New York - August 19, 2011 - President Obama is on the move to provide protection to immigrants even if Congress does not act on Comprehensive Immigration Reform. Just the other day, Immigration and Customs Enforcement (ICE) Director John Morton issued two important memorandum on the use of prosecutorial discretion in immigration matters. Prosecutorial discretion applies to the agency’s authority to not enforce immigration laws against those individuals and groups that are in the process of deportation or removal proceedings. In other words a person not in deportation, at this time cannot make use of this memo.
The Morton Memo directs that ICE attorneys and employees to exercise prosecutorial discretion and desist from going after noncitizens with close family, educational, military, or other ties in the U.S. As an alternative, the memo orders them to apply their efforts for people who pose a threat to public safety or national security. What his means is that if you are illegal in the United States and have not committed a crime and have not yet been deported, you can take a deep breath because Immigration is not looking for you.
Even if someone calls the ICE hotline to tell them that a person is illegal in the United States, ICE will not go after them unless they are criminals or pose a threat to our safety.
What are the Factors for Prosecutorial Discretion
The memo lists the following 19 items for ICE to consider when applying Prosecutorial Discretion:
• the agency’s civil immigration enforcement priorities;
• the person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
• the circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
• the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
• whether the person, or the person’s immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
• the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
• the person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
• whether the person poses a national security or public safety concern;
• the person’s ties and contributions to the community, including family relationships;
• the person’s ties to the home country and conditions in the country;
• the person’s age, with particular consideration given to minors and the elderly;
• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
• whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
• whether the person or the person’s spouse is pregnant or nursing;
• whether the person or the person’s spouse suffers from severe mental or physical illness;
• whether the person’s nationality renders removal unlikely;
• Whether the person is likely to be granted legal status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and
• whether the person is currently cooperating or has cooperated with federal, state, or local law-enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.
The Morton Memo on Prosecutorial Discretion also identifies groups of persons who deserves “particular care” when making prosecutorial decisions. Specifically, these individuals embrace:
• veterans and members of the U.S. armed forces;
• long-time lawful permanent residents;
• minors and elderly individuals;
• individuals present in the United States since childhood;
• pregnant or nursing women;
• victims of domestic violence, trafficking, or other serious crimes;
• individuals who suffer from a serious mental or physical disability; and
• individuals with serious health conditions.
Prosecutorial Discretion is Not a Green Card
First, any form of prosecutorial discretion is fragile at best, and does not grant legal status or benefit. Secondly, decisions about prosecutorial discretion are usually made on a case-by-case . If granted, the person’s case will receive a “deferred Action” (placed in a low priority) and will probably receive work authorization.
Achieving the goal of the memos will require a method by which prosecutorial discretion is considered in every case brought to ICE’s attention, even before a Notice to Appear (charging document in deportation) is issued. ICE attorneys and employees will have to be trained to follow these memos, and held responsible when they fail to act properly. Finally, ICE must invest resources in training its officers and attorneys to accept the concept of prosecutorial discretion and the critical nature of exercising it in each and every appropriate case.
Over the last few years many immigrants have left the United States after residing here for many years. Some left for economic or familial reasons. These people unfortunately will have great problems in re-entering the United States. Current laws state that if a person remained illegal for a period greater than one year (1) in the U.S.; he or she cannot obtain their permanent legal status (Green Card) until they have remained outside the U.S. for a period of 10 years.
Be Advised: Do not leave the U.S. if you plan to return without consulting an attorney.
You can follow this links:
by Moses Apsan, Esq.
On June 23, 2011 the Board of Immigration Appeal (BIA) in the Matter of Le clarified the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. under the age 21, is eligible for adjustment of status even after turning age 21.
In this case, the child and his mother were both native and citizen of Vietnam. When the mother became engaged to a United States citizen, he filed a Petition for Alien Fiancé(e) with the U.S. Citizenship and Immigration Service (“USCIS”) on her behalf on December 8, 2003. The Fiancé petition was approved, and the respondent’s mother was issued a K-1 nonimmigrant fiancée visa. The child was 19 years old and was issued a K-2 nonimmigrant visa as the minor child who was accompanying, or following to join, his mother, a K-1 visa holder. On December 27, 2004, they were admitted to the United States on their K visas.
On December 30, 2004, a few days following their admission, the mother married her United States citizen fiancé and in about 2 months, both filed applications to adjust status with the USCIS. Although the respondent’s mother was granted adjustment, the child’s application was denied. Shortly there after the child was placed in removal (deportation) proceedings. At the removal hearing her lawyer sought to renew the adjustment application. The Immigration Judge denied the adjustment application and concluded that under section 245(d) of the Act, “the respondent had been eligible to adjust his status to that of a conditional permanent resident when his application was before the USCIS, because he was still under 21 years old. Nevertheless, the Immigration Judge determined that the respondent could no longer adjust because he had since turned 21 and could not qualify as a “child,” as that term is defined in section 101(b)(1) of the Act.” The decision was appealed
On appeal, the Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States. By holding so, it threw out the Department of Homeland Security’s position that a K-2 visa holder must under the age of 21 at the time the adjustment of status application is adjudicated.
The Board’s decision follows in line with the position advocated by the American Immigration Council and the American Immigration Lawyers Association in the amicus briefs submitted to the Board in approximately six other cases where the child turned 21 after being admitted to the United States.
Under this ruling, many other children in a similar position will be able to become lawful permanent residents, as was Congress’ original intent.
by Moses Apsan, Esq.
WASHINGTON – The Senate Judiciary Committee begins it’s hearings on a bill which offers a way for certain illegal aliens that entered the United States as minors to become Lawful Permanent residents and eventually American citizens.
The hearing follows on the footsteps of last week’s revelation by Pulitzer Prize journalist Jose Antonio Vargas, a former Washington Post reporter and senior contributing editor for The Huffington Post, that he is an illegal immigrant.
In last weeks Sunday's edition of the New York Times Magazine, online today, Vargas, told his story of a life as an undocumented immigrant In very quick time, Vargas has become somewhat of a poster child of the 11 million undocumented immigrants in the US who are desperate to resolve their immigration problem and want to see a Dream Act or some type of comprehensive immigration reform that would eventually make them U.S. citizens.
Vargas has been invited to the hearing but as of this writing it is not clear if he will attend.
Among those asked to attend are Homeland Secretary Janet Napolitano, Education Secretary Arne Duncan and Undersecretary of Defense Clifford Stanley.
President Barack Obama has been pushing for a reform of immigration laws so “they can address our economic and security needs while honoring our history as a nation of immigrants and a nation of laws.”
But, since there is such vehement opposition to most any immigration reform, supporters are trying to convince the president to use more a “piece meal” strategy by using the president's executive power.
It was Senators Richard Durbin, Harry Reid, and Robert Menendez that re-introduced the Development, Relief, and Education for Alien Minors (DREAM) Act. Last fall, the DREAM Act passed the House of Representatives, and garnered the support of a majority in the Senate, but was ultimately defeated when the Senate failed to invoke cloture and proceed to debate. The sponsors of the DREAM Act hope to build on last year’s momentum and continue to highlight the importance of fully utilizing the talent and potential of thousands of young people who are Americans in every way but their birth certificates.
Who would Qualify for the Dream Act?
The following is a list of specific requirements one would need in order to qualify for the current version of the DREAM Act:
• Have proof of having arrived in the United States before age 16.
• Have proof of residence in the United States for a least five consecutive years since their date of arrival,
• Compliance with Selective Service.
• Be between the ages of 12 and 35 at the time of bill enactment.
• Have graduated from an American high school or obtained a GED.
• Be of "good moral character"
How it works:
• "conditional" status would be granted during the first six years.
• the youth would be required to graduate from a two-year community college or complete at least two years towards a 4-year degree, or serve two years in the U.S. military.
• After the six year period, an youth who met at least one of these three conditions would be eligible to apply for legal permanent resident status.
• During this six year conditional period, these students would not be eligible for federal higher education grants such as Pell grants, but they would be able to apply for student loans and work study.
• If the youth did not meet the educational or military service requirement within the six year time period, their temporary residence would be revoked and they would be removable (deportable).
• They must not commit any crimes other than those considered non-drug related misdemeanors. Being convicted of a felony or drug-related infraction would automatically remove the six year temporary residence status and they would be subject to deportation.
• If the youth met all of these requirements at the completion of the 6-year conditional period, they would be granted permanent residency, and eventually will be eligible for U.S. citizenship.
Although Obama has been a fervent DREAM Act supporter,he has done little to move the act forward and in fact, has taken a hard line on immigration violations by having Homeland Security work methodically to locate and deport immigration violators and has simultaneously shored up the Mexican border.
by Moses Apsan, Esq.
May 28, 2011 - New York- Rep. Luis Gutierrez (D-Ill.), leads a group of Democrats urging President Obama to tone down his aggressive deportation strategy, especially when children are in school or families would be separated. Gutierrez acknowledges that congress has failed to correct the broken immigration laws, but also cast blame on the President and the rest of the executive branch for not using powers granted under the constitution.
"While we must work to pass comprehensive immigration reform to fix our broken system, we must also stop needlessly deporting the parents and the spouses of U.S. citizens — and others who are here, who are studying and working and raising families and contributing to our country … We are asking the president — who we know is on the side of the immigrants — to use his power now to stop these deportations," Rep. Jan Schakowsky (D-Ill.) a member of the group told reporters Wednesday outside the Capitol.
Gutierrez, recently launched a 20 cities national tour to demonstrate the plight of illegal immigrants to, announced Wednesday that he's including 10 additional cities to the tour. He explained that the reason or this massive tour is "to have their stories heard until they finally penetrate the White House and we finally penetrate the consciousness of the president."
They requested certain immediate actions; specifically:
Obama recently visited El Paso, Texas and delivered speech calling on Congress to pass comprehensive immigration reform, including the DREAM Act.
"There is a consensus around fixing what’s broken," he said. "Now we need Congress to catch up to a train that’s leaving the station."
In recent weeks, President Obama has met with lawmakers, business and religious leaders in seeking out a solution that's evaded democratic and republican presidents alike.
Just last month, ((Gutierrez threatened that he could hold back support for Obama in the upcoming election)) if the White House doesn't work more aggressively for comprehensive immigration reform.
In El Paso, the president stated "Regardless of how they came, the overwhelming majority of these folks are just trying to earn a living and provide for their families … but they’ve broken the rules, and have cut in front of the line. And the truth is, the presence of so many illegal immigrants makes a mockery of all those who are trying to immigrate legally."
"The laws are broken, but it doesn't mean that we continue to break up families… [T]hese are families, they are not criminals," said Rep. Anna Eshoo (D-Calif.).
by Moses Apsan, Esq.
No sooner did President Obama finish his speech in Texas on Tuesday, announcing his backing of a complete immigration overhaul, did Democrats Sen. Richard Durbin reintroduced the following day the Development, Relief, and Education for Alien Minors (DREAM) Act. Senate Majority Leader Harry Reid, New Jersey Senator Bob Menendez, and Majority Whip Richard Durbin and 30 others of their colleagues have signed on to support the bill, which failed in Congress last year.
The Dream Act would grant legal status to undocumented immigrants who entered the United States prior to their 16th birthday provided they attend college or serve in the military, and meet various other conditions.
It was Obama, speaking in El Paso on Tuesday, who called on Congress to pass the DREAM Act. He denounced the current situation which he terms "cruel" and said "makes no sense." As President Obama put it:
So we’re going to keep fighting for the DREAM Act. We’re going to keep up the fight for reform. And that’s where you come in. I’m going to do my part to lead a constructive and civil debate on these issues. And we’ve already had a series of meetings about this at the White House in recent weeks. We’ve got leaders here and around the country helping to move the debate forward. But this change ultimately has to be driven by you, the American people. You’ve got to help push for comprehensive reform, and you’ve got to identify what steps we can take right now, like the DREAM Act, like visa reform, areas where we can find common ground among Democrats and Republicans and begin to fix what’s broken.a comprehensive plan for modify the immigration laws and to strengthen border security.
"Our immigration laws prevent thousands of young people from fully contributing to our nation's future," said Sen. Dick Durbin, D-Ill., the bill's lead sponsor. "These young people ... are American in every sense except their technical legal status. ...These children are tomorrow's doctors, nurses, teachers, policemen, firefighters, soldiers and senators, and we should give them the opportunity to reach their full potential."
But Republicans for the most part, are against the Dream Act. House Judiciary Committee Chairman Lamar Smith, R-Texas, said he sympathizes with these children. [However,] "[t]he DREAM Act doesn't solve our illegally immigration problem, it exacerbates it. Amnesty will encourage millions more parents to bring their children to the U.S. illegally."
Congressman Luis Guitierrez a formidable fighter for immigrants rights, believes that the president should make immediate use of his executive powers to soften the blow of the current draconian immigration laws. He commented in an article for democracynow.org that :
We think the President should immediately take administrative actions. Look, the President of the United States has broad discretionary powers that are conferred upon him by the laws of this nation. We don’t need new laws. It’s nice, and I appreciate the President calling upon the nation to begin to work legislatively to pass the DREAM Act, to pass comprehensive immigration reform. But listen, the one million young men and women who could benefit from the DREAM Act should be given some shelter immediately. The President of the United States should simply respond, affirmatively, to 22 U.S. senators, including those that introduced the DREAM Act yesterday—Senator Durbin and Senator Reid—who asked him three weeks ago to do one thing: stop their deportation. He has the authority under the law to do that. He can’t legalize them. He can’t give them a sense of permanency. But he can give them relief, shelter, set them aside and say, "I’m not going to deport them, I’m not going to take prosecutorial action against them, until the Congress of the United States finally deals with the DREAM Act and votes on it one way or another." That’s the kind of champion, and that’s the kind of affirmative action we would hope from the President of the United States. At a time in which the Republicans are heaping on the immigrant community, where xenophobic tendencies here in the Congress are just at a high, we expect him to respond affirmatively in defending the immigrant community.
A study released last year by the Migration Policy Institute indicates that the DREAM Act could benefit up to 2.1 million undocumented youth, even though only about 825,000 would gain permanent legal status.
According to the Immigration Policy Center every year over 65,000 undocumented students graduate from high school and even though many are at the top of their classes, they cannot go on to college, join the military, or get jobs after the graduate.
The Federation for American Immigration Reform, FAIR, an anti-immigration group opposing the DREAM Act calls it, “a sweeping illegal alien amnesty bill.”
by Moses Apsan, Esq.
President Barack Obama heads to Texas next Tuesday to deliver a speech calling on congress for immigration reform, which includes the 11 million living illegally in the country.
"The speech will reflect the President's continued commitment to find a bipartisan way to create a bipartisan -- rather comprehensive immigration reform," White House spokesman Jay Carney said Friday. "The fact that we were not able to achieve that in the first two years only means that we need to refocus our efforts and try to find that compromise."
But at the recent “Cinco de Mayo” reception his words leave an impression that he has yet to begin work on immigration reform. "I want to begin work this year, and I want Democrats and Republicans to work with me -- because we’ve got to stay true to who we are, a nation of laws and a nation of immigrants. He went on to say “I want to work with Republicans and Democrats to protect our borders, to enforce our laws and also to address the status of millions of undocumented workers”
Republican leaders in the GOP-controlled House oppose anything Obama. Rep. Lamar Smith, R-San Antonio, chairman of the House Judiciary Committee said “The president wasn’t able to pass his version of immigration reform when he had large Democratic majorities in the House and Senate because of bipartisan opposition, so it’s unlikely he will succeed anytime soon,”
It's not that Obama hasn't tried and his predecessor, George W. Bush, also tried to pass immigration reform but was basically ignored by his own party. Recently Obama supported, the DREAM Act --- which would have resolved a difficult moral issue by opening our doors to children brought to the US by their parents before the age of 16 provided they attend two years of college or join the armed forces. It died in the Senate under the threat of a Republican filibuster.
Obama realized early on his presidency that securing the borders would be the only hope of a successful bi-partisan legislation. To this end Obama increased the Border Patrol to 20,700 agents, doubling the amount of agents in 2004 which has led to almost 800,000 deportations in the past two years. Obama officials proudly say that Illegal immigration has dropped due to increased enforcement and the economy.
((These aggressive governmental actions on immigration issues controlled by Obama, is upsetting many immigrants and supporters)). Last Sunday thousands of immigrants poured into the streets of Los Angeles to demand that President Barack Obama fulfill his campaign promise to legalize millions of undocumented immigrants. And Thousands more protesters in support of immigrant and worker rights marched in Milwaukee, Wisconsin. There will be many more.
THE STATES GET INVOLVED
Individual states are also upset with the current immigration posture of the Obama presidency. Last Wednesday, Gov. Pat Quinn of Illinois said he was withdrawing his state from the Secure Communities program, while in California, where the program has already begun, it's Legislature is reviewing a bill that would permit counties or police agencies to decide on whether to participate. Under the program, the fingerprints of every person arrested by the police would be compared against Department of Homeland Security databases for immigration violations. This would be in addition to routine checks against the F.B.I.’s criminal databases, opening a door for easy deportation of non-criminal illegal immigrants. So far, 26 out of 102 local jurisdictions in Illinois had begun participating.
The resistance to Secure Communities has antagonized Latino immigrant communities that want Mr. Obama to press for legislation offering legal status to illegal immigrants. These are the Hispanics that strongly supported Democrats in recent elections. Even the American Immigration Lawyers Association called for suspension of the program. Yet the increase in arrests and deportations has not persuaded Republicans that the administration is working strong on enforcement.
According to Department of Homeland Security 's Statistics nearly one-third of immigrants deported under this program in Illinois had no criminal convictions. A confusion for many, as being illegal in the United States is a civil violation. It is not a crime.
And here comes the election. Obama is stepping up his appearances on immigration reform. He is now looking like the "old" Obama and appears ready to fight for immigrant rights. But is this perception true? We all know that old maxim "it's not what he says it's what he does." Well, we will shortly know if Obama's comprehensive immigration reform are just words used for his re-election or a true manifesto.
by: Moses Apsan,Esq.
Fling a bankruptcy and surrendering your home or reducing the 2nd mortgage, short sales and foreclosure can all result in cancellation or forgiveness of debt for the borrower by the IRS. When there is debt cancellation , it can become taxable income to the borrower. In other words, if a $100,000 2nd mortgage is reduced by 90%, you may be left holding the bag on taxes for the amount forgiven. Here it would be $90,000. Not exactly what you want, especially after losing your home.
Apparently Congress and the President expect many taxpayers to lose their homes over the three year period the law will remain in force. On December 20, 2007, the Mortgage Forgiveness Debt Relief Act of 2007 became law.
The relief from debt stemming from foreclosure of a personal residence, but only to the extent the debt went into buying or improving the house, will not be taxed if a foreclosure occurs between January 1, 2007, and December 31, 2009. However, many still have a problem unless they file a petition in bankruptcy.
There is a limit on the cancellation of debt a homeowner can claim before it becomes taxable. The limits are $2,000,000 or $1,000,000 for a married taxpayer filing a separate return. Nonetheless, many consumers will still have a tax bill after the foreclosure of their real estate loans. The initial problem will be that only debt from buying or improving the property is protected by the new law. When home values were skyrocketing and sub-prime lenders were easy with lending guidelines, it was quite popular to take out a second mortgage or home equity line of credit to consolidate high interest credit card debt.
Most people that reafinced their home, did not have to pay off credit card bills as part of the contract. This portion of the home debt is not covered with and continue to trigger tax liability when the loan is foreclosed.
Second homes, vacation homes, investment property and businesses are not included in the forgiveness; it will only apply to debt secured against the principal residence of the taxpayer. If a taxpayer has two homes, only the home that is used the majority of the time will generally qualify.In a bankruptcy exceptions to cancellation of debt income taxation still are available.
by Moses Apsan, Esq.
Rep. Luis Gutierrez (D-Ill.) is on the move again with a 20-city tour aimed at at maintaining pressure on President Obama and Congress to resolve the problems associated with the mounting number of deportations and congress’ and more specifically Obama for his dismal failure in carrying out promises enact immigration reform.
Gutierrez said in Boston Obama "may" have trouble with the Hispanic vote in 2012 if he does not deliver on promises for an immigration overhaul
Congressman Gutierrez supports a “parole-in-place” program that would permit illegal aliens with children to live in the United States legally. At the media event in Rhode Island, Gutierrez explained his plans to collect statements from illegal aliens and send them to President Obama in an effort to “persuade” the President to “use the discretion the law already confers on him” to create and carry out the Congressman’s “parole-in-place” scheme.
According to the Rhode Island Providence Journal-Bulletin, Gutierrez said : "In just one year with Barack Obama as president, Gutierrez pointed out, 400,000 people were deported from the United States -- more people than any other president has deported, he asserted. And most of them, Gutierrez said, are not violent criminals, but law-abiding, hard-working people."
Gutierrez, the chairman of the Democratic Caucus Immigration Task Force for the 110th Congress, is also a chairman of the Immigration Task Force established by the United Association for Labor Education. Over the past few years Gutierrez has established himself as a zealous advocate for comprehensive immigration reform
In December 2009, Gutierrez, in introducing his new Comprehensive Immigration Reform bill said," "The time for waiting is over. This bill will be presented before Congress recesses for the holidays so that there is no excuse for inaction in the New Year. “ It’s failure to become law has not hindered Gutierrez’s unstoppable efforts.
A Boston Globe report on Gutierrez's Sunday town hall: “A Democratic congressman from President Obama's home state gathered immigrants in East Boston yesterday to draw attention to the plight of families that fear being divided by deportation and to warn that the president risks losing the support of the Latino community if he doesn't deliver on immigration reform.”
Gutierrez spoke in adamant tones, "We kind of made a covenant. There was a compact. You came to us and you said, 'Elect me president of the United States and I will be your champion for immigration reform,' '' said Representative Luis V. of Illinois. "Wherever I go, people say to me, 'Luis, when's he going to keep his promise?' ''
Gutierrez explained that most immigrants want to support Obama. However, after the on going increase in deportations e under Obama’s administration and finding out about of the Secure Communities program, Gutierrez said that he will challenge the president to provide more balance through comprehensive immigration reform.
Meanwhile, the White House, while portraying itself to be in favor of compassionate immigration laws, is insisting lawmakers to stay away from Gutierrez’s campaign to impede deportations involving U.S.-born children of illegal immigrants. Such a move jeopardizes Latino votes crucial to President Barack Obama’s re-election.
In a recent March 31 news conference several members of Congress scheduled to attend Gutierrez’s meeting said administration officials contacted them to voice unease about their involvement. These lawmakers logically opined that until U.S. immigration law is overhauled, ((Obama should use his executive power to shield families facing deportation or separation because at least one parent is an illegal immigrant)).
Members of the Congressional Hispanic Caucus noted the absences. “I heard some people got called,” said Arizona Representative Raul Grijalva, former president of the caucus. “I didn’t.”
These lawmakers are requesting that the White House “to make some administrative remedies to lessen the pain,” Grijalva said. But the White House,“ see that as politically not healthy for them.”
The White House argues that it does not have the legal authority to exempt certain illegal immigrant categories from the law.
“With respect to the notion that I can just suspend deportations through executive order, that’s just not the case,” Obama explained on March 28 at a town hall sponsored by the Univision television network. “There are laws on the books that Congress has passed.”
Hispanic voters held a pivotal role in pushing Obama to win in 2008, giving him 67 percent of their support, according to the Pew Research Center.
Now in 2112, it will again be the Hispanic vote that will either “make it or break it” for Obama. Let’s see if Obama is up to the fight.
by Moses Apsan, Esq.
A Manhattan immigration judge adjourned a deportation proceeding against Monica Alcota, the spouse of American citizen Cristina Ojeda in order to permit the U.S. immigration service to adjudicate a I-130, Petition for Alien Relative marking the first time a married, same-sex, couple has achieved such a triumph. Form I-130 is used by the USCIS for citizen or lawful permanent resident of the United States to establish the relationship to certain alien relatives who wish to immigrate to the United States. In this case the relative is a spouse.
The postponement of the her deportation proceedings was based on the emerging legal debate surrounding the constitutionality of the Defense of Marriage Act (DOMA). Currently married, heterosexual, couples are eligible under DOMA to apply for green card, but married same-sex couples are deprived of the same opportunity.
The couple’s attorneys, Noemi Masliah and Lavi Soloway contended that the couple’s marital status qualifies for permanent residency status. After the adjournment, Soloway discussed the judge’s decision to Gay City News and said:
“It is almost impossible to overstate the significance of what happened in there… An adjournment based on an I-130. It would never have happened a year ago. I don’t think I even would have filed it.”
Attorney Soloway says that if the couple’s DOMA challenge is ultimately unsuccessful he will argue, in the alternative, that asylum is required here due to a “provable fear of persecution” in her home country of Argentina.
Last year US District Court Judge Joseph L. Tauro in Boston knocked down the DOMA terms that bars federal recognition of legal same-sex marriages. He found that this section of DOMA violated the equal protection clause of the constitution and impermissible interfered with right of the state of Massachusetts to grant recognition under joint state-federal benefit programs.
The ruling was appealed by the Department of Justice to the 1st Circuit Court of Appeals, where the established precedent regarding claims of sexual orientation discrimination is that plaintiffs must show there is no rational basis for the difference in law they are challenging.
In Connecticut and New York , the courts in the 2nd Circuit when confronted with comparable lawsuits, where there is no existing precedent on anti-gay bias claims concluded that such claims should appropriately be held to a heightened level of scrutiny, and that under that type of review, DOMA’s constitutionality was not be justified.
The Department of Justice (DOJ), however, opined that there was a violation of the equal protection rights of same-sex couples. Attorney General Holder stated that would no longer defend DOMA in federal court.
It’s difficult to tell how long this case will last in court. If the USCIS denies the I-130 application, as it will probably do, there will be an appeal and the case will last for many years.
No matter what, it is the beginning of a new era for same sex marriage and the immigration service. Time will tell whether gay people will really be granted equiality to heterosexuals in America.
by Moses Apsan, Esq.
February 21, 2011 - Arkansas lawmakers are attempting to prohibit the state from providing non-emergency benefits to illegal immigrants. John Selig, director of the Department of Human Services, explained his opposition to the bill is a cut off funding for prenatal care for women who are in the country illegally. Referring to the unborn children Selig stated “Our concern is they are going to be American citizens and Arkansas citizens.”
According to a DHS spokeswoman other programs that could be affected by the legislation. These programs include child welfare and protection and services for developmentally disabled children.
Undocumented immigrants in need of medical assistance find themselves in a very difficult situation. Each year, millions of immigrants need medical assistance, and many have no medical insurance. Not having medical insurance in this country can result in big and permanent problems, especially for people who suffer from chronic illness.
Charity care, however, does exist. Last year hospitals in New York and Pennsylvania granted almost $2 billion in emergency and short-term treatment to uninsured patients, including a large number of immigrants. The hospitals generally pay off these debits, known as charity care, which are separate from expenses related to Medicaid and other insurance plans maintained by the government.
It is not known how many immigrants, documented or undocumented, depend on charity care, because the hospitals normally do not report the numbers. In New Jersey, where approximately 18 percent of the population was born overseas, charity care for immigrants is a major issue. Under federal law, any hospital that receives federal funds should provide emergency or short-term treatment to any person – regardless of whether or not they are documented.
However, when it comes to permanent and long-term treatment, the problem is greater. To qualify for most insurance plans, like Medicaid, an individual must be an American citizen, refugee or legal resident. According to national studies conducted recently by a health economist from the University of Pennsylvania, 44 percent of uninsured patients could be undocumented immigrants. A rather high number.
The difficult situation of illegal immigrants varies depending on the state in which they live. For emergency care, some states do more than others to help hospitals lower their costs treating the uninsured. New Jersey, for example, reimbursed its hospitals about one third of the $965 million in charity care bills last year.
But there are states, like Pennsylvania, that have no reimbursement programs for private hospitals, whose charity care bills run as high as $975 million a year. The uninsured can be sent away if the hospital believes they do not need emergency care.
The situation as a whole needs some kind of reform. It seems almost obvious that no palliative solution will resolve this epidemic problem until our country deals with the issue of illegal immigration in an affirmative way, accepting that immigrants are here to stay.