Transcript Advanced Family Issues

Presented By:
Raed Gonzalez of Gonzalez Olivieri LLC.,
&
John Wheat Gibson Sr., of John Wheat Gibson P.C.
Defense of Marriage Act
• Defense of Marriage Act (DOMA) was enacted by
congress and signed into law by President Bill Clinton on
September 21, 1996.
• Section 3: DOMA; “In Determining the meaning of any Act
of Congress, or of any ruling, regulation, or interpretation
of the various administrative 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 to only a person of the
opposite sex who is husband or wife.”
United States v. Winsdor
570 U.S. ____ (2013)
Thea Spyer married Edie Windsor after spending nearly 40
years together. Upon the death of Ms. Spyer, she left her
estate to her wife, Edie Windsor. Because of DOMA, Edie was
hit with a $363,000 tax bill by the IRS due to her inheriting her
wife’s estate.
The Federal District Court and the Second Circuit Court of
Appeals ruled in Favor of Ms. Winsdor. Attorney General
Holder even issued a statement that the Department of
Justice would no longer enforce Section 3 of DOMA because
it was Unconstitutional.
The Supreme Court upon Petition for Cert, took up the case
and issued an opinion.
Justice Kennedy
“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….The
Federal Statute [Section 3] is in
valid, for no legitimate purpose
overcomes the purpose and
effect to disparage and to injure
those whom the State, by its
marriage laws, sought to protect
in personhood and dignity..”
Marriage and Immigration Law
Same Sex Couples may now seek:
Adjustment of Status inside the United States
Consular Processing
Cancellation of Removal with a qualifying relative
Fiance Petition
VAWA self-petition
LitigationPost-DOMA
State Actions
There are now 37 States in the Union that have
legal Same-Sex Marriage.
13 States still ban Same-Sex marriage either by
Constitutional Amendment and State Law.
States that currently have bans (Arkansas,
Georgia, Kentucky, Louisiana, Michigan,
Mississippi, Missouri, North Dakota, Ohio, South
Dakota, Tennessee, Texas and Nebraska)
Supreme Court takes up case on
Same-Sex Marriage after Winsdor
Next week, the Supreme Court will hear
Obergefell v. Hodges, NO. 14-556. They will
determine whether the U.S. Constitution allows /
recognizes Same-Sex Marriages. If not, then
whether the full faith and credit clause requires
that the states recognized legally married same
sex couples.
Recent
Developments
In the Matter of Arabally and
Yerrabelly; the grant of Advanced
Parole and entry into the United
States would not trigger the
departure bars, thus allowing
individuals to adjust their status
inside the United States, rather
than consular processing.
(DACA/TPS Recipients, etc.)
What has changed since
Arabally and Yerrabelly?
If the Executive Action by the Obama
Administration in November of 2014 in order to
allow certain undocumented immigrants who
can pass a criminal background check and pay
all of their tax liability to temporarily statin in the
U.S. without fear of deportation, may benefit
from the grant of Advanced Parole under
Arabally and Yerrabelly. However, the Executive
Action of extended DACA and DAPA has been
put on hold.
Other Changes in Adjustment
Eligibility and Waivers
In 2008 the Fifth Circuit decided Martinez v. Mukasey,
519 F.3d 552. There the court held that LPRs who
acquire that status after living in the United States
and who later are convicted of an aggravated felony
are eligible for consideration for a 212(h) wavier.
The 10th Circuit recently agreed with the court in
Martinez, and the majority of other circuits and
concluded, “only persons who obtained LPR status
before or when they entered the United States are
barred from seeking a 212(h) waiver. Medina-Rosales
v. Holder, 778 F.3d 1140.
Practice Pointers
For those who are in a jurisdiction that still apply
the aggravated felony bar in seeking 212(h)
relief, bring to the attention of the court that a
majority of circuits are limiting the bar to those
who obtained their residency through the
consulate. The courts are reaching this result by
a strict reading of the statute.
Overview of the CSPA
CSPA is intended to preserve the rights of children who “age
out” from eligibility for family and diversity based legal
resident and refugee status on account of government delays
in processing applications.
CSPA applies to
Derivative beneficiaries of asylum and refugee applications;
Children of U.S. citizens and children of legal permanent
residents’
Children who are derivative beneficiaries of diversity, preference,
and immediate relative visa petitions.
FREEZE!
•
The CSPA freezes the age of a
U.S. citizen’s child on the date
the I-130 is filed.
•
If a LPR F-2A petitioner
naturalizes, the beneficiary's
category
automatically
converts to the immediate
relative or IR-1 category. The
beneficiary’s CSPA age then
becomes his or her biological
age on the date of the
parent’s naturalization.
Special Immigrant
Juvenile Status in Texas
Special Problems in Special Immigrant
Juvenile Status in Texas.
Special immigrant juveniles are alien children in the
United States who face harm in their home countries
from which their parents cannot or will not protect
them.
SIJ cases are placed on the fast track to obtain
lawful permanent residency.
First step for such a child is to obtain a judgment of a
family court placing the child under the protection of
the court.
SIJ ISSUES CONTINUED
In Texas, the court would appoint an adult to be a managing
conservator.
Complications arise when the applicants in the family court are older
than 17 and when their attorney is unaware of ultra vires
requirements that the Administrative Appeals Unit has invented.
Some courts in Texas have denied court protection to children older
than 17 in their belief that they lack jurisdiction to appoint a
managing conservator.
However the SIJ Statute defines children as those who are under 21.
*The family court has jurisdiction of children older than 17 for purposes of
child support
*The family court can order the parents of the child to pay child support so
long as the child is working toward a high school diploma
*The guardian of the child therefore must petition for child support, and keep
the child in school
*The conservator may request a child support order even after the child turns
18
*“The best interest of the child shall always be the primary consideration of
the court in determining the issues of conservatorship and possession of
and access to the child.” Texas Family Code §153.002
*The family court order appointing the
managing conservator must explicitly state
1)Repatriating the child is not in the child’s best
interest and 2)It is not “viable” to reunite the
child with the parent or parents on account of
abuse, neglect, abandonment, or a similar
basis in state law.
*The Administrative Appeal Unit has imposed ultra vires
requirements on the application for special immigrant
juvenile status:
1)The child must not have filed the petition for
immigration status in
order to obtain immigration
status.
2)The child must seek SIJ status on account of
persecution by one or both parents
*The statute permits SIJ status even if the child cannon be
reunited with only one of the parents, and the child can be
reunited with the other inside the United States
*In sum, you should succeed in your
client’s SIJ application if you :
1)Convince the family court it has
jurisdiction,
2)Obtain an order that provides continuing
jurisdiction of the child, and
3)draft the family court order to show the
child had to flee persecution by one or both
parents on account of a qualifying reason
*
Thank you!!!