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Over 15,000 Readers Across 140 Countries – Miami Visa Help Blog Thanks You, Readers


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If you have any issues that you wish addressed, please contact Miami International Attorneys, P.L., at abernhard@miapl.com, 786-566-1969, www.miapl.com.

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DOMA and Gay Immigration


 

 

“A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.” – Chief Judge Dennis Jacobs, United States Second Circuit Court of Appeals, Windsor v. U.S.

 

Pro and anti-Proposition 8 protesters rally in...

Pro and anti-Proposition 8 protesters rally in front of the San Francisco City Hall as the California Supreme Court holds a session in the to determine the definition of marriage (Strauss v. Horton cases). (Photo credit: Wikipedia)

 

Many are heralding the Supreme Court decision striking down DOMA, Windsor v. U.S., as a watershed moment for same-sex couples seeking immigration benefits. Because the Windsor decision is so fresh, and because the decision may have striking implications for the gay immigrant community, MIA provides this tutorial of the Windsor decision to illuminate the background, meaning, and effect on same-sex immigration.

 

You may be asking the following questions:

 

What is DOMA?

 

What is same sex marriage law?

 

What is the law on gay marriage?

 

What are gay marriage rights?

 

What are arguments for gay marriage?

 

How does DOMA affect gay immigration?

 

This article is designed to provide a tutorial of the DOMA decision for same-sex couples hoping for federal immigration benefits.

 

 

 

 

 

What is DOMA?

 

In 1996, as some states began to consider same-sex marriage, Congress enacted the Defense of Marriage Act (“DOMA”).

 

The entire DOMA is less than 350 words, and reads in pertinent part:

 

An Act to define and protect the institution of marriage.

 

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

 

SECTION 1. SHORT TITLE.

 

This Act may be cited as the “Defense of Marriage Act”.

 

SEC. 2. POWERS RESERVED TO THE STATES.

 

(a) In General. The United States Code is amended by adding the following:

 

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such  relationship.”

 

SEC. 3. DEFINITION OF MARRIAGE.

 

(a) In General. The United States Code is amended by adding at the following:  `

 

Definition of “marriage” and “spouse”: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. Approved September 21, 1996.

 

 

 

As you can see, DOMA contains to operative sections. Section 2 allows states to refuse to recognize same-sex marriages that occurred in other states. For example, where Canada, New York, Massachusetts, or Vermont may recognize same-sex marriage, North Dakota may not. If a same-sex couple gets married in Vermont, North Dakota does not have to recognize that marriage in North Dakota, under Section 2 of DOMA. Section 2 remains intact today.

 

Section 3 amends the Dictionary Act to provide a federal definition of “marriage” and “spouse.” This section 3 does not prohibit the states from making laws that recognize same-sex marriages or providing state benefits to same-sex couples. However, Section 3 does prohibit same-sex couples to collect federal benefits provided to couples. This is the part of DOMA that is no longer in effect.

 

 

 

Why does DOMA matter?

 

DOMA matters both in principle and in practicality. In principle, DOMA plays a role in the debate as to whether we, as a society, should recognize the legitimacy and propriety of homosexuality in general, and whether we, as a society, should treat gay individuals and couples as equals.

 

English: Another version of the same-sex marri...

English: Another version of the same-sex marriage map. (Photo credit: Wikipedia)

 

In practicality, DOMA either provides or removes federal government benefits to same-sex couples. Keep in mind the difference between state government benefits and federal government benefits.

 

For example, Florida provides these state benefits: Florida Food Assistance Program (food stamps), Florida KidCare (low-cost health insurance for kids), Florida Low-income Home Energy Assistance (home heating and cooling), Florida Medicaid, Florida unemployment pay, Florida home weatherization, etc. Florida, as a state, also provides a homestead protection to spouses, restraining a homeowner from selling or devising a house without the approval of his or her spouse, and providing property tax breaks. Under DOMA, Florida could make law to extend these benefits to spouses in same-sex couples, particularly the homestead exceptions.

 

Federal benefits are different, and include social security (surviving spouses receive federal social security and support), tax breaks (there are nearly 200 federal tax provisions that account for marital status, including for estate and retirement money), family and medical leave (guarantees leave from work to care for spouses), government employee benefits for spouses, COBRA health care coverage for former employees, and immigration (almost 75% of all green cards or immigrant visas issued are granted to family members of permanent residents). Under DOMA, the federal government could not extend any of these benefits to spouses in same-sex couples.

 

 

 

Before DOMA: Baker v. Nelson

 

The major case to come before the Supreme Court on the issue of gay marriage was Baker v. Nelson, back in 1972. In Baker, somebody challenged the legality of a Minnesota state law that denied a marriage license to a same-sex couple. The denied couple brought a lawsuit (an action) against the state of Minnesota, arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” The Supreme Court ruled that the use of the traditional (man and woman) definition of marriage by a state, in a state law, for that state’s own regulation of marriage status did not violate the United States Constitution. The distinctions between the Minnesota law in Baker and the federal law in DOMA are that (1) the government making the law is different (Minnesota state congress vs. U.S. federal congress); (2) the law works in different ways (Minnesota law precluded Minnesota government from issuing a same-sex marriage license, DOMA redefines the meaning of “spouse” and “marriage” for over 1,000 different federal laws on various issues, including all federal benefits); (3) the law effects a different number of people (Minnesota law effected only people living in Minnesota vs. DOMA effected the entire country); and (4) the laws were enacted at different times (Minnesota enacted before 1970 vs. DOMA enacted in 1996).

 

 

 

Marriage Day

Marriage Day (Photo credit: Fikra)

 

Before DOMA: Baehr v. Lewin (Baehr v. Miike)

 

Baehr was a lawsuit filed in 1990 in which three same-sex couples argued that Hawaii’s law prohibiting same-sex marriage violated the Hawaii state constitution. The couples applying to Hawaii’s Department of Health for a marriage license met all of Hawaii’s requirements to marry except that they were same-sex couples. Hawaii’s Attorney General advised the Hawaii Department of Health that only different-sex couples had a fundamental right to marry, and so the Hawaii Department of Health denied a marriage license to these same-sex couples. When the same-sex couples’ lawsuit reached the Hawaii Supreme Court, that court decided that denying a marriage license to same-sex couples was discrimination that required a strictly-scrutinized justification, meaning the Hawaii government had to prove that the discrimination furthered “compelling state interests and was narrowly drawn to avoid unnecessary abridgements of constitutional rights.”

 

The Baehr case had an enormous impact. Primarily, it scared many in the U.S. federal congress. While drafting DOMA, the U.S. federal congress said that DOMA was “a response to a very particular development in the State of Hawaii. The state courts in Hawaii appear to be on the verge of requiring that State to issue marriage licenses to same-sex couples. The prospect of permitting homosexual couples to ‘marry’ in Hawaii threatens to have very real consequences both on federal law and on the laws (especially the marriage laws) of the various States.”

 

 

 

Why did the U.S. Congress enact DOMA in 1996?

 

One obvious justification is fear, as can be seen in the U.S. federal congress comments on the Baehr case, above. The U.S. Congress also provided several justifications for enacting DOMA to permanently define “marriage” and “spouse” to exclude same-sex couples on a federal, countrywide level. Those justifications were: (1) defending and nurturing the traditional institution of marriage; (2) promoting heterosexuality; (3) encouraging responsible procreation and childrearing; (4) preserving scarce government resources; and (5) defending traditional notions of morality.

 

Doma

Doma (Photo credit: Wikipedia)

 

Keep in mind that a New York federal court fully analyzed “every conceivable basis which might support [DOMA],” and found that these justifications were absolutely irrational. See Windsor v. U.S., 833 F.Supp. 2d 394, 403–06 (S.D. N.Y., June 6, 2012).

 

 

 

Who challenged the legality and constitutionality of DOMA?

 

Edie Windsor, an 84-year-old woman residing in the state of New York, challenged the constitutionality of DOMA. Her personal conflict with the provisions of the DOMA law came out of her relationship with another woman, Thea Spyer, who she met in 1963 in New York City. Windsor and Spyer began a committed relationship. They registered as domestic partners in New York in 1993, and married in Canada in 2007. Because of DOMA’s definition of “marriage” and “spouse,” Windsor and Spyer were not eligible for recognition as a married couple under U.S. federal law.

 

 

 

Why did Edie Windsor challenge DOMA?

 

When Windsor’s partner, Thea Spyer, died in 2009, Spyer left all of her possessions and money (her estate) to Windsor.

 

Often, recipients of an estate must pay federal taxes on the money that they inherit. However, if a couple is married and one spouse dies, the surviving spouse doesn’t have to pay taxes on the estate until he or she also dies. This is called the marital tax deduction under federal law. Of course, because Windsor and Spyer were not eligible for recognition as a married couple under U.S. federal law, Windsor could not claim this marital deduction under federal law.

 

Because Windsor was not eligible for a marital tax deduction under DOMA, she had to pay $363,053 in taxes to the U.S. government.

 

Marriage

Marriage (Photo credit: Lel4nd)

 

 

 

How did Edie Windsor challenge DOMA? – the 5th Amendment

 

Edie Windsor sued the United States of America for a refund of the taxes she paid. In order to get a refund, she argued that she was improperly denied recognition as “spouse” of Thea Spyer. In order to prove that she was improperly denied recognition, Windsor argued that DOMA was an invalid law. To prove that DOMA was invalid, Windsor said that it contradicted the 5th Amendment of the U.S. Constitution, which states:

 

English: United States Supreme Court building ...

English: United States Supreme Court building in Washington D.C., USA. Front facade. (Photo credit: Wikipedia)

 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 

U.S. Courts have interpreted the statement that “No person shall . . . be deprived of . . . property, without due process of law” to mean that all people should get equal protection under the laws. Thus, Windsor argued, the 5th Amendment requires that she and Spyer be given equal protection as all other married couples in the U.S. If DOMA did not recognize their marriage simply because they were both women, then DOMA did not give them the equal protection afforded to same-sex couples, as required by the 5th Amendment.

 

Said in the reverse order, Windsor argued:

 

Married couples normally get tax deductions > DOMA prohibits some married couples from getting tax deductions (i.e. discrimination) > prohibiting only some couples from tax deductions is unequal discrimination > the 5th Amendment requires equality > thus, DOMA is unenforceable under the 5th Amendment > DOMA cannot prohibit federal law from recognizing my marriage > I should have gotten a marital deduction > the U.S. government must pay back my $363,053 in taxes.

 

 

 

What did Windsor have to prove to win?

 

Windsor had to prove that the discrimination in DOMA was not substantially related to an important government objective. In other words, she had to show that the U.S. government did not have some important goal that it was trying to further that required discrimination against same-sex couples.

 

 

 

Why did the U.S. government say that discrimination of same-sex couples was necessary?

 

As discussed above, the U.S. governments argued that it was necessary to discriminate against same-sex couples for the following five reasons:

 

(1) to defend and nurture the traditional institution of marriage; (2) to promote heterosexuality; (3) to encourage responsible procreation and childrearing; (4) to preserve scarce government resources; and (5) to defend traditional notions of morality.

 

 

 

What did the U.S. Supreme Court say about Windsor’s arguments?

 

U.S. Supreme Court, 1998.

U.S. Supreme Court, 1998. (Photo credit: Wikipedia)

 

The Court pointed out that:

 

(1) a government cannot punish the private, consensual sexual intimacy between two adult persons, as that is simply not the role of the U.S. government;

 

(2) the federal government rarely involved itself in legal issues regarding family, as family law is traditionally determined by the local governments;

 

(3) the discriminatory provisions of DOMA placed a stigma upon all people who had entered into same-sex marriages made lawful by the local governments;

 

(4) DOMA’s discrimination appeared to be a bare desire to harm a politically unpopular group.

 

In conclusion, the U.S. Supreme Court stated: “DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.” Thus, DOMA is unconstitutional and unenforceable.

 

In essence, Windsor won, and the U.S. government had to repay Windsor the $363,053 in taxes.

 

"Lesbian" wedding mock-cake at the R...

“Lesbian” wedding mock-cake at the Roma Gay Pride in 2008. Picture by Stefano Bolognini, June 7 2008. (Photo credit: Wikipedia)

 

 

 

What does this mean for immigration?

 

Because DOMA is unenforceable, each state gets to determine whether it recognizes same-sex marriages. If a state recognizes the same-sex marriage, then the federal government must recognize that marriage as a valid marriage, and those spouses as entitled to federal benefits for married couples—including immigration benefits.

 

This means that if an American woman marries a woman from Mexico, the Mexican woman is eligible for a spouse’s derivative work visa or sponsorship for a marriage-based green card. A U.S. citizen can now marry his or her same-sex partner and apply for naturalization proceedings. A U.S. citizen may even marry his or her same-sex partner and petition for naturalization, even if they don’t live in a state that recognizes gay marriage.

 

The takeaway is that homosexuality as a particular social group providing for international and national protection is taking hold. The idea has taken root, and the seas are changing. It will now be more interesting to see how the Courts interpret asylum petitions based on sexual orientation as we move forward.

 

Until next time. Stay tuned.

 


Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

 

For more answers to your questions, contact abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

 

After DOMA – a look back at the USCIS vision on sexual orientation – asylum


“By definition these claims involve the most private of matters – sexual orientation, gender identity, and sometimes serious illness. Always remain respectful and nonjudgmental, don’t be afraid to acknowledge your discomfort for yourself and to the applicant. Familiarize yourself with the legal nuances involved in these types of cases and do your best to elicit all relevant details without re-traumatizing the applicant or being insensitive.” – USCIS LGBT Training Module

Logo of United Nations Refugee Agency.Version ...

Logo of United Nations Refugee Agency.Version made by user Kashmiri. (Photo credit: Wikipedia)

The USCIS Guidelines Training Module

On December 27, 2011, the USCIS issued a training module providing guidance for adjudicating lesbian, gay, bisexual, transgender, and intersex (LFBTI) refugee and asylum claims.

The Required Reading

It is worth noting that the module required certain reading, including:

  • Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822-23 (1990),
  • 2004 USCIS Yates Memo on filings by transsexual individuals,
  • 2008 UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity,
  • 2009 USCIS Neufeld-Scialabba Memo on filings by transsexual individuals.

Matter of Toboso-Alfonso

cuban refugees

cuban refugees (Photo credit: sandyfeet)

The Matter of Toboso-Alfonso (1990), the applicant, who had the status of being a homosexual, established his membership in a particular social group in Cuba and showed that his freedom was threatened within the meaning of section 243(h)(1) if the INA, on account of his membership in that group. There, the applicant was a 40-year-old Cuban who was paroled to the U.S. in 1980 via the Mariel boat-lift. When his parole terminated, he applied for asylum out of Texas, a state not commonly known for its legal or social acceptance of homosexuality. Importantly, the Court agreed that his freedom or life would be threatened due to such events as frequent detention for days by government officials while being subjected to verbal and physical abusive treatment. Based on these findings, the Court upheld the cancellation of deportation of Toboso-Alfonso.

Paredes v. U.S. Attorney General

Refugee camp for Rwandans located in what is n...

Refugee camp for Rwandans located in what is now eastern Democratic Republic of the Congo following the Rwandan Genocide. (Photo credit: Wikipedia)

In 2007, the Eleventh Circuit U.S. Court of Appeals, that governing over Florida, affirmed a Venezuelan’s removal despite his petition asylum based on sexual orientation. The Court held that substantial evidence supported the immigration judge’s determination that the alien, and HIV-infected native and citizen of Venezuela, would not be singled out for future persecution based on his sexual orientation or health status if he returned to Venezuela, as required for asylum. The 11th Circuit found that the record indicated that the Venezuelan government had taken affirmative steps toward protecting homosexual individuals and HIV-infected individuals, the Venezuelan Supreme Court ruled that health care for HIV-infected individuals had to be freely available from the government, and the government proposed a constitutional amendment to prohibit discrimination on the basis of sexual orientation, but it ultimately did not pass, and the government banned employers from requiring employees to undergo blood tests prior to employment. Paredes, the applicant, filed his petition seeking relief for his membership in a particular social group. According to the Court, Paredes had not experienced past harm or mistreatment in Venezuela, but feared such if he returned to Venezuela. The failure of Paredes’ application appears to have been his inability to allege actual experience of persecution, even though Paredes at least alleged that he had witnessed two raids on gay bars by the Venezuelan police, and that the Venezuelan police regularly stop, harass, extort, or sexually abuse gay people, and do not enforce the law in favor of homosexuals. Nevertheless, the Court found that Paredes “admits that he had suffered no past persecution in Venezuela.” Based on the Court’s review of country-wide reports, including a 2003 country report that did not mention human rights violations against homosexual individuals, the Court found that Paredes failed to establish eligibility for asylum or withholding of removal. The case set a high standard for proof.

UNHCR Note

Gay Parade 2007, Buenos Aires.

Gay Parade 2007, Buenos Aires. (Photo credit: Wikipedia)

The UNHCR (United Nations Commisioner for Refugees) 2008 Note was also issued to provide guidance on legal issues in respect of refugee claims related to sexual orientation and gender identity. The Note discussed that sexual orientation is a fundamental part of human identity, akin to race, religion, nationality, membership of a particular social group and political opinion, and that international and regional jurisprudence and legal doctrine affirm that discrimination on account of a person’s sexual orientation is prohibited. The note also discussed the deleterious effect of laws criminalizing homosexual conduct, persecution and its agents. The Note held that the term “political opinion” should be broadly interpreted to incorporate opinions on sexual orientation and gender identity, and that homosexuals may constitute a particular social group. In conclusion, the Note found that because international and national developments in sexual orientation case law clearly show that LGBT persons may be recognized as a “particular social group,” they are entitled to protection under the 1951 Convention (the UNHCR Treaty).

2009 Neufeld Memo and Matter of Lovo-Lara

Sexuality confusion

Sexuality confusion (Photo credit: Wikipedia)

Sexuality confusion (Photo credit: Wikipedia)

The 2009 Neufeld Memo is a 6-page discussion to provide guidance on the Matter of Lovo-Lara (2005) in relation to adjudication of visa petitions in which a claimed spouse has undergone sex reassignment surgery. Under Lovo-Lara, USCIS may approve a petition if the petitioner establishes that the surgery resulted in a legal sex change, and that the marriage is recognized as a valid heterosexual marriage. Lovo-Lara was groundbreaking in that previous USCIS policy disallowed recognition of a change of sex for the purpose of spousal immigrant petitions, as discussed by Yates in his 2004 Memo. The 2009 Neufeld Memo stated that the Lovo-Lara principle is binding on the USCIS, no matter where the marriage took place. The Lovo-Lara decision literally rewrote the law, revising AFM Ch. 21.3(a)(2)(j) in its entirety.  The Neufeld Memo also pointed out the U.S. states that DO recognize transsexual marriages as valid heterosexual marriages, including: North Carolina, New Jersey, and Maryland. The Neufeld Memo also pointed out that Florida, along with Illinois, Kansas, Ohio, Tennessee, and Texas DO NOT recognize transsexual marriages as valid heterosexual marriage.

The USCIS Training Guide 2011-2012

Based on the above required reading, the USCIS Training Guide went on to provide legal analysis of 1) the Nexus and the Five Protected Grounds for refugees and asylees; 2) persecution and eligibility based on past persecution; 3) well founded fear; 4) interview considerations; and 5) evidence assessment. HINT: The Guidelines Summary, located on pages 46-50, are a necessary reading for anybody attempting to analyze an asylum or refugee application based on sexual orientation. The Guide’s conclusion provided poignant words of advice: “By definition these claims involve the most private of matters – sexual orientation, gender identity, and sometimes serious illness. Always remain respectful and nonjudgmental, don’t be afraid to acknowledge your discomfort for yourself and to the applicant. Familiarize yourself with the legal nuances involved in these types of cases and do your best to elicit all relevant details without re-traumatizing the applicant or being insensitive.”

Icon for Wikimedia project´s LGBT portal (Port...

Icon for Wikimedia project´s LGBT portal (Portal:LGBT). (Photo credit: Wikipedia)

The takeaway is that homosexuality as a particular social group providing for international protection is taking hold. The idea has taken root, and the seas are changing. It will be very interesting to see how the Courts interpret asylum petitions based on sexual orientation as we move forward with the 2008 UN Note, the 2009 Neufeld Memo, and the 2011 USCIS Guidelines.

Until next time. Stay tuned.


Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact Andrew John Bernhard, Esq. at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

 

The Burden of Proof for Asylum and Withholding of Removal


English: United States Supreme Court building ...

English: United States Supreme Court building in Washington D.C., USA. Front facade. (Photo credit: Wikipedia)

 

This article briefly addresses the two distinct burdens of proof to establish eligibility for asylum and to establish entitlement to withholding of removal. The article intends to show the similarity of considerations, and the disparity of the burden.

 

 

We recommend reviewing these four cases:

 

English: Examples of burden of proof for state...

English: Examples of burden of proof for statements. (Photo credit: Wikipedia)

 

Fahim v. U.S. Atty. Gen., 278 F. 3d 1216 (11th Cir. 2002);

 

Mendoza v. U.S. Atty. Gen., 327 F. 3d 1283 (11th Cir. 2003);

 

D-Muhumed v. U.S. Atty. Gen., 388 F. 3d 814 (11th Cir. 2004);

 

Henrys v. U.S. Atty. Gen., 184 Fed. Appx. 822 (11th Cir. 2006).

 

 

 

First, an applicant should note that uncorroborated but credible testimony from the applicant may be sufficient alone to sustain the burden of proof for asylum or withholding of removal. See 8 C.F.R. § 208.13(a). However, when applying, each applicant should consider that the standard to establish withholding of removal is more stringent than the ‘well-founded fear’ standard for asylum.

 

proof.front

proof.front (Photo credit: bhrome)

 

 

 

ASYLUM: the burden of proof

 

To establish asylum eligibility, an applicant must establish a ‘well-founded fear’ that his or her political opinion (or other statutorily listed factor) will cause harm or suffering that rises to the level of persecution. See 8 U.S.C. § 1101(a)(42)(A). Demonstrating such a connection requires the applicant to present specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution on account of such an opinion (or other factor). The fear of persecution had to be both “subjectively genuine and objectively reasonable.”

 

If the applicant establishes past persecution, the burden shifts to the government to prove by a preponderance of the evidence that (1) there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution, or (2) the applicant could avoid future persecution by relocating to another part of his or her country. See 8 C.F.R. § 208.12(b)(1)(i-ii) and (b)(2).

 

 

 

An American judge talking to a lawyer.

An American judge talking to a lawyer. (Photo credit: Wikipedia)

 

WITHHOLDING OF REMOVAL: the burden of proof

 

An applicant is entitled to withholding of removal if his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.

 

An applicant should not be removed to a country if his or her life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. See INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). An applicant bears the burden of demonstrating that he more-likely-than-not would be persecuted or tortured upon his return to the country in question. If the applicant demonstrates past persecution on account of one or more of these factors-race, religion, nationality, membership in a particular social group or political opinion-he or she is presumed to have a well-founded fear of future persecution (on such basis) unless the government rebuts the presumption. See 8 C.F.R. § 208.16(b)(1)(i). As above, the government must show by a preponderance of the evidence that, among other things, (1) the country’s conditions have changed such that the applicant’s life or freedom would no longer be threatened upon his removal; or (2) that the alien could avoid a future threat to his life or freedom by relocating to another part of the proposed country of removal, and it would be reasonable to expect him to do so.

 

If, however, the applicant does not establish such past persecution, the applicant may still be entitled to withholding of removal if he can demonstrate a future threat to his life or freedom on a protected ground in his country. The applicant bears the burden of showing a well-founded fear of future persecution by showing that (1) he or she fears persecution based on one or more of the above factors; (2) there is a reasonable possibility he or she will suffer such persecution if he or she returns to his or her country; and (3) he or she could not avoid such persecution by relocating to another part of the country, if under all the circumstances it would be reasonable to expect relocation. See 8 C.F.R. § 208.16(b)(2). If credible, the applicant ‘s testimony may be sufficient to sustain the applicant’s burden of proof without corroboration.

 

English: A statue of Justice on the tympanum o...

English: A statue of Justice on the tympanum of the Old Supreme Court Building, . (Photo credit: Wikipedia)

 

 

 

THE TAKEAWAY:

 

Note the similarity in both tests. However, again, the standard to establish withholding of removal is more stringent than the ‘well-founded fear’ standard for asylum. Thus, if an applicant fails to meet the standard for asylum, his or her petition for withholding of removal necessarily fails.

 

Most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.

 

Best of luck!
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

 

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

 

 

 

 

 

Looking for Florida’s Reaction to the 2011-12 USCIS Guidelines for Asylum Based on Sexual Orientation


“By definition these claims involve the most private of matters – sexual orientation, gender identity, and sometimes serious illness. Always remain respectful and nonjudgmental, don’t be afraid to acknowledge your discomfort for yourself and to the applicant. Familiarize yourself with the legal nuances involved in these types of cases and do your best to elicit all relevant details without re-traumatizing the applicant or being insensitive.” – USCIS LGBT Training Module

Logo of United Nations Refugee Agency.Version ...

Logo of United Nations Refugee Agency.Version made by user Kashmiri. (Photo credit: Wikipedia)

The USCIS Guidelines Training Module

On December 27, 2011, the USCIS issued a training module providing guidance for adjudicating lesbian, gay, bisexual, transgender, and intersex (LFBTI) refugee and asylum claims.

The Required Reading

It is worth noting that the module required certain reading, including:

  • Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822-23 (1990),
  • 2004 USCIS Yates Memo on filings by transsexual individuals,
  • 2008 UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity,
  • 2009 USCIS Neufeld-Scialabba Memo on filings by transsexual individuals.

Matter of Toboso-Alfonso

cuban refugees

cuban refugees (Photo credit: sandyfeet)

The Matter of Toboso-Alfonso (1990), the applicant, who had the status of being a homosexual, established his membership in a particular social group in Cuba and showed that his freedom was threatened within the meaning of section 243(h)(1) if the INA, on account of his membership in that group. There, the applicant was a 40-year-old Cuban who was paroled to the U.S. in 1980 via the Mariel boat-lift. When his parole terminated, he applied for asylum out of Texas, a state not commonly known for its legal or social acceptance of homosexuality. Importantly, the Court agreed that his freedom or life would be threatened due to such events as frequent detention for days by government officials while being subjected to verbal and physical abusive treatment. Based on these findings, the Court upheld the cancellation of deportation of Toboso-Alfonso.

Paredes v. U.S. Attorney General

Refugee camp for Rwandans located in what is n...

Refugee camp for Rwandans located in what is now eastern Democratic Republic of the Congo following the Rwandan Genocide. (Photo credit: Wikipedia)

In 2007, the Eleventh Circuit U.S. Court of Appeals, that governing over Florida, affirmed a Venezuelan’s removal despite his petition asylum based on sexual orientation. The Court held that substantial evidence supported the immigration judge’s determination that the alien, and HIV-infected native and citizen of Venezuela, would not be singled out for future persecution based on his sexual orientation or health status if he returned to Venezuela, as required for asylum. The 11th Circuit found that the record indicated that the Venezuelan government had taken affirmative steps toward protecting homosexual individuals and HIV-infected individuals, the Venezuelan Supreme Court ruled that health care for HIV-infected individuals had to be freely available from the government, and the government proposed a constitutional amendment to prohibit discrimination on the basis of sexual orientation, but it ultimately did not pass, and the government banned employers from requiring employees to undergo blood tests prior to employment. Paredes, the applicant, filed his petition seeking relief for his membership in a particular social group. According to the Court, Paredes had not experienced past harm or mistreatment in Venezuela, but feared such if he returned to Venezuela. The failure of Paredes’ application appears to have been his inability to allege actual experience of persecution, even though Paredes at least alleged that he had witnessed two raids on gay bars by the Venezuelan police, and that the Venezuelan police regularly stop, harass, extort, or sexually abuse gay people, and do not enforce the law in favor of homosexuals. Nevertheless, the Court found that Paredes “admits that he had suffered no past persecution in Venezuela.” Based on the Court’s review of country-wide reports, including a 2003 country report that did not mention human rights violations against homosexual individuals, the Court found that Paredes failed to establish eligibility for asylum or withholding of removal. The case set a high standard for proof.

UNHCR Note

Gay Parade 2007, Buenos Aires.

Gay Parade 2007, Buenos Aires. (Photo credit: Wikipedia)

The UNHCR (United Nations Commisioner for Refugees) 2008 Note was also issued to provide guidance on legal issues in respect of refugee claims related to sexual orientation and gender identity. The Note discussed that sexual orientation is a fundamental part of human identity, akin to race, religion, nationality, membership of a particular social group and political opinion, and that international and regional jurisprudence and legal doctrine affirm that discrimination on account of a person’s sexual orientation is prohibited. The note also discussed the deleterious effect of laws criminalizing homosexual conduct, persecution and its agents. The Note held that the term “political opinion” should be broadly interpreted to incorporate opinions on sexual orientation and gender identity, and that homosexuals may constitute a particular social group. In conclusion, the Note found that because international and national developments in sexual orientation case law clearly show that LGBT persons may be recognized as a “particular social group,” they are entitled to protection under the 1951 Convention (the UNHCR Treaty).

2009 Neufeld Memo and Matter of Lovo-Lara

Sexuality confusion

Sexuality confusion (Photo credit: Wikipedia)

The 2009 Neufeld Memo is a 6-page discussion to provide guidance on the Matter of Lovo-Lara (2005) in relation to adjudication of visa petitions in which a claimed spouse has undergone sex reassignment surgery. Under Lovo-Lara, USCIS may approve a petition if the petitioner establishes that the surgery resulted in a legal sex change, and that the marriage is recognized as a valid heterosexual marriage. Lovo-Lara was groundbreaking in that previous USCIS policy disallowed recognition of a change of sex for the purpose of spousal immigrant petitions, as discussed by Yates in his 2004 Memo. The 2009 Neufeld Memo stated that the Lovo-Lara principle is binding on the USCIS, no matter where the marriage took place. The Lovo-Lara decision literally rewrote the law, revising AFM Ch. 21.3(a)(2)(j) in its entirety.  The Neufeld Memo also pointed out the U.S. states that DO recognize transsexual marriages as valid heterosexual marriages, including: North Carolina, New Jersey, and Maryland. The Neufeld Memo also pointed out that Florida, along with Illinois, Kansas, Ohio, Tennessee, and Texas DO NOT recognize transsexual marriages as valid heterosexual marriage.

The USCIS Training Guide 2011-2012

Based on the above required reading, the USCIS Training Guide went on to provide legal analysis of 1) the Nexus and the Five Protected Grounds for refugees and asylees; 2) persecution and eligibility based on past persecution; 3) well founded fear; 4) interview considerations; and 5) evidence assessment. HINT: The Guidelines Summary, located on pages 46-50, are a necessary reading for anybody attempting to analyze an asylum or refugee application based on sexual orientation. The Guide’s conclusion provided poignant words of advice: “By definition these claims involve the most private of matters – sexual orientation, gender identity, and sometimes serious illness. Always remain respectful and nonjudgmental, don’t be afraid to acknowledge your discomfort for yourself and to the applicant. Familiarize yourself with the legal nuances involved in these types of cases and do your best to elicit all relevant details without re-traumatizing the applicant or being insensitive.”

Icon for Wikimedia project´s LGBT portal (Port...

Icon for Wikimedia project´s LGBT portal (Portal:LGBT). (Photo credit: Wikipedia)

The takeaway is that homosexuality as a particular social group providing for international protection is taking hold. The idea has taken root, and the seas are changing. It will be very interesting to see how the Courts interpret asylum petitions based on sexual orientation as we move forward with the 2008 UN Note, the 2009 Neufeld Memo, and the 2011 USCIS Guidelines.

Until next time. Stay tuned.


Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact Andrew John Bernhard, Esq. at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

Matter of Rebelo, (1968) – THE FOURTH BIG CASE – THE B2 VISA EXCEPTION GETS A 2-PRONG TEST – WORKING AND SEEKING ADMISSION AS OCCUPATIONAL CREWMAN


Barcos Rebelo

Barcos Rebelo (Photo credit: Grumbler %-|)

In this series, MIA goes over the important cases that define the present legal atmosphere of the crewmember’s visa, the C1/D. In MIA’s last articles, we discussed the important effect of a crewmember visa designation: the inability to apply for Adjustment of Status (“AOS”) or Cancellation of Removal (“COR”).  Again, the two-prong inquiry in determining whether an alien was admitted as a crewman: the Court MUST examine both (1) the alien’s visa, as well as (2) the circumstances surrounding his entry into the U.S., to ascertain whether they entered in pursuit of their occupation as a seaman. This plainly ambiguous test leaves lots of room for factual differentiation on a case-by-case basis. Thus, to help flesh out the circumstances that have led to a ruling of eligibility or ineligibility, we have examined 19 key cases from the annals of crewmember case law.

In this case, Matter of Rebelo, the Court decides that:

ARRIVAL AS A WORKAWAY DOES NOT PRECLUDE “AOS” IF HE IS NOT (1) SERVING ABOARD A VESSEL IN A CAPACITY REQUIRED FOR ITS NORMAL OCCUPATION, OR (2) HE IS NOT SEEKING (AND THEREAFTER GAINS) ADMISSION TO THE U.S. BECAUSE OF HIS OCCUPATION IN THAT ROLE.

The Court took its holding from Quintero-Correa (see previous MIA article) regarding the coincidental seaman, and made a stiff 2-prong test. An alien who is admitted with a nonimmigrant visitor’s visa (B-2 visa) cannot be statutorily precluded from receiving adjustment of status as a crewman, because he did not seek or gain admission to the U.S. because of his occupation as a crewman. Similarly, if, like in Quintero-Correa, an alien was not serving aboard a vessel in order to maintain the vessel’s normal operation (e.g. passengers, workaways, etc.), then the alien cannot be denied AOS.

REBELO’S BACKGROUND TO THE U.S.

A crewman operates the ship's throttle in the ...

A crewman operates the ship’s throttle in the main engine room aboard the USS NEW JERSEY (BB 62). Behind him is the engine oil inspection station. The NEW JERSEY, after recently completing renovation and modernization, is undergoing sea trials prior to reactivated in January 1983. (Photo credit: Wikipedia)

Rebelo, the alien that brought the case, was a 59-year old man, and a native of Portugal. Rebelo had spent 25 years as a crewman by occupation, often as an engineer.

Rebelo arrived in the U.S. in 1965, with a B2 visa (a nonimmigrant temporary visitor for pleasure). Rebelo had obtained a B2 visa from an American Consul in Japan. Rebelo arrived as an engineer on a vessel, and was listed as a member of the crew on the vessel’s manifest. Upon presentation of the B-2, the U.S. authorized Rebelo to stay for 17 months, but Rebelo never left the U.S. thereafter.

MATTER OF QUINTERO-CORREA EXPANDED

When Rebelo applied for AOS, the U.S. denied him based on his 25-year history as a crewman. However, at trial, the Court held that Rebelo was still eligible for AOS, under the new 2-prong test. (NOTE: remember Matter of Quintero-Correa, discussed by MIA in a previous article, where the Court held that a workaway who enters on a B-2 visa could not be denied AOS as a crewman, be cause he was coincidentally, not occupationally, a seaman).

CONVINCE THE CONSULAR OFFICER YOU’RE NOT A CREWMAN

The Court found that he was not statutorily precluded from receiving adjustment of status, primarily because he had convinced a consular official that he was eligible for a visitor’s visa, and because he was properly admitted as such.

A B1/B2 visa to the United States

A B1/B2 visa to the United States (Photo credit: Wikipedia)

The crew reaffirmed that an alien who happens to be serving as a crewman at the time of his entry is barred from AOS to permanent resident only if he has been inspected and admitted or paroled into the U.S. as such. Here, Rebelo was admitted as a B-2 nonimmigrant for pleasure, and not as a crewman, and thus was not ineligible for AOS based on his crewman status.

2-PRONG TEST OF THE DOUBLY COINCIDENTAL CREWMAN

The Court set up a 2-part test to determine whether an alien is a crewmember: (1) he must be serving aboard a vessel in a capacity required for its normal operation, and (2) he must be seeking (and gain) admission to this country because of his occupation in that role.

After consideration of these two factors, the Court held that the alien’s formal visa entry, decided by the consular officer, controlled, rather than the fact that he arrived as a listed crewman engineer, and that Rebelo was eligible for AOS.

This case was the last major ruling favorable to aliens. After 1968, the rules get stricter.

Next Case: Matter of Campton, (1970).

Until next time. Stay tuned.
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

MIA

Miami International Attorneys, P.L.

President Obama and Former Governor Romney Clash on Immigration Reform During Debate


During the presidential debate last night, former governor and Republican candidate Mitt Romney battled with President Barack Obama on Obama’s current immigration policy and any plans Mr. Romney may have for the future.

Immigration

Immigration (Photo credit: lcars)

President Obama was particularly harsh on Romney regarding Romney’s professed position on

Mitt Romney in 2007 in Washington, DC at the V...

Mitt Romney in 2007 in Washington, DC at the Values Voters conference (Photo credit: Wikipedia)

immigration. Romney had originally taken a very hardline against immigration, criticizing President Obama’s reprieves for immigrant families. During the debate last night, Romney attempted to soften his line. Yet, Romney still promised reform of current immigration laws, if Romney is elected. In fact, Romney promised swift action against immigration: “I’ll get it done. First year,” Romney said.

Romney also supported a theory of self-deportation, which involves immigration laws so harsh that aliens will voluntarily leave rather than face the punishment. Romney stated that “self-deportation says let people make their own choice. What I was saying is, we’re not going to round up 12 million people, undocumented illegals, and take them out of the nation. Instead, let people make their own choice.” Perhaps it was an unfortunate use of the word “round up,” but Romney stood his ground.

Official photographic portrait of US President...

Official photographic portrait of US President Barack Obama (born 4 August 1961; assumed office 20 January 2009) (Photo credit: Wikipedia)

President Obama, taking the opposite side of immigration reform, stated that he supports citizenship for undocumented immigrants. Romney admitted that he does not support a pathway to citizenship for undocumented immigrants.

President Obama, a supporter of the DREAM Act, which promotes a pathway to citizenship for children brought into the U.S. at a young age, pointed out that Romney would veto the DREAM Act.

Romney also supported an Arizona law that required employers to use electronic federal verification to verify all of their workers. Kris Kobach, Romney’s key immigration adviser, is actually one of the authors of Arizona’s recent tough immigration laws.

How each candidate will pan out with immigrant and former alien voters will be seen soon enough.
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

MIA

Miami International Attorneys, P.L.

Why Crewmember Status Counts: Ineligibility for Cancellation of Removal or Adjustment of Status.


Simply put, an alien who enters the United States as a crewman, either in form or in circumstance, is ineligible for adjustment of status and cancellation of removal. See INA Section 240A(c)(1), 8 U.S.C. Section 1229b(c)(1); INA Section 245(c), 8 U.S.C. Section 1255(c). Congress’s basic purpose behind these crewmen provisions was an attempt to deal with the problem of the alien who uses the seaman’s route to gain relatively easy access to the U.S. and to enter for the purpose of residing permanently. Matter of Loo, 15 I. & N. Dec. 601, 602 (BIA 1976).

The USS Columbus (1819) and a crewman in Edo B...

The USS Columbus (1819) and a crewman in Edo Bay in 1846. (Photo credit: Wikipedia)

For anybody hoping to cancel their removal or adjust their status to permanent residency and fighting against this rule, the defense options are limited. Just look at the limited language of the law itself, and you can see that few challenges lie in the wording. Are you an alien? Most likely. Did you enter the U.S.? If not, you wouldn’t be challenging a ruling to deport you or denying your adjustment of status (“AOS”).

But, did you enter as a crewman?

Bingo.

As to be expected, the question of whether an alien qualified as a crewman is the great sticking point. As the Supreme Court has stated, whether or not a person is a member of a crew turns on questions of law and fact and “does not have an absolutely unvarying legal significance.” South Chicago Coal and Dock Co. v. Bassett, 309 U.S. 251, 258 (1940); Matter of M/T “Rajendra Prasad”, 16 I. & N. Dec. 705, 707 (1979). What formalities and circumstances are encompassed in a “crewman” status is the subject of substantial legal debate and case law. This large body of case law and administrative decisions have formed a general consensus that the prohibition on AOS or COR (“Cancellation of Removal”) includes any alien who, on arrival in the U.S., was serving in any capacity on board a vessel or aircraft or was destined to join a vessel or aircraft in the U.S. to serve in any capacity thereon, as well as an alien admitted to the U.S. on a crewmember visa. Thus, an alien admitted to the U.S. with other than a crewmember visa, but entering for purposes of being a crewmember, is barred from AOS or COR. In order to be subject to this bar, the alien must be serving, or be destined to serve, aboard a vessel in a capacity required for the vessel’s normal operation, and must be seeking to enter, or have entered the U.S. because of his or her occupation in that role. However, an alien crewmember who presents a valid B-2 visa and is admitted to the U.S. as a bona fide temporary visitor, and is not admitted in order to pursue his or her calling as a crewmember, is not statutorily barred from applying for AOS or COR.

View of SS MONTORO showing six crewmen leaning...

View of SS MONTORO showing six crewmen leaning on the ship’s rail, 1920-1950 (Photo credit: Australian National Maritime Museum on The Commons)

The Test

If you, the reader, take anything from this article, it should be the following two-prong inquiry in determining whether an alien was admitted as a crewman: the Court MUST examine both (1) the alien’s visa, as well as (2) the circumstances surrounding his entry into the U.S., to ascertain whether they entered in pursuit of their occupation as a seaman. This plainly ambiguous test leaves lots of room for factual differentiation on a case-by-case basis. Thus, to help flesh out the circumstances that have led to a ruling of eligibility or ineligibility, we have described 19 key cases from the annals of crewmember case law (SEE NEXT ARTICLE). Before we get to the cases, we should cover some beginner’s ground.

A Crewman’s Definition

Cruise Ship - Celebrity Infinity

Cruise Ship – Celebrity Infinity (Photo credit: blmiers2)

The general rule is that the term crewman is defined as “a person serving in any capacity on board a vessel or aircraft” “who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft.” INA Section 101(a)(10), (15)(D)(i) 8 U.S.C. Section 1101(a)(10), (15)(D)(i). In determining whether an alien should be considered a crewman, the type of visa the alien possessed and the circumstances surrounding the alien’s admission into the United States are examined. In re G-D-M-, 25 I. & N. Dec. 82, 84-85 (BIA 2009). See e.g. Chica-Roman v. Attorney General of U.S., 462 Fed. Appx. 221 (3d Cir. 2012).

Notice the double-quote and double-cite in the general rule. The term crewman is defined twice separately in the Immigration and Nationality Act.  The first INA section describes a crewman as “a person serving in any capacity on board a vessel or aircraft.” 8 U.S.C. Section 1101(a)(10). The second INA section defines an “alien crewman” as an individual “serving in good faith as such in a capacity required for normal operation and service on board a vessel . . . who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft.” 8 U.S.C. Section 1101(a)(15)(D)(i).

Keep In Mind the D-1 Crewman Versus the C-1 Transit Alien Versus C-1/D

Also, remember that it is the D-1 classification that provides a crewmember status. A “D-1” classification is given to “an alien crewman . . . who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft.” 8 U.S.C. Section 1101(a)(15)(D)(i); see also 8 C.F.R. Section 214.1(a)(2). On the other hand, a “C-1” classification is given to “an alien in immediate and continuous transit through the United States.” 8 U.S.C. Section 1101(a)(15)(C); see also8 C.F.R. Section 214.1(a)(2).

Novara_barge

Novara_barge (Photo credit: Alphast)

Nowadays, an alien crewman traveling to meet a vessel in the U.S. is issued a “C-1/D” visa, which is a dual “C-1” and “D” visa. A “D” visa is given to a nonimmigrant alien serving aboard a vessel or aircraft “who intends to land temporariy in pursuit of his calling as a crewman and to depart from the U.S. with the vessel or aircraft on which he arrived or some other vessel or aircraft.” A “C-1” visa is given to a nonimmigrant alien in immediate and continuous transit through the U.S. If you get the D on your visa, it indicates that a consular officer gave you “alien crewman” status under the INA. See 22 C.F.R. Sections 41.12 and 41.41; see also Petitson v. U.S. Atty. Gen., (11th Cir. 2012).

The BIA “examines an alien’s visa and the circumstances surrounding his entry into the United States to determine if he entered as a crewman.” Matter of G-D-M-, 25 I. & N. Dec. 82, 85 (BIA 2009). “If it is apparent . . . that the alien was issued a visa as a crewman and entered the United States in pursuit of his occupation as a seaman, then he is to be regarded as an alien crewman.” Id. If you are determined to be a crewman or crewmember, then you will not be eligible to apply for the standard Cancellation of Removal, nor will you be eligible to apply for Adjustment of Status to become a permanent resident. The Courts consistently hold that by choosing to seek entry to the U.S. as a crewman, a person agrees to the limitations associated with that status, and he will not be later allowed to avoid the consequences of those restrictions in removal proceedings by claiming that he may not be a crewman after all.

Prior Crewman Are Not Crewmen Now, Right? – The B-2 Exception

However, an alien may not be a “crewman” even if his means of arrival in the U.S. was as a crewman or he had previously entered as a crewman, provided that his most recent admission was not as a crewman; in particular, if he was admitted as a B-2 visitor. Matter of Rebelo, 13 I. & N. Dec. 84 (BIA 1968) (holding that an alien admitted with a B-2 nonimmigrant visitor’s visa was not entering as a crewman, even though he was serving as a ship’s engineer); Matter of Quintero-Correa, 11 I. & N. Dec. 343 (BIA 1964) (finding that an alien admitted with a B-2 nonimmigrant visitor’s visa was not entering as a cewman arriving aboard a freighter, although he earned half his fare by serving meals to the crew and washing dishes).

Crew and Queensland Airlines DC3 plane, 'Wide Bay'

Crew and Queensland Airlines DC3 plane, ‘Wide Bay’ (Photo credit: State Library of Queensland, Australia)

Although the B-2 exception has succeeded in limited cases, it is still an option. Nevertheless, the Courts will exhaust a fact-intensive review of your immigration and occupational history in the search for circumstances that show your intent to enter as a crewman. Adding to the challenge, the alien must prove by a preponderance of the evidence that he did not intend to enter as a crewman.

Next article, the Crewman Cases. Here’s a preview:

1. Matter of Tzimas, 10 I. & N. Dec. 101 (BIA 1962).

2. Matter of Goncalves, 10 I. & N. Dec. 277 (BIA 1963).

3. Matter of Quintero-Correa, 11 I. & N. Dec. 343 (BIA 1964).

4. Matter of Rebelo, 13 I. & N. Dec. 84 (BIA 1968).

5. Matter of Campton, 13 I. & N. Dec. 535 (BIA 1970).

6. Matter of Loo, 15 I. & N. Dec. 601 (BIA 1976).

7. Matter of M/T “Rajendra Prasad”, 16 I. & N. Dec. 705 (BIA 1979).

8. Parzagonis v. I.N.S., 747 F. 2d 1389, 1390 (11th Cir. 1984).

9. In Re: Rehman Saidur, 2005 WL 649059 (2005).

10. Matter of G-D-M-, 25 I. & N. Dec. 82 (BIA 2009)

11. Rodriguez v. U.S. Atty. Gen, 355 Fed. Appx. 372 (11th Cir. 2009).

12. Sarup v. Attorney General of U.S., 423 Fed. Appx. 231 (3d Cir. 2011). [3/6/11]

13. In Re: Everton Dane Henry, 2011 WL 1373664 (2011).

14. Beri v. U.S. Atty. Gen., 438 Fed. Appx. 841 (11th Cir. 2011) [8/23/11]

15. Lewis v. U.S. Atty. Gen., 2012 WL 2946062 (2012)

16. Gonzalez v. Holder, 673 F. 3d 35 (1st Cir. 2012).

17. In Re: Andrius Urvakis, 2012 WL 1495515 (2012).

18. Petitson v. U.S. Atty. Gen., 2012 WL 2890568 (11th Cir. 2012).

19. Chica-Roman v. Attorney General of U.S., 462 Fed. Appx. 221 (3d Cir. 2012).

Until next time.
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

Miami International Attorneys, P.L.

Instability Continues in The Middle East Following Uprisings from Libya to Syria


Greater Middle East

Greater Middle East (Photo credit: Wikipedia)

Cairo’s streets, once safe, are now plagued by crime, reports Kimberly Adams from NPR’s morning edition. Rebels employ guerilla tactics of attack and retreat while striving to hold Aleppo, reports an Economist correspondent from Idleb. In a hesitant spot of light, Libya’s elections cautiously proceeded a year after the overthrow of Muammar Qaddafi. However, Reuters cautioned, “getting a grip on security in an often anarchic post-Gaddafi Libya will be the priority for the country’s new ruling assembly when it starts life on Wednesday, the deputy prime minister says.”

Need we mention the days of outrageous horror in hotspots such as Iraq? Remember the bloody Monday of July 23rd, where at least 107 people were killed in bomb and gun attacks, which came on the heels of a bloody Sunday in which 20 died in coordinated explosions. Here, there, everywhere in the Middle East, insiders and outsiders claim that the intensifying conflicts and violence point out the deficiencies in the local security forces.

And here we sit, worlds apart, eyeing the Middle East over the horizon, curling out gaze over the ports of Nassau and Abaco, skipping off of the reports of worsening security in the North of Nigeria, and bouncing right from the July images of riot police using water cannons to quell clashes with police officers marching to demand government benefits (Note: no pun intended in this a security problem).

A young girl gestures during an anti-Assad pro...

A young girl gestures during an anti-Assad protest in the town of Binnish, April 9, 2012 in Syria. The violence in northern Syria between government forces and rebels is putting plans for a UN-brokered Syria ceasefire in jeopardy. (John Cantlie/Getty Imag (Photo credit: FreedomHouse)

As though man-made violence were not cause enough for the destruction, the earth shook Iran’s northeastern region with two ferocious back-to-back earthquakes, allegedly killing over 300, destroying over 300 villages, and injuring some 3,000.

Let there be no reprieve from the seemingly stable countries in the Middle East area. Reports continue to trickle down of terror groups operating in Syria funded and trained by Saudi Arabia, Qatar, and Turkey.

The meaning of this madness? Keep your eyes peeled for more USCIS designations of TPS (Temporary Protected Status) from the Middle East region. New inductees include Sudan and South Sudan. Recall that the United Nations peacekeeping mission in South Sudan recently reported (from the safety of Nairobi, Kenya) that inter-communal violence in the Jonglei state has been perpetuated and is intensifying, due to the proliferation of weapons and hate speech.

South Sudan: Independence

South Sudan: Independence (Photo credit: babasteve)

Miami International Attorneys will continue to report on TPS designations and the situation in the Middle East. For those South Sudanese who are seeking TPS, be aware of the following from the USCIS:

If you are a current Sudan TPS beneficiary and are now filing under South Sudan because of your changed nationality, you do not need to pay the TPS application fee, but you must still pay the biometrics and EAD fees. There is also an automatic EAD (Employment Authorization Document) extension, if you received a Sudan EAD and want a new EAD under your South Sudan designation. The USCIS has automatically extended the validity of EADs issued under the last extension of TPS Sudan for an additional 6 months.

Your local immigration lawyer should be able to assist you in your TPS filings and provide information relating to TPS designations.

Best of luck!

Miami International Attorneys, P.L.

Miami International Attorneys, P.L.

A Brief View of Scalia’s Dissent on SB 1070 in Arizona v. U.S.


 A Brief View of Scalia’s Dissent on SB 1070 in Arizona v. U.S.

U.S. Supreme Court building.

U.S. Supreme Court building. (Photo credit: Wikipedia)

Today, listening to the recent National Public Radio discussion of Justice Scalia’s scathing dissent in Arizona v. U.S., one had to become curious at what stance Scalia took in the case. SCOTUSBlog writer Tom Goldstein described the dissent as apoplectic—overcome with anger. Justice Scalia’s language reminds us that the U.S. continues to broil in the Arizona heat of the immigration issue.

Run a Google search of the Supreme Court’s decision on Arizona’s immigration law, and you get an idea of the division that stretches up to the headlines: “Supreme Court mostly rejects Arizona immigration law”, “Supreme Court strikes down key parts of Arizona immigration law”, “Supreme Court upholds key part of Arizona immigration law”, “Supreme Court Splits on Arizona Immigration Law.” Taking into full consideration that media sells controversy, not agreement, and that the media exponentially drives the public into a division that exponentially drives the media, the list of contradictory headlines should still remind readers that we cannot seem to agree on this issue.

English: The towns of Nogales, Arizona, left, ...

English: The towns of Nogales, Arizona, left, and Nogales, Mexico, stand separated by a high concrete and steel fence. Many consider the area one of the most dangerous along the border, with numerous reports from U.S. Border Patrol agents of being spit on, having rocks thrown at them and gunfire. Despite the existence of a legal crossing point, enough illegal crossings occur to warrant 24-hour Border Patrol operations there. (Photo credit: Wikipedia)

The immigration controversy goes to the core of our nation—a nation that is run by hardly a single native American. As an American of allegedly German-Austrian-Irish-Italian descent, it is hard for me to not sympathize with the plight of anybody on the outside looking in, or on the inside looking over his or her shoulder. But we can only gain by reviewing Scalia’s dissent to understand his perspective, as it is likely shared by many in the U.S.

Arizona v. United States (2011):

Quoting the Court, an Arizona statute known as S.B. 1070 was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the State. The law makes it a misdemeanor to fail to comply with alien-registration requirements and to seek or engage in work without authorization. The law also authorizes police officers to arrest a person without a warrant when the officer has probable cause to believe that that person has committed any public offense that makes the person removable from the U.S. Even where making a stop, officers must make efforts to verify a person’s immigration status. Although the Court struck down most of these provisions, it held that the mandatory or permissive nature of the status checks is essentially okay.

Justice Scalia begins his opinion by stating that the U.S. is an indivisible “Union of sovereign States,” and that the ruling striking down Arizona’s immigration law deprives Arizona of its sovereign right to exclude from its territory those that “have no right to be there.”

English: Antonin Scalia, Associate Justice of ...

English: Antonin Scalia, Associate Justice of the Supreme Court of the United States (Photo credit: Wikipedia)

Scalia points out that fact which we often forget after nearly 250 years as a united country: the USA was once just a series of independent colonies or nations. These colonies were settled by people of extremely diverse backgrounds, religions, nationalities, and races. It may be easier to consider the U.S. similar to a union of nations, like the European Union. Just as Germany would not let England determine its rules on border crossing, so too, according to Scalia, Arizona should not let Washington D.C. determine its immigration policy. In fact, Scalia refers to these international scheme: “[i]t is a received maxim of International Law that, the Government of a State may prohibit the entrance of strangers into the country.” Of course, Scalia also quotes James Madison in saying that “the Constitution’s provisions were designed to enable the States to prevent ‘the intrusion of obnoxious aliens through other States.’”

Nevertheless, Scalia drives home his “most important point … that Arizona is entitled to have its own immigration policy.” Scalia does not find it compelling that his line of thought raises concerns about unnecessary harassment of some aliens, or that officials might determine that some should not be removed; no, “[i]t holds no fear for [Scalia].” What Scalia does fear is that “’federal policies’ of nonenforcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue but leaves unremedied in its disposition.”

English: The signature of Antonin Scalia.

English: The signature of Antonin Scalia. (Photo credit: Wikipedia)

With statements such as these, it’s no wonder that Tom Goldstein regarded Scalia’s opinion as overcome with anger. We wonder whether Justice Kennedy’s critics considered the majority as complaisant.
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