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.