS ankle bracelet monitoring. The alternatives cost less than one-tenth of the price of keeping a person in detention, and research shows there is nearly full compliance with them.

While a quota, in theory, may seem like a way to ensure that immigration laws are enforced, in practice it just means that people are locked up unnecessarily.

Read more at the Washington Post.

Iraqi Visa Program Temporarily Renewed Despite Government Shutdown

The Special Immigrant Visa Program (SIV Program) was created as part of the Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, which was signed into law on January 28, 2008.  The legislation authorized 5,000 Special Immigrant Visas per year for Iraqis who provided valuable service to the U.S. government while employed by or on behalf of the U.S. government in Iraq, for not less than one year after March 20, 2003, and who have experienced or are experiencing ongoing serious threat as a consequence of that employment.  Many translators fall into this category. 

The program would have expired on September 30, 2013, but fortunately, Congress approved a three-month extension of the program.  This short-term solution was seen as a significant accomplishment in the midst of the tumultuous government shutdown.

Unfortunately, the bill does not resolve the substantial backlog that currently exists with this visa program.  Thousands of applicants are still waiting for adjudication of their applications.

For more information on this subject, check out this recent article in the New York Times, this wonderful podcast from This American Life, and this website The List Project. 

Fall has come to Faneuil Hall

Beautiful fall colors can be seen around Faneuil Hall!  This picture was taken from our new location at 1 South Market Building, 4th floor, Boston, MA.

First Circuit rejects "post-departure bar"

The First Circuit in Perez Santana v. Holder rejected the "post-departure bar" to motions to reopen immigration proceedings.  The phrase “post-departure bar” refers to an immigration regulation that precludes a noncitizen from filing a motion to reopen their proceedings once they have been deported.  The problem often arises in cases where the person files their motion to reopen while they are still in the U.S., but then gets deported before the motion to reopen is decided.  Once the person is deported, the government treats the motion as if it is "withdrawn" and rejects it. 

In Perez Santana, DHS ordered the petitioner, a lawful permanent resident, removed after he pled guilty in state court to possession of a controlled substance with intent to distribute.  Perez Santana was able to vacate his criminal conviction, but by the time he filed his motion to reopen he had already been removed to the Dominican Republic . The Board of Immigration Appeals (BIA) denied the motion, invoking the "post-departure bar."

The First Circuit Court of Appeals granted Petitioner's petition for review, holding that the “post-departure bar” cannot prevent a noncitzen from invoking his statutory right to file a motion to reopen.  Importantly, the statute allowing motions to reopen does not require a physical presence or indicate a geographic limitation in its general provisions.

In a companion case, Bolieiro v. Holder, the Court held that the “post-departure bar” could not prevent a noncitizen from invoking her statutory right to file a motion to reopen, even where the motion was filed outside the ninety-day deadline set forth in the statute.  

Government relies on nonexistent Mexican law to deny U.S. Citizenship for over 20 years

Well, this is interesting.  For over twenty years, Sigifredo Saldana Iracheta insisted he was a U.S. citizen because he was born to an American father and a Mexican mother in a city just south of the Texas border. The federal government rejected his claims over and over again, deporting him at least four times and at one point detaining him for nearly two years as he sought permission to join his wife and three children in South Texas.  The government argued that the only way for Saldana to gain legal legitimacy would have been for his parents to marry, which they never did. 

In its September 11^th decision, the Fifth Circuit Judge Jennifer Walker Elrod disagreed with the government finding that Saldana acquired citizenship through his U.S. Citizen father, met the U.S. citizenship requirements of INA §§ 301 and 309, and remanded with instructions to vacate or terminate the order of removal.

The problem with the government’s argument, the Judge Elrod point out, was that it relied on provisions of the Mexican Constitution that either never existed or do not say what DHS claimed they said.  In rejecting Saldana's claim to citizenship, the government had applied case law from 1978 that cited Article 314 of the Mexican Constitution, which supposedly dealt with legitimizing out-of-wedlock births. This provision never existed.  

Most recently, the government had cited to a different provision of the Mexican Constitution, Article 130, to deny Saldana’s claim in 2004. While this provision does exist, it only states that marriage is a civil contract, as opposed to a religious one and says nothing about legitimation or children.  Under the law applicable at the time, even though he was born out of wedlock, Saldana was formally acknowledged (or “legitimated”) by his father when his father placed his name on Saldana’s birth certificate before the official registry.

At oral arguments last month in Houston, Judge Elrod was incredulous: “These people are citizens by their birth, and for 35 years the government has been telling them you are not citizens because of this law that doesn't exist.”  Most denials such as Saldana’s are never appealed, often because the people involved do not have the money to pursue the matter to higher courts.  This crucial break-through in the law is a testament to Saldana’s persistence.  

IRS Releases Guidance for Employers and Same Sex Couples post DOMA

The Internal Revenue Service has just released guidance for recovering excess taxes paid by employers and taxpayers in light of the Windsor decision.  Windsor was the decision in which the Supreme Court held that the federal government cannot treat same sex married couples differently than opposite sex married couples. See United States v. Windsor, 570 U.S. ___, 133 S.Ct. 265 (2013). In Tax Notice 2013-61 the IRS provides special administrative procedures that can be used by employers to claim refunds or make adjustments of overpayments of employment taxes paid with respect to same-sex spouse benefits for 2013, and also a special administrative procedure that can be used with respect to overpayments of FICA taxes for years before 2013. It also informs taxpayers that they can file Form 1040X to make claims for overpayment of income taxes in past tax years.  Note that not all married same sex couples will be better off.  Tax savings will likely only benefit those couples in which one spouse earns significantly more income than the other. 
  

We've moved!

The offices of Glickman Turley LLP have moved to Faneuil Hall Marketplace!

Photo credit BostonPhotoSphere on Flickr. Used under Creative Commons license

We're excited about this move for several reasons. Besides our new, larger office space, we're right next to historic Faneuil Hall. We can see people line up for their naturalization ceremonies from our office windows. Also, we're more convenient for our clients, as we're just a block from four different MBTA stations: State Street on the Orange Line, Government Center or Haymarket on the Green Line, or Aquarium on the Blue Line.

Come visit us!
The full address is: 1 South Market Building, 4th Floor, Boston MA 02109.


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"New" rules, or old school?

Well, maybe you won't be able to challenge a conviction that's this old.

Does a criminal defense attorney have to advise her client about the immigration consequences of a criminal conviction? The Supreme Court said yes, in a case called Padilla v. Kentucky.

The Massachusetts courts agreed, but now the SJC has gone a step further in a recent case: Commonwealth v. Sylvain, SJC-11400. In Sylvain, the court clarified that it's nothing "new" for criminal attorneys to advise their clients about immigration consequences. Attorneys in Massachusetts have been giving their clients this advice for years, and CPCS requires all public defenders and bar advocates to do it.

Because this is not a "new" rule of constitutional rights announced by the Supreme Court, the rule applies retroactively. People who are not U.S. citizens who have been convicted of crimes in the past may now challenge those convictions. They may be able to reverse their convictions if they did not get accurate advice from their lawyers, and if the bad advice affected the outcome of their cases.

 Unfortunately, the Supreme Court decided that this is a "new" rule for federal purposes. See Chaidez v. United States for details. This means that inaccurate immigration advice from criminal convictions in other states and the federal system may not result in a finding of "ineffective assistance of counsel."

If you have questions about a past criminal conviction and your immigration status, or if you are facing criminal charges and you are not a citizen of the U.S., contact us today to see if we are able to help.

Department of State Issues Guidance for Consular Posts after Windsor Decision

The Department of State recently issued guidance to its consular posts (U.S. consulates and embassies) following the Supreme Court’s decision in Windsor striking down section 3 of the Defense of Marriage Act (DOMA).  The following is a list of highlights from the guideline:

·         Visa applications filed by a same-sex spouse will be reviewed in the same manner as those filed by an opposite-sex spouse. 

·         A same-sex marriage is now valid for immigration purposes as long as the marriage is recognized in the “place of celebration.”  The same-sex marriage is valid even if the couple resides in a state that does not recognize same-sex marriage. 

·         The same-sex marriage is valid even if the applicant is applying in a country in which same-sex marriage is illegal.

·         Same-sex spouses and their children are now equally eligible for non-immigrant visa (NIV) derivative visas. 

·         A spouse of a U.S. Citizen or Lawful Permanent Resident may apply for an immigrant visa (so long as the priority date is current) after USCIS approves the I-130.  The place of celebration will determine whether the marriage is legally valid, not the applicants’ place of domicile.

·         Fiancé(e) visas are now available for same-sex partners of U.S. Citizens.

·         Diversity Visa applicants (green-card lottery) may now include same-sex spouses in their initial entry or add a spouse acquired after the initial registration.  For DV 2013 and DV 2014, same-sex couples will not be automatically disqualified for not including their same-sex spouse on their original entry.

Interestingly, the Department of State guidance asks consular sections to identify what types of marriage are available for same-sex couples in-country and update the reciprocity tables, pursuant to 9 FAM 41.105.  This leaves open the question of whether civil unions or other forms of legally recognized same-sex partnerships will be recognized as “marriage” for immigration purposes.  We will keep you posted on this.

The Department of State guidance can be found here and more user-friendly FAQs here.

Royal baby boy arrives safe and sound

July 22^nd was a momentous day for the British royals:  Queen Elizabeth became a great grandmother, Prince Charles and Camilla became grandparents, Prince Harry became an uncle, and William and Kate became parents.  

Outside the hospital, a town crier, decked out in traditional robes and an extravagant feathered hat, shouted the news and rang a bell. A car carrying the announcement drove from the hospital to the palace, where the news was greeted with shrieks of “It's a boy!” and strains of “For He's a Jolly Good Fellow.” A large crowd struggled at the palace gates to catch a glimpse of an ornate, gilded easel displaying a small bulletin formally announcing the news.

Most of us enter the world with far little less fanfare, although no less love and affection.  Once the baby is brought home and settles in, it is important for parents to begin thinking about estate planning. Too often, parents of young children neglect or postpone estate planning, saying they are too young, quite healthy, or cannot afford the expense. Another reason may be that estate planning deals with issues that people would prefer to ignore (death, property, marriage and family relationships).

But estate planning can be a very positive and important part of raising a family. Estate planning assures that certain things happen at death. Perhaps the most important benefit of having a Will is that it allows parents to designate a guardian for their children. This person will provide for the social training and physical needs of children if neither parent survives. If there is no Will nominating a guardian, the court must appoint one even though it cannot possibly know the values, lifestyle and child-rearing philosophy of the parent(s). It must make a decision based on state law and in the best interests of the children. It is often difficult to determine the children's best interests in a brief court hearing. An estate plan can also ensure that children will be financially supported and that they will have access to education and funds that will support them throughout their life.  

You don’t have to be royalty to plan for your child’s future.  A little bit of planning now can give you peace of mind about your new life as a parent.  Check out our estate planning page for more information or contact us if you would like to discuss an estate plan for your family.

BIA recognizes same-sex marriages for immigration purposes

The Board of Immigration Appeals (BIA) in Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA July 17, 2013) held that in light of the U.S. Supreme Court’s decision in U.S. v. Windsor, 133 S. Ct. 2675 (2013), Section 3 of the Defense of Marriage Act (DOMA) is no longer an impediment to the recognition of lawful same-sex marriages and the recognition of spouses under the INA if the marriage is valid under the laws of the state where it was celebrated.

The U.S. citizen petitioner, Oleg B. Zeleniak, filed an I-130, Petition for Alien Relative, on behalf of the beneficiary, Serge V. Polajenko, as his (male) spouse on March 10, 2010. USCIS denied the petition on July 27, 2010, and the petitioner appealed the denial to the Board. In its first decision, dated April 18, 2012, the Board remanded the record to the Director with instructions to address two issues: whether the petitioner’s marriage is valid under the applicable state (Vermont) law and whether the marriage would qualifies under the INA absent the requirement of DOMA § 3. On remand, the Director determined that the marriage was valid under Vermont law but declined to consider the issue whether the beneficiary would be a spouse under the INA absent the requirements of DOMA § 3 (the controlling federal statute). Hence the Director once more denied the visa petition. The petitioner once again appealed to the Board.

In its most recent decision, the Board sustained the petitioner’s appeal and again and remanded the record to the Director for further consideration of the sole remaining issue which was whether the petitioner had established that his marriage to the beneficiary was bona fide. 

The Board explained that the Windsor decision removed DOMA § 3 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 and the Court’s decision is applicable to various provisions of the INA, including, but not limited to fiancé and fiancée visas, immigrant visa petitions, refugee and asylee derivative status, inadmissibility and waivers of inadmissibility, removability and waivers of removability, and cancellation of removal. The Board further observed that the issue of the validity of a marriage under state law is generally governed by the law of the place of celebration of the marriage. 

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. 

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.

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.

"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. 

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.

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.

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.