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.