Same-Sex Marriage and Adoption in the News

Russia appears poised to expressly deny adoptions of Russian children by same-sex foreign couples.  The measure is in a parliamentary committee, and has the support of President Vladimir Putin.  All Americans, regardless of sexualorientation, are barred from adoption in Russia, a 2012 retaliatory gesture after the US imposed sanctions on Russia for human rights abuses.

France and New Zealand passed same-sex marriage measures this week, as well as the Senate of the US state of Rhode Island, where final approval is imminent.  Rhode Island will mark the 10^th US state to approve marriage equality, and the last of all six New England states. 

While same-sex couples can enjoy certain rights in ten US states and the District of Columbia, there still remain inequalities at the federal level.  LGBT advocates in the US are anticipating a ruling on two cases before the US Supreme Court (Hollingsworth v. Perry and Windsor v. United States) which are direct challenges to the Defense of Marriage Act (DOMA.)

Should DOMA be overturned, Glickman Turley looks forward to assisting bi-national same-sex married couples in negotiating equal access to immigration laws.  We also look forward to the day when our services for same-sex, co-parent adoption are no longer necessary.

SJC Rules That Commercial Landlord Cannot Recover Future Rent Until End of Lease Term

Today, the Massachusetts Supreme Judicial Court determined that a commercial landlord cannot recover the present value of lost future rent before the end of the lease term, absent specific language in the lease indemnification clause stating otherwise.  This is the law despite the fact that the property was relet to another tenant for the duration of the lease term.  The court also reasoned that once the landlord terminated the lease for breach, there is no common law entitlement which gives the landlord post termination damages. And in good news for guarantors of leases, the liability of the guarantor cannot exceed the liability of the tenant, and therefore cannot be determined until the end of the original lease term. This is despite a provision in the lease which provided for joint and several liability.  The case portends redrafting of commercial leases to allow for immediate damage calculations, and will allow tenants to plan accordingly.  The case is 275 Washington Street Corp., Trustee vs. Hudson River International, SJC-11217 (April 30, 2013).

DOJ Announces New Policy for Detained Immigrants with Mental Illness

On Monday this week, the Department of Justice (DOJ) and Department of Homeland Security (DHS) announced a new nationwide policy for unrepresented immigration detainees with serious mental disorders or conditions that may make them mentally incompetent to represent themselves in immigration proceedings. 

The policy was announced only a day before a federal judge in California ordered courts in Arizona, California and Washington to provide legal representation for immigrants with mental disabilities who are in detention and facing deportation, if they cannot represent themselves.  The decision is the first time a court has required the government to provide legal assistance for any group of people in immigration proceedings.  The ruling was handed down late Tuesday in a class-action lawsuit brought in 2010 by the American Civil Liberties Union, among others.

The new policy would essentially expand the California ruling nationwide, making government-paid legal representation available to people with mental disabilities in immigration courts in every state.  Under the new guidelines, immigration judges would be able to order mental competency hearings for immigrants who may have serious disorders, based on medical or other records.  

Immigration Consequences of Marijuana Convictions Are Narrowed

In an opinion released today, Moncrieffe v. Holder, the Supreme Court decided that a state conviction for possession with intent to distribute a small amount of marijuana does not constitute “illicit trafficking in a controlled substance” for purposes of the Immigration and Nationality Act. Therefore, a non-citizen convicted of this crime would not be subject to mandatory deportation, and would not lose eligibility for some forms of discretionary relief from deportation.

To avoid triggering immigration consequences, the conviction must be for sharing a "small amount" of marijuana where no money was exchanged. The Court did not define "small amount," but Mr. Moncrieffe had 1.3 grams of marijuana and this was deemed to be small. The Court urged a "commonsense conception" of the terms involved, and the opinion drew a distinction between sharing marijuana and conducting commercial drug dealing.

This case comes just weeks after the Massachusetts Supreme Judicial Court determined that "social sharing of marijuana is akin to simple possession, and does not constitute the facilitation of a drug transfer from seller to buyer that remains the hallmark of drug distribution." The SJC found that sharing a joint is a civil infraction and not a criminal offense. In two related cases, the SJC found that non-criminal possession or use of marijuana cannot be the basis of a search. The Court also stated that growing one ounce or less of marijuana for personal use only should not be considered a crime.

If you are facing criminal charges related to marijuana, or immigration issues that come from a criminal conviction, please contact our office to see how we could help you.

AILA Warns of Notario Fraud

The American Immigration Lawyers Association (AILA), the national bar association for immigration attorneys, has set up a website dedicated to educating the public about the dangers of immigration fraud.  The website is www.stopnotariofraud.org. 

Only licensed lawyers or accredited representatives are authorized (and qualified) to assist clients with their immigration matters.  An accredited representative is not a licensed lawyer but can provide limited assistance in immigration matters work for a recognized organization and are authorized by the Board of Immigration Appeals (BIA).  

In Latin American countries, “notario publicos” are qualified lawyers who can provide a variety of consumer and legal services.  They issue judicial opinions, ensure payment of taxes, and certify legal documents such as wills, deeds and real estate purchases.  In the United States, however, people posing as notarios lack licenses and training.  Using a Notario on an immigration case can be very damaging.  Making mistakes on an asylum or residency application could lead to someone's deportation.  Trying to undo the mistakes that someone has made can be very complicated and end up costing someone a lot of money. 

With comprehensive immigration reform in the news, there is a very real possibility that notarios and other unauthorized consultants will try to take advantage of the public.  AILA warns that people should be wary of people claiming that the new law is already in place.  Check out these FAQs for more information.  If you have questions or concerns about your immigration case, please contact us to set up a consultation.

First Draft of Immigration Reform Bill

On Wednesday this week, a bipartisan group of Senators filed an 844 page immigration bill on the Senate floor, setting the stage for months of public debate over the proposal.  The bill, called the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, is complicated and full of mechanisms meant to tackle border security, the allocation of visas, methods of employment verification and the much-debated citizenship path.

The first part of the bill focuses on border security with the stated goal of achieving and maintaining effective control in high-risk sectors along the Southern border.  The bill would appropriate significant funding for border security, including revamping surveillance systems and detection capabilities, hiring additional border patrol agents, using unmanned aerial systems to patrol the border, and erecting additional fencing.

The second part of the bill addresses legalization and legal immigration.  The bill would allow undocumented immigrants to adjust their status to the legal status of Registered Provisional Immigrant (RPI).  An individual would be eligible if they resided in the U.S. prior to December 31, 2011 and maintained continuous presence since then.  RPIs would have to pay a $500 penalty fee (except for DREAM Act eligible students) and assessed taxes, in addition to the application fee.  Applicants would be ineligible if convicted of a felony, three or more misdemeanors or an offense under foreign law; if they had unlawfully voted; or if they are inadmissible for other criminal, national security, public health or morality grounds. 

Spouses and children of people in RPI status could derive status from the principal applicant, but would have to be living in the U.S. at the time of application.  Individuals currently in removal proceedings and with removal orders would be allowed to apply.  Interestingly, it also allows individuals outside of the U.S. who were previously here before December 31, 2011 and were deported for non-criminal reasons to reapply to re-enter the U.S. as an RPI if they were the spouse, parent or childe of a U.S. Citizen or Lawful Permanent Resident.

The proposed application period to apply for RPI status would be 1 year with the possibility of an additional 1-year extension.  RPIs would be allowed to work for any employer and travel freely outside of the U.S.  RPI status would last for a 6-year term and would be renewable so long as the immigrant did not commit any act that would render him/her deportable.  The RPI would have to pay another $500 fine in order to renew. 

After 10 years, RPIs would be able to adjust to Lawful Permanent Resident Status as long as they had maintained continuous physical presence, paid all taxes owed during the period they were RPIs, worked regularly in the U.S., demonstrated requisite knowledge of Civics and English, and paid a $1,000 penalty.  People in DREAM Act Status and the Agricultural Program would be able to get their green cards in 5 years.  DREAM Act children would be eligible for citizenship immediately after they got their green cards.

The bill addresses a number of other areas of immigration reform.  It purports to eliminate the backlog for family and employment-based immigrants.  It also establishes a merit based visa after 5 years of enactment.  The bill is far too dense to discuss it in full in this posting.  It is certainly a good starting point, but also something that needs to be discussed further, nurtured and improved upon. 

Real Estate Market Heats Up

As the economy slowly improves, the real estate market is heating up in Massachusetts. CNN reports that bidding wars are back, with an unbelievable 250 bidders on one Cambridge property. Advisor Vincent Costantini says that real estate markets are building strength across the country, and the Boston area is especially popular. Both rents and sale prices are rising.

If you are thinking of buying or selling your home or commercial property and would like to consult a lawyer, or if you are facing a property dispute, Glickman Turley offers real estate legal services throughout the Boston area. Click here for more details.

Senators May File Immigration Bill Today

Today the "Gang of 8" lawmakers may release their draft bill. Even Sen. Marco Rubio is said to support this negotiated compromise to immigration reform.

The bill is rumored to address topics previously reported in the media, including a ten-year waiting period for undocumented immigrants; a multi-million dollar increase in border security funding; and special provisions for "DREAMers," or children who do not have legal status but have been raised and educated as Americans. The bill may also include special provisions for agricultural and other workers. Businesses are pushing for increased visa eligibility for engineers and tech workers, which would help immigrant entrepreneurs. Unfortunately, the bill could also end the "diversity visa" program and reduce the availability of visas for family members of U.S. citizens.

However, even when the Senate bill is released, this first draft could look significantly different from the final version. A poll by the Washington Post shows popular support for a "path to citizenship," but that issue is still contentious within Congress.

Immigration Reform Needs to Include Everyone

As Congress debates, negotiates, and writes immigration reform legislation, various groups of people are working to make sure their interests are included.

Tech companies are interested in making sure they can hire the best immigrant workers. LGBT couples would like specific provisions to ensure family unity. Supporters of the "DREAM Act" want to make sure that undocumented students and young people have the opportunity to gain legal status. It is unclear whether Congress will emphasize family connections or work skills in deciding who gets priority in becoming a citizen.

Do you have opinions on how immigration reform should proceed? What would you like included? Click here to find out how to contact your Senator and Representative. If you have questions about your rights under current immigration law, contact us.

Border Security is the Compromise for a Path to Citizenship

The Senate has come to a compromise on bill language, the New York Times reported today. In exchange for a path to citizenship for many immigrants currently in the US, the senators want to strengthen border security, at huge expense to taxpayers. The estimated $3.5 billion plan includes a mandatory worker verification system, an electronic visa system at all entry and exit ports to the US, and surveillance capabilities along the entire length of the U.S. border.

While the plan does offer undocumented immigrants an opportunity to apply for green cards, this plan would also make them wait ten years before they could begin to apply. Even worse, the availability of applications may depend on whether the border security programs are operational.

The senators seem to agree with the idea that undocumented immigrants should be given a way to become American citizens. However, this plan seems to thwart that goal. How will people manage to work when there is a mandatory verification system? Will they be able to visit their families during the 10-year waiting period, or will they be blocked by the electronic visa system? This bill is in its early stages, and there is no guarantee that the final result will have any of these provisions.

How Long Will We Wait for Immigration Reform?

Congress continues to negotiate immigration reform, and there is no clear timeline on when its members will come to an agreement. Senators are divided on whether they will actually make an agreement on language for an immigration reform bill by the end of the week, as hoped. They are focusing currently on plans to give agricultural workers and farmworkers a path to citizenship. However, Senator Marco Rubio of Florida has still not given any strong indication of his support for any proposed bill. In the House, a group of representatives wrote a bill aimed at using technology and data to improve border security.

Immigration reform is critical right now for everyone, but especially for gay and lesbian immigrants. If the Supreme Court creates federal same-sex marriage, this will have far-reaching immigration consequences for gay and lesbian partners of American citizens.

Read more here:
http://thecaucus.blogs.nytimes.com/2013/04/09/timing-of-senate-immigration-bill-remains-unclear/

NY Court finds lack of authority for breed specific prejudice.

In a victory for pit bull dogs, on April 4, 2013,  the New York Supreme Court, Appellate Division, dismissed a judgment from the lower court finding a pit bull type dog dangerous by virtue of its breed.   The case is based on an incident in November 2011, when a pit bull who had a collar on, was wearing a harness and was on a leash was attacked by a German Shepherd who broke loose from its tether.  The dogs fought and both were injured. The pit bull was determined to be a “dangerous dog” and its owner was ordered to pay a portion of the shepherd's veterinary bills even though it remained leashed throughout the incident.  The pit bull's owner appealed. The upper court noted that the law defines a dangerous dogs as a dog that “without justification” attacks a person, companion animal … or domestic animal … and causes physical injury or death.”  A dog shall not be declared to be dangerous if its conduct “was justified because the dog was responding to pain or injury, or was protecting itself [or] its owner…” The Supreme Court stated "The condemnation of an individual dog in the context of a dangerous dog proceeding solely by virtue of its breed is without any legal basis. We have repeatedly held that “‘there is no persuasive authority for the proposition that a court should take judicial notice of the ferocity of any particular type or breed of domestic animal.’”  The case is titled  The People of the State of New York v. Diana Shanks.   Glickman Turley LLP can help you protect your dog from breed discrimination. Call us for a consultation: 617-399-7770.

The House Proposes Three Pathways to Citizenship

On April 2^nd, The New York Times reported on a bipartisan immigration proposal being prepared in the House of Representatives.  This proposal would offer three distinct pathways to citizenship for the nation's estimated 11 million undocumented immigrants.  This is in contrast to the Senate plan, which would provide one pathway to citizenship for undocumented immigrants already in the country.

The House plan would basically divide undocumented immigrants into three groups.  The first group would include undocumented youth (also known as “dreamers”), who were brought to the US as children, and low-skilled agricultural workers.  This group would qualify for expedited legal status.  It would be interesting to know what "expedited" really means - weeks, months, years?

The second group would include undocumented immigrants who would otherwise be able to apply for legal status through a family member or employer, except that they are currently out-of-status (expired visa) and are subject to a 3 or 10 year bar if they leave the country.  The House bill would supposedly ease the 3/10 year waiting period, but would still require them to return to their country at some point in order to apply for adjustment of status.  Without more detail, it is hard to see how this portion of the House plan differs all that much from the current law.

The last group includes all undocumented immigrants who do not fall into groups 1 or 2.  This group would have the longest pathway to citizenship.  They would be allowed to apply for provisional legal status if they came forward, admitted to breaking the law, paid fines and back taxes, and learned to speak English.  This provisional status would allow them to work and live in the U.S. legally.  After ten years, they would be allowed to apply for a green card.  Ten years is a long time to wait, especially if you've already been living in the U.S. for a while.  

How to Read a USCIS Processing Time Report

The United States Citizenship and Immigration Services (USCIS) publishes a monthly report on processing times at its service centers.  The Service Centers may vary according to which type of application you are submitting.  In New England, a variety of applications are processed at the Vermont Service Center, which released a new Time Report on April 3 with processing dates as of 2/28/13. 

So, how do you read a Time Report?  There are four columns:  “Form,” “Title of Form,” “Classification or Basis for Filing,” and “Processing Timeframe.”  Make sure you have the right form number and classification.  The processing dates represent the receipt dates of petitions and applications currently being processed by the Service Center.  If a certain type of application is being completed within USCIS target timeframes, the timeframe of days, weeks, or months will be shown.  If a USCIS service center doesn't meet the target timeframe, a date will be shown (January 1, 2009) to indicate what cases they are currently processing. 

For example, USCIS set a goal to complete an I-765 Employment Authorizations for Asylum Seekers within 3 weeks, and the service center is meeting this goal, so the processing report shows “3 weeks.”  Notice that the processing times may vary greatly for the same form, but a different classification.  For example, the processing time for an I-765 for someone who has a pending adjustment of status application (I-485) is three months.

For an example where USCIS is not meeting its processing goal, look at the processing time for an I-130 Petition for a U.S. citizen filing for a spouse, parent, or child under 21.  In the column for “Processing Timeframe,” the date listed is “August 6, 2012,” which means that USCIS is processing applications received on August 6, 2012.