Articles Posted in Sexual Orientation (GLBT)

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 Fong & Aquino 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.

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 Fong & Aquino 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.”

butterfly cocoon.jpgOn the occasion of Pride Month, the US Department of State has announced a change in policy regarding the way that sex and gender reassignment are noted on US passports. The immigration Fong & Aquino, long-time advocates for gay and lesbian immigrants, receive questions regularly about how gender is reflected on official documents.

Effective today, a US citizen applying for a US passport may present a letter from a physician that the applicant has had “appropriate clinical treatment for gender transition,” and the new passport will be issued reflecting that new gender. A short-term passport can also be issued be those who are still transitioning.

If you have any questions about obtaining a US passport, please contact us. –jcf

Beginning January 4, 2010, applicants for visas or greencards will no longer be considered inadmissible for being HIV positive. Early last month, the Health and Human Services Department (HHS) removed HIV (human immunodeficiency virus) from the definition of a “communicable disease of public health significance.”

This marks a major success by immigration advocates like Fong & Aquino and HIV/AIDS health advocates. J Craig Fong was cited in a recent Los Angeles Times article as one of the few immigration attorneys in the nation who work with HIV positive immigrants and who has been extremely successful in HIV waiver applications with the USCIS to overcome this ban.

Fong & Aquino applauds the Centers for Disease Control, the HHS, and USCIS in recognizing that the ban against nonimmigrant visa and permanent residency applications by HIV positive individuals was wrong. –ecf

On 14 October 2009, Congressman Luis Gutíerrez of Illinois released a set of principles which he hopes will be incorporated into any Comprehensive Immigration Reform (CIR) package. As advocates for immigrants, the attorneys at the Los Angeles-based immigration Fong & Aquino, we watch closely any progress on CIR.

Central to his approach are:

1. a rational and humane approach to resolving or legalizing the status of the undocumented population,

Because the debates about Health Care Reform are taking so much of the Congress’ energy, the Obama Administration believes that Comprehensive Immigration Reform (CIR) will not be considered by the Congress until the beginning of 2010. Fong & Aquino has many clients in Los Angeles, CA and throughout the nation who would benefit from the passage of CIR. In a recent article, President Obama restated his commitment to humane immigration law reform.

Two of the most anticipated provisions of CIR would be the Development, Relief, and Education for Alien Minors Act (DREAM Act) and the Uniting American Families Act (UAFA).

The DREAM Act would allow the normalization of the immigration status of certain undocument students who were brought prior to age 16 to the United States by their parents or guardians. These students have lived and been educated in the USA, and it would be fundamentally unfair to deny them immigration status, when they did not come to the USA through their own decision, and when the USA is often the only country these students have ever really known.

With the passing of Farrah Fawcett and Michael Jackson yesterday, the news about the “launch” of the immigration reform policy discussion passed under the radar for most people. As immigration attorneys in Los Angeles, Fong & Aquino advocates for a comprehensive overhaul of the immigration system in the USA.

The President, Vice President, and pivotal cabinet members met with members of Congress from both parties to discuss the timing for and shape of a Comprehensive Immigration Reform (CIR) bill expected to be introduced before the end of 2009.

Department of Homeland Security Secretary Janet Napolitano will be in charge of evaluating the proposed bill.

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On 3 June 2009, the US Senate Judiciary Committee held hearings on the Uniting American Families Act (UAFA).  UAFA would amend US immigration law to permit American citizens and Legal Permanent Residents to sponsor their same-sex partners as traditionally-married Americans can.  J Craig Fong, partner in the Los Angeles immigration law firm of Fong & Aquino, has been an advocate for gay men and lesbians for over 20 years, advising and representing same-sex couples and other non-traditional families.
In one form or another, UAFA has been introduced in Congress each year since 2000.  If passed, UAFA would make available to same-sex partners the same immigration status enjoyed by spouses of US citizens and residents.  
Advocates have urged the Congress to pass UAFA, as a stand-alone bill or as part of a larger, Comprehensive Immigration Reform (CIR) package.  The Obama administration has indicated its willingness to now address immigration issues, and many believe that now may be the time.  The American Immigration Lawyers Association (AILA) has also indicated its support for UAFA.  

Because Fong & Chun sees many gay men and lesbians at our immigration law offices in Los Angeles, we get inquiries about asylum based on sexual orientation.  To get asylum, the applicant must demonstrate to a hearing officer or Immigration Judge (IJ) that s/he would suffer persecution if s/he returned to the home country.  The US Tenth Circuit Court of Appeals just issued a decision in the case of Razkane vs. Holder, No. 08-9519 (10th Cir., filed Apr. 21, 2009).

In this case, a man from Morocco had overstayed in the USA because he was afraid to return to  his home country because, as a gay man, he would be subjected to torture and other persecution. At the initial hearing, the IJ accepted the idea that a gay man might be persecuted in Morocco.  However, the IJ denied the request for asylum, because in the IJ’s opinion Razkane’s appearance did not have anything that would mark him as being gay, “[he] does not dress in an effeminate manner or affect any effeminate mannerisms.”  In other words, the IJ didn’t think Razkane looked gay enough!
The appellate court criticized the IJ, noting that this “style” of judging was “unhinged” from the need for substantial evidence and would result in terrible results.  The judges noted that stereotyping of this kind would not be entertained in a case regarding religion or race, and it will not now be tolerated in a case of a gay man seeking asylum!  –jcf

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As the pioneering Los Angeles immigration law firm that has always welcomed inquiries and consultation from members of the gay, lesbian, bisexual, and transgender communities, Fong & Chun has been tracking the progress of Comprehensive Immigration Reform (CIR) in the US Congress.

The New York Times is reporting that the White House will begin pushing Comprehensive Immigration Reform soon.  The Uniting American Families Act (UAFA )must be included in the reform package.  

UAFA will permit US citizens to petition for and immigrate their same-sex partners, on an equal basis as traditional spouses.  

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