Wednesday, August 10, 2011

SF Couple Needs to Keep Fighting - Please!

S.F. gay married couple loses immigration battle

I'm reading between the lines (I'm an immigration attorney in private practice here in the United States) and my belief is that the couple had an I-130 Petition for Alien Relative and a I-485 Application for Adjustment of Status to Lawful Permanent Residency (green card application), possibly filed with it, denied on the grounds of the definition of marriage in the Defense of Marriage Act (DOMA) by the Department of Homeland Security (DHS), which is the agency that runs the Citizenship and Immigration Service, which decides these types of marriage-based petitions. They have some options, which I sincerely hope they take, including but not limited to:

  1. Allowing the alien spouse to be put into removal proceedings so that the Department of Justice (DOJ), which runs Immigration Court, will have to either enforce DOMA or not via the Immigration Judge's decision, which can then be appealed to the Board of Immigration Appeals (also part of DOJ), and on to the Ninth Circuit Court of Appeals as necessary.

    The letter that Eric Holder, Attorney General of the United States, sent to the Speaker of the House of Representatives earlier this year saying that the Department of Justice would no longer argue in favor of DOMA in jurisdictions where the legal standard of review is "heightened scrutiny" only comes into play, for sure, in my opinion, when the matter gets before a Circuit Court of Appeals (one that's applying that legal standard). However, since the DOJ is the agency in charge of running the Immigration Court, I'm very VERY curious to see what the A.G. thinks the ImmCourt's responsibilities are in terms of an Immigration Judge applying DOMA. If the head of the agency says the law is insupportable, how can an adjudicator under the agency (Immigration Judge) enforce it?

  2. Request Deferred Enforced Departure, which is a status granted by the DHS-Citizenship and Immigration Service, to aliens where the DHS says it has a low "priority" on removing the person from the country. In such cases, they may be allowed to obtain a work permit based on that status.
  3. I forget if you can appeal a denial of an I-130 directly, but obviously, if that's on the table, do that until you get out of the agency and before a federal court.

If I were in California, I'd be hunting this couple down to volunteer my services pro bono - I hope they have an attorney, because immigration petitions or court rarely goes well without one. It's that sticky.

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