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  Once the person is deported, the government treats the motion as if it is "withdrawn" and rejects it.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.