February 2011 Archives

February 24, 2011

Green Cards for Same-Sex Couples -- Can we pour the champagne now?

giraffes.jpgIt's been a busy time since yesterday, when the Obama Administration announced it would no longer defend in court the section of the Defense of Marriage Act (DOMA) that would deny Federal benefits to same-sex couples who are legally married. The phones here at the Law Offices of J Craig Fong in Los Angeles have been ringing off the hook. In my many years as an advocate for gay and lesbian immigrants, I do not think I've received as many calls in one day, from Palm Springs to Providence, from West Hollywood to Washington, all asking the $64,000 question: "Can we get married and file our Spouse Petition now?"

First, to give you fair warning, I am going to punt the answer to that question down field. I think that -- at this moment in the legal process -- it would be prudent to think of SAFETY, to look at the facts of each couple before advising whether to file the paperwork. Why? Because there are simply too many variables right now, and we have no assurance from the immigration authorities that they won't run out, arrest, and quickly deport an undocumented alien the moment they know where s/he is.

Next, the Obama administration has said that they will no longer defend DOMA in court. This is NOT the same as saying that they are freely granting equal rights to all same-sex married couples for tax, social security, or immigration purposes. I anticipate that -- as well-meaning as the administration may be -- the powers-that-be at US Citizenship and Immigration Services will fight tooth and nail until specifically ordered by the White House to recognize same-sex marriages.

Further, remember that US immigration law grants green cards for married couples, not those in civil unions, registered partnerships, pacte civile de solidarité (PACS), or some other form of union. The change in the treatment of DOMA does not change the basic language of the Immigration and Nationality Act -- an actual legal marriage will be required in order to claim a green card for the spouse of a US citizen.

Finally, although we expect a degree of consistency from Federal government rulings, it is not clear whether the American in a couple legally married in, say, Canada, now living in Arizona, would be eligible to apply for the Canadian spouse. Why? Because Arizona does not recognize same-sex marriages, and although the marriage is legal in Canada, I cannot anticipate what the US government would do about this. The analysis might be different if the couple were living in Massachusetts, where same-sex marriages are legal and recognized. In my view, these two scenaria should be treated the same; however, the law can be as slippery as an eel.

For the moment, brothers and sisters, I urge caution. Keep your partner/spouse safe and out of the hands of immigration officers. --jcf

February 23, 2011

Down with DOMA! -- But don't file that spouse petition just yet!

Consequences.jpegWednesday's announcement by the White House that the Obama Administration has said it will not defend section 3 of the Defense of Marriage Act in court is something of a welcome surprise. This should mean that -- at least in states where same-sex marriage is legal -- same-sex couples can claim federal benefits on an equal footing with opposite-sex married couples. Such benefits would likely include marriage petitions for foreign spouses. The attorneys at the Law Offices of J Craig Fong have sought and created legal immigration solutions for same-sex couples for years, here in West Hollywood and Los Angeles, throughout the United States, and even overseas. I have been an attorney for almost thirty years and have been an advocate for gay and lesbian immigrants for most of that time. I have counseled over a thousand same-sex couples in my time, and this is the best news so far in the fight to permit US citizens to petition their same-sex partners.

However, it is not clear how this will spin out. I wish I could tell couples to go out, get married where it's legal to do so, and file the Family Petitions -- but I don't think it's prudent just yet. Why not?

First, the Department of Homeland Security is no joke. They are serious about removing people from the USA wherever undocumented people can be found. If you are trying to protect your loved one, you don't volunteer him or her to be a guinea pig! By filing a petition, you are revealing the exact address of your spouse. US Immigration and Customs Enforcement (ICE) is famous for the "knock in the middle of the night."

Second, it is not clear what US Citizenship and Immigration Services will do when they receive such cases. I suspect they will hold ALL such cases in abeyance until they get further direction from USCIS' head office. This could be a long time.

Third, it is unclear what will happen to couples who are married in, say, Massachusetts, but who now live in Texas or Nevada. What about couples who were married while marriage was legal in California, although new marriages are not being celebrated in California at this time?

Because of the uncertainties about this development, our suggestion is that people sit tight for a month or so, to see what other agencies of the US government will do in light of today's news. --jcf

February 17, 2011

Dangerous Arizona Hospital Law Withdrawn

caduceus1.jpgA bill was proposed in Arizona that would force hospitals to check the immigration status of patients. Like many advocates for immigrants, family immigration lawyers at the Law Offices of J Craig Fong see many situations here in California where such a bill would discourage people who genuinely need medical help from seeking that assistance. It appears that this proposed law -- a bad immigration idea, and a bad public health idea -- was removed from consideration by the Arizona Senate today.

For very good reasons, doctors and other health care providers would not want to be forced into the role of immigration officers. Health care professionals must establish a relationship of trust with their patients, and if the patient is afraid s/he might be turned in, the patient might not seek needed medical care. Whether we like immigrants or not, it is not a good idea from a public health point-of-view to allow sick or injured people to walk around untreated.

Serious contagious conditions like tuberculosis, H1N1 influenza, whooping cough, measles, and many others should be treated -- no matter who contracts them. It is in America's best public interest to keep such diseases under control. --jcf

February 15, 2011

Employment Authorization and Advance Parole Cards

Clients who file their permanent residency applications through Law Offices of J Craig Fong are always advised to use employment authorization and advance parole (often referred to as "travel permit") documents with caution. As of February 11, 2011, USCIS has begun issuing employment authorization and advance parole documents in ONE SINGLE CARD, and as a result, the attorneys at Law Offices of J Craig Fong are concerned that applicants for permanent residency do not utilize the card without a careful analysis of whether using the card might jeopardize their current status or prevent them from re-entering the US after traveling abroad!Screen shot 2011-02-15 at 12.59.51 PM.png

For many applicants who are applying for greencards through employment, using an employment authorization card with a company other than the sponsoring employer can be a violation of the applicant's current non-immigrant visa status. In some cases, this can result in a denial of the entire adjustment of status application!

It is very common for some applicants to be granted the advance parole document by USCIS, although leaving the country, even with the advance parole in hand, could bar them from re-entering. This scenario is typical for those who face the 3 or 10 year bar because of unlawful presence. Please contact the attorneys at Law Offices of J Craig Fong if you or someone you know is applying for permanent residency. ---ecf

February 8, 2011

Ninth Circuit Declines to Punish Immigrants for Government Delay

Individuals who seek the assistance of the immigration attorneys at the Los Angeles Law Offices of J Craig Fong often marry their spouses after they are placed into removal proceedings. The question then became: how much patience will the Immigration Judge have while the government determines if it was a "bona fide marriage," or if it one entered solely to save the respondent from deportation?

The Ninth Circuit U.S. Court of Appeals recently determined that an immigration judge cannot deny a request for a continuance simply because the government takes too long to adjudicate cases. In Malilia v. Holder, the Ninth Circuit considered the case of an individual who married his fiancee while he was in removal proceedings. Mr. Malilia's lawyer requested that the judge wait until U.S. Citizenship & Immigration Services made a decision on the petition filed by Mr. Malilia's wife. The judge denied the request for a continuance, finding first, that there was a presumption that Mr. Malilia had married his wife in order to obtain immigration benefits and second, that USCIS would take an "unpredictable period of time" to adjudicate the marriage petition. Because Mr. Malilia was not then eligible for relief, the judge ordered his removal from the United States and Mr. Malilia appealed. During the course of Mr. Malilia's appeal, USCIS determined that the marriage was bona fide and approved the petition.

Ultimately, the Court sided with Mr. Malilia. The Court agreed with the Immigration Judge that a presumption exists. However, the Court noted that the presumption can be overcome by evidence presented by the couple. In other words, the couple must have an opportunity to persuade the government that their marriage is genuine and not for the purpose of obtaining immigration benefits. This process takes time -- months, sometimes years.

While this process is pending, an Immigration Judge should hold the court proceedings and wait for a determination from USCIS. The Court acknowledged the lengthy period of time that it takes for USCIS to make these determinations, but found that for an Immigration Judge to deny a continuance on that basis would punish the individual for the government's delay. Immigration Judges should consider a number of factors when determining whether to grant a continuance in a court case. However, the Court noted that "delay that is not attributable to the respondent augurs in favor of a continuance." The Court remanded Mr. Malilia's case to the Immigration Judge so that he could pursue adjustment of status based upon the approved marriage petition.

Although this decision had a favorable outcome for the respondent, every individual's case is different and involves different issues. If you are in removal proceedings, you should speak with an experienced immigration attorney to consult about all of your options. ---RA

February 7, 2011

Romben Aquino: Immigration Court and Federal Proceedings

Rom.pngLike many other areas of the law, immigration and nationality law is vast and complex. It has come to the point where no one attorney can truly know ALL of immigration law. For this reason, the lawyers of The Law Offices of J Craig Fong in Los Angeles are very happy to welcome Romben Aquino as of counsel to our firm. Romben will handle the deportation (removal), asylum, appellate, and other specialized cases in our office.

My law partner, Eileen Chun-Fruto, and I have long wanted someone to handle the litigation cases in the office, most especially because the current administration's immigration policies have resulted in record numbers of deportations (removals) from the United States. Finding such a person was not easy. Eileen and I have very strong ideas about the way that an attorney should practice immigration law. We are thrilled to have Romben Aquino as part of our team.

Romben is the son of immigrants. A graduate of UCLA and Northeastern University School of Law, he is keenly aware of how important an attorney's role is in counseling immigrants and their families. He has worked with a well-known immigration law firm in New York City and a firm in the San Fernando Valley. The litigation and appeal process is challenging and requires a strong, keen mind and a feeling heart. Romben has both.

Romben will continue to handle cases for Cancellation and Withholding of Removal, asylum, claims under the Convention Against Torture, other defenses against deportation, and all kinds of immigration-related appeals. He can be contacted at the Law Offices of J Craig Fong at +1.323.769.8187. --jcf

February 3, 2011

Prohibited Articles at the US Embassy or Consulate-General

Hand Stop.jpgThe immigration lawyers at the Law Offices of J Craig Fong prepare hundreds of visa applications annually. We handle visa applicants from the UK, France, Spain, Switzerland, China, Japan, Canada, México, El Salvador, Argentina, Australia, Nigeria, Ghana, South Afrika, and dozens of other countries.

Under some circumstances, our clients, whether they are here in Los Angeles or elsewhere, must leave the USA to obtain their visas from the US Embassy or Consulate-General outside the USA.

Because of heightened security concerns at US posts abroad, many everyday articles MAY NOT be brought into a US Embassy or Consulate. The obvious ones are: fire arms, ammunition, sharp weapons. But other prohibited items include:

Electronic Devices
photographic cameras
video cameras
mobile telephones
two-way handhelp radios
portable radios
portable DVD players or "Game Boys"
laptop computers
magnetic diskettes
memory sticks or thumb-drive USB memories
batteries
calculators
any electronic cables

Metallic Objects
pocket knives
metallic scissors
metallic ball point pens
belts with metallic buckles
pencil sharpeners

Personal Articles
cigarettes, cigars
lighters
matches
lanyard or cord for ID pouch

Cosmetic Articles
eyebrow clippers
eyelash curlers
metallic nail files
any aerosol products
mirrors
glass containers (e.g., perfumes, mascara, etc.)
razors

Some of these items seem silly, but because of incidents that have happened at some US posts, you should not bring any of these things to a consular appointment. If you do, you will be forced to leave the item behind -- and the US posts DO NOT have any facilities to check personal belongings -- which could cause you to be late for or miss your appointment! --jcf

February 1, 2011

Citizenship Numbers: 2009 and 2010

flag+liberty.jpegThe USA naturalizes about 680,000 new citizens per year, at ceremonies across the USA and around the world. For many immigration law clients of the Law Offices of J Craig Fong, US citizenship is their goal. For many, US citizenship is the culmination of a life-long dream.

In 2009, just under 75% of all newly-naturalized persons resided in ten states (in descending order): California, New York, Florida, Texas, New Jersey, Illinois, Virginia, Massachusetts, Washington, and Maryland. The leading metropolitan areas were:
* New York, Northern New Jersey, Long Island: 15%
* Los Angeles, Long Beach, Santa Ana: 11%
* Miami, Fort Lauderdale, Pompano Beach: 7.3%

The top countries of origin for the newly-naturalized citizens were (in order):
* México
* India
* Philippines
* China
* Vietnam

For 2010, the USA naturalized 675,967 new citizens. --jcf