On June 26th, 2013, the United States Supreme Court issued its ruling in United States v. Windsor, also known as the DOMA (Defense of Marriage Act) case. In its decision, the Supreme Court held that the federal law’s provision that limited the federal definition of “marriage” as only between one man and one woman was unconstitutional. This paves the way for over one thousand federal benefits to be bestowed upon same-sex couples who are legally married.
As the immigration laws in the U.S. are controlled by the federal government, this ruling also affects same-sex couples in the immigration context. Janet Napolitano, the Secretary of the Department of Homeland Security, which oversees all immigration applications in the U.S., stated, “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.” In other words, same-sex partners of U.S. Citizens will be able to apply for green cards based on their marriage, just as heterosexual couples currently do. In addition, in immigration removal proceedings, certain applications for relief that rely on a showing of hardship to the U.S. Citizen spouse will also be open to same-sex couples. There are multiple avenues that are now open to same-sex couples, and you should be sure to consult with an immigration attorney prior to filing applications for immigration benefits.
We have been watching this issue as it has progressed through the courts. We applaud the Supreme Court’s decision, as it has opened the door for thousands of same-sex couples to seek the right to obtain immigration status in the U.S. We are ready to speak with individuals who may have questions regarding how the Supreme Court’s ruling could affect their particular situation. If you are in a same-sex relationship and would like to discuss your immigration situation, please give us a call at 1-888-233-7002 and we will gladly discuss your case with you and see if we will be able to help.
On June 15, 2012, the Department of Homeland Security (DHS), the U.S. agency that oversees all immigration enforcement, announced that certain people who came to the United States as children would be eligible to apply for something known as deferred action, so long as they met other requirements as well. Deferred action means that even if you are in the United States illegally, DHS will not try and deport you and send you home for two years. If you are given deferred action, it will be valid for two years, and you would be eligible to apply to work legally in the United States as well.
There are a few rules that cover whether you are eligible for this new policy. The following list are some of the factors that you need to look at when determining if you would fall under this policy, and our office can help you determine whether or not you have a good case for this type of application.
- Were you younger than 31 years old on June 15, 2012?
- Did you come to the United States before you turned 16 years old?
- Have you resided in the United States since June 15, 2007 and still live here today?
- Were you in the United States on June 15, 2012? Will you be in the United States when you file your application?
- Did you enter without having a U.S. immigration officer give you permission?
- Did you have permission and a legal status, but it expired and you stayed longer?
- Are you currently in school?
- Have you graduated, or have you obtained a certificate of completion from a high school in the United States?
- If you did not finish high school, have you gotten your GED?
- If you did not finish school, and you also do not have your GED, are you an honorably discharged veteran of the U.S. Coast Guard or another branch of the Armed Forces?There is one more step, and these answers need to be “No” to be eligible:
- Have you been convicted of a felony?
- Have you been convicted of a significant misdemeanor?
- Have you been convicted of three or more misdemeanors?
- Do you pose a threat to national security or public safety?
Our firm is prepared to assist individuals who believe they are eligible for the new deferred action explained in this letter. There are many factors that need to be reviewed, to make sure that you fit each specific rule for this program. We can assist with things such as whether you have continuous residence, what documents should be submitted, etc.
We never charge someone to come and talk to us about his or her issues, so there is no risk is calling us. We will do our best to help you apply for this program, but if you are not eligible, we will help you determine what else you may be eligible for, so that you can still apply for legal status in the United States.
US Supreme Court Rejects BIA Deportation Waiver Policy As Arbitrary and Capricious
Last week, the US Supreme Court’s unanimous decision in Judulang v. Holder struck down the Board of Immigration Appeals (BIA) approach for deciding when non-citizens are eligible for a discretionary waiver of deportation under section 212(c) of the Immigration and Nationality Act.
Mr. Judulang had been in proceedings to be removed from the United States on the ground that he had committed an “aggravated felony” involving a “crime of violence.” The BIA ruled that a “crime of violence” was not “comparable” to any ground for exclusion, rendering Mr. Judulang ineligible for Section 212(c) relief. The Ninth Circuit Court of Appeals affirmed this decision before it was accepted by the Supreme Court.
In its unanimous decision written by Justice Kagan, the Supreme Court held that the BIA policy for deciding when resident aliens may apply to the Attorney General for relief from deportation under INA section 212(c) is “arbitrary and capricious.” The Court highlighted that:
“The comparable-grounds approach does not rest on any factors relevant to whether an alien (or any group of aliens) should be deported. It instead distinguishes among aliens – decides who should be eligible for discretionary relief and who should not – solely by comparing the metes and bounds of diverse statutory categories in which an alien falls. The resulting Venn diagrams have no connection to the goals of the deportation process or the rational operation of the immigration laws.”
In conclusion, the Court ruled,
“We must reverse an agency policy when we cannot discern a reason for it. That is the trouble in this case. The BIA’s comparable-grounds rule is unmoored from the purposes and concerns of the immigration laws. It allows an irrelevant comparison between statutory provisions to govern a matter of the utmost importance—whether lawful resident aliens with longstanding ties to this country may stay here. And contrary to the Government’s protestations, it is not supported by text or practice or cost considerations. The BIA’s approach therefore cannot pass muster under ordinary principles of administrative law.
Goldstein & Associates, LLC applauds this decision of the US Supreme Court, which marks the end of a policy that turned many deportation cases into a sport of chance. As practitioners that work with complex deportation and removal cases, the attorneys at Goldstein & Associates know the importance of just decisions such as this one. As the case law develops with regard to deportation defense and litigation, we strive to uncover ways to apply new precedent decisions so that they may benefit our existing clients. In Judalong, the Supreme Court strengthened the framework of our immigration laws in a way that will allow for fair hearings on discretionary waiver of deportation cases under former section 212(c) of the INA.