What is “extreme hardship”? Part 2

A couple of days ago, I wrote the first of two posts about “extreme hardship” in immigration law.  Today, in the second post, I write about the question of exactly what “extreme hardship” is, and how we can show it.

In many immigration cases, we must show extreme hardship to the spouse or parent of the person applying for the immigration benefit.  In some cases, we may show extreme hardship to the child of the applicant.  The applicant’s qualifying relatives – spouses, parents, and (in some cases) children – must be either U.S. citizens or lawful permanent residents.

As we stated in the first post, we need to show harships of both separation and relocation.

“Extreme hardship” is open to interpretation.  U.S. government officials may consider many different types of hardships.  Many of the most common hardships involve financial concerns, medical conditions, educational goals, psychological or emotional issues, family ties, and conditions in the location where the applicant would be living if the waiver is not granted.  In order to explain the hardship to the qualifying relatives, we must imagine that the applicant for the waiver is living in his or her home country.

Financial concerns:  An assessment of the loss of income to the household as a result of the applicant’s residence outside the United States, and the ripple effects that this loss can have on the well-being of the qualifying relatives.

Medical conditions:  The effects on the qualifying relatives of the potential lack of access to medical care in the country of relocation, and the potential loss of access to medical care in the United States due to loss of income or loss of insurance coverage.

Educational goals: The effects of the applicant’s absence on the education of qualifying relatives, including the loss of educational opportunities in the country of relocation, or the loss of opportunities in the United States due to financial or time constraints.

Psychological or emotional issues: The stress and anxiety that result from separation of qualifying relatives from the applicant, and the stresses and pressures that would accompany the qualifying relative’s relocation to another country.

Family ties: The qualifying relative’s connections to relatives in the United States, vs. connections to relatives in the country of relocation.

Country conditions:  Aspects of life in the country of relocation, including housing conditions, sanitation, educational opportunities, safety, social or political unrest, violence, environmental risks.

An application for a waiver based on a showing of extreme hardship requires significant careful preparation, planning, and documentation.  I have extensive experience in preparing these applications, and a strong record of success.

What is “extreme hardship”? Part 1

In many immigration cases, in order to help a client to obtain permanent resident, or “green card” status, we need to establish something called “extreme hardship” to a qualifying relative, such as the applicant’s spouse or parent who is a U.S. citizen or permanent resident.

For example, if you entered the United States without permission, without a visa, and without presenting yourself to U.S. immigration officials when you entered, then you might not be eligible to obtain your green card while you are in the United States.  You would need to go to a U.S. Consulate in your country of origin and apply for an immigrant visa.  If you are approved, then you receive the immigrant visa and enter the United States as a permanent resident.

The problem, however, is that if you are living in the United States without permission for 1 year or more, and then you leave the United States, you will be subject to the “10-year bar,” which means that you will not be permitted to enter the United States until you have spent 10 years outside, unless you obtain a waiver.  If you are granted the waiver, then you are permitted to enter the United States without the need to spend 10 years outside.

In order to obtain the waiver, we must convince the U.S. immigration officials that the denial of the waiver will result in “extreme hardship” to your spouse or parent who is a U.S. citizen or a permanent resident.  In order to obtain the waiver, we must imagine that we don’t have the waiver, and that you, the applicant, must spend 10 years outside the United States, living in your home country.

Then, we must imagine two different scenarios:

(1) Your spouse or parent who is a U.S. citizen or permanent resident remains in the United States and is separated from you for 10 years.

(2) Your spouse or parent who is a U.S. citizen or permanent resident lives with you, outside the United States, in your home country for 10 years.

We must show that BOTH of these scenarios will result in “extreme hardship” to your spouse or parent.  If we convince U.S. immigration officials that BOTH of these scenarios will result in extreme hardship, then you will be granted the waiver, and you will not be required to spend 10 years outside the United States.

In Part 2, we will explore the question of exactly what is “extreme hardship” and how we can show it.

Esquivel-Quintana v. Lynch, Part 2

On October 14, 2015, I argued a case at the U.S. Court of Appeals for the Sixth Circuit.  The case is titled Esquivel-Quintana v. Lynch.  You may click here to listen to an audio recording of the argument, which runs for 37 minutes.

I recently posted an introduction to this case, which you can read by clicking here.

I also recently posted Part 1 of a report on the argument, which you can read here.

In Part 2 here, I am discussing why the decision of the Board of Immigration Appeals (BIA) in our case is not entitled to deference.

In general, decisions of agencies such as the BIA are entitled to deference from federal appeals courts, if the term being interpreted is “ambiguous.”  The deference is referred to as Chevron deference, from a Supreme Court case called Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

We argued that the BIA is not entitled to Chevron deference for the following reasons:

First, we argued that the definition of “sexual abuse of a minor,” and in fact all of the terms regarding “aggravated felonies” at 8 USC 1101(a)(43), are used both by the BIA and by federal courts.  For example, the term “sexual abuse of a minor” is used by the BIA in cases such as ours, but it is also used by federal courts in cases involving sentencing of persons for illegal re-entry to the United States.  In the illegal re-entry cases, the federal courts do not owe the BIA any deference at all, because the BIA is not involved in any way in the criminal sentencing of a person for having illegally re-entered the United States.  The U.S. Supreme Court, in a case called Leocal v. Ashcroft, 543 U.S. 1 (2004), has stated that a statute with both criminal and noncriminal applications must be interpreted “consistently, whether we encounter its application in a criminal or noncriminal context.”

The problem with granting deference to the BIA’s decision is that the BIA’s decision would then bind federal judges in criminal applications of aggravated felony terms such as “sexual abuse of a minor” to apply the BIA’s definition, when in fact the BIA is due no deference in criminal sentencing cases.

Second, we argued that the BIA, in fact, has never provided a definition of “sexual abuse of a minor,” and because it has not provided a definition, the BIA’s decision is not due any deference.

Third, we argued that the term “sexual abuse of a minor” is not ambiguous.  The term is defined by a federal statute at 18 USC 2243.

When we receive a decision from the U.S. Court of Appeals for the Sixth Circuit, we will provide an analysis of the decision.

 

Esquivel-Quintana v. Lynch, Part 1

On October 14, 2015, I argued a case at the U.S. Court of Appeals for the Sixth Circuit.  The case is titled Esquivel-Quintana v. Lynch.  You may click here to listen to an audio recording of the argument, which runs for 37 minutes.

I recently posted an introduction to this case, which you can read by clicking here.

My client was convicted under California Penal Code 261.5(c), which states that it is unlawful for a person to have consensual sex with a person under age 18, if there is an age difference of at least 3 years and 1 day.  This conduct – consensual sex with a person under age 18, with an age difference of 3 years and 1 day – is perfectly legal in 43 states and the District of Columbia.

The Board of Immigration Appeals (BIA) concluded that a conviction under 261.5(c) is “sexual abuse of a minor” under 8 USC 1101(a)(43)(A) of the Immigration and Nationality Act, which is an “aggravated felony.”  My client’s permanent resident (green card) status was removed and he was deported from the United States.  You may read the BIA’s decision here:  Matter of Esquivel-Quintana,  26 I&N Dec. 469 (BIA 2015).

At the Sixth Circuit, I made two main arguments:  (1) The BIA’s decision does not comply with the requirements of the Supreme Court’s decision in Taylor v. United States, 495 U.S. 575 (1990), and (2) the BIA’s decision is not entitled to deference.

I will address (2) in a later posting.  For now, I will address (1).  In Taylor v. United States, the Supreme Court stated that courts and administrative bodies such as the BIA must provide a generic, contemporary definition of terms such as “sexual abuse of a minor.”  The Supreme Court also stated that the definition must mean what it means in the criminal codes of most States.  We argue that the BIA failed to provide a definition of “sexual abuse of a minor.”  We argue that a conviction under California Penal Code 261.5(c) is not “sexual abuse of a minor” because a conviction under that term can involve conduct that is perfectly legal in 43 states and the District of Columbia, and Taylor v. United States requires a definition for each term that fits with the criminal codes of most states.

You may hear the argument (37 minutes) by clicking this link.

 

3 Different Ways to Permanent Residence Based on Marriage

Many of my clients are persons who are either engaged to be married, or are already married.  Usually, one of the persons is a U.S. citizen or lawful permanent resident of the United States, and the other person is a citizen of another country and would like to obtain lawful permanent resident status in the United States.

For many persons, there are generally 3 different ways to move forward in the process of obtaining permanent resident status.

Fiance/Fiancee Visa:  For persons who are not yet married, one option is an application for a fiance/fiancee visa.  Please note that only U.S. citizens may file a fiance/fiancee visa petition.  The fiance will attend a visa interview at the U.S. Consulate in the home country or in a country where the fiance has permission to reside.  Upon approval, the fiance travels to the United States, and then must marry the U.S. citizen petitioner within 90 days of entering the United States.  If they do not marry, then the fiance must depart the United States.  As soon as they marry, then the fiance may apply for permanent resident (green card) status.

Immigrant Visa:  Another option is for the persons to legally marry, either in the United States or in any country in which the marriage may be legally performed.  After the legal marriage, the U.S. citizen or lawful permanent resident spouse files a petition for his/her spouse.  The spouse will attend a visa nterview at the U.S. Consulate in the home country or in a country where the fiance has permission to reside.  Upon approval, the spouse travels to the United States and enters with the immigrant visa.  The date that the spouse enters the United States is the date that the person becomes a lawful permanent resident (green card status).

Adjustment of Status:  A third option, for certain persons who are present in the United States, is for a married couple to apply for adjustment of status in the United States.  “Adjustment of status” is a term that means that the applicant is applying to become a lawful permanent resident of the United States while the person is in the United States.  This procedure, if successful, means that the applicant does not need to attend an interview at a U.S. Consulate outside the United States.

Each of these three options has certain advantages and disadvantages.  Moreover, each of these options is only available to certain persons who meet the requirements and for whom the option is beneficial to them.

I have considerable experience with each of these 3 pathways to lawful permanent resident status.  I would be glad to communicate with you about these options.

Case at the U.S. Court of Appeals for the Sixth Circuit

On October 14, 2015, I will be in Cincinnati, Ohio to present an argument in a case before the U.S. Court of Appeals for the Sixth Circuit.  The case involves issues related to a criminal conviction, and whether the conviction is an “aggravated felony” under the Immigration and Nationality Act.  My client in this case was a Permanent Resident of the United States since he was a young teenager.  While living in California, he and his girlfriend had sex.  My client ended up being convicted of having had sex with his girlfriend when she was younger than 18 years old, at which time he was more than 3 years older than she was.  My client and his girlfriend engaged in sex that was purely consensual.  There was no force, and no threat of force, involved.  My client was convicted under a statute in California that requires simply that the younger person be younger than age 18, that the other person be more than 3 years older, and that they had sex.  This is a statute that is sometimes referred to as “statutory rape,” although there was no “rape” involved at all.

In California, the age of consent for purposes of “statutory rape” is 18 years old.  Only about 11 states set the age of consent at age 18.  California joins Florida, Virginia, and 8 other states at setting the age of consent at 18.  Some of these states additionally require that, in order to be convicted, the older person is at least a certain age, and/or that the age difference be at least a certain number of years.  For example, Florida requires that the older person be at least age 24.  If not, the person would not be convicted of the offense.

As for the other 40 states and the District of Columbia, the age of consent for the younger person is either 16 or 17.

As a result, my client’s conduct would not even be a crime in at least 43 states and the District of Columbia.  Yet a U.S. immigration judge, and the Board of Immigration Appeals, ruled that his conviction is an aggravated felony for purposes of immigration law.  My client has been removed from the United States.

At the U.S. Court of Apeals for the Sixth Circuit, I am arguing that my client’s conduct is not an aggravated felony.

What are the chances for immigration reform?

Now that the Senate has passed a comprehensive immigration reform bill, the House has the opportunity to address the issue.  What will the House do?

 It appears that, in the short term, there is little political incentive for House Republicans to pass comprehensive immigration reform.  Of the 435 voting members in the House of Representatives, Republicans hold 234 seats, while Democrats hold 201.  As Janet Hook reports in the Wall Street Journal, of the 234 Republican members of the House, only 38 Republican members represent congressional districts that have Latino populations of 20 percent or higher.  And only 28 Republican members face even a small risk of a serious challenge by Democratic candidates in the 2014 House elections.  As a result, it seems that, for now, House Republicans would have little to gain politically by voting for an immigration reform package.  Moreover, many House Republicans would stand to face criticism from their congressional districts and possible election challenges from more conservative candidates, if they were to vote for a comprehensive immigration package.

 Long-term demographics, however, may play a role in the voting decisions of some House Republicans.  It appears that some states, including Texas and Arizona, that currently tend to vote for Republicans in local, state, and national elections, will likely be shifting over time towards electing Democratic candidates.  If, and when, such shifts will occur is anybody’s guess.  But some House Republicans might take these factors into account and consider the increasing electoral clout of Latinos and other immigrant groups.  Although currently most House Republicans face few serious electoral challenges from Democrats, they likely will face such challenges in the next 3 to 5 electoral cycles.

 For now, it is impossible to predict whether or not the House of Representatives will pass comprehensive immigration legislation.  It is also impossible to predict whether, if the House passes legislation, the Senate and President Obama will agree to sign such legislation.

 

USCIS to review visa petitions by same-sex spouses

DHS Secretary Janet Napolitano has directed USCIS to “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

In light of the U.S. Supreme Court’s decision to strike down the Defense of Marriage Act (DOMA) as unconstitutional, Napolitano ordered USCIS to implement the ruling “swiftly and smoothly.”

If you are a U.S. Citizen or Lawful Permanent Resident, and you were lawfully married to a person of the same sex in a jurisdiction that legally recognizes same-sex marriage, then you may file and I-130 Petition to begin the green-card process for your same-sex spouse.  USCIS will review your petition and will make a decision using the same procedures and rules that are used to review petitions filed for opposite-sex spouses.

If you and your same-sex spouse were lawfully married in a place that legally recognizes same-sex marriage, but you now live in a  state that does not recognize same-sex marriage, USCIS will still review your petition.  With very few exceptions, USCIS will look the law of the place where you married, and not to the law of the place where you are currently living, to determine whether your marriage is valid for purposes of immigration law.

Please note that, as with all marriage-based petitions, USCIS will review each petition to determine not only whether the marriage is legally valid, but also to determine the good-faith nature of the marriage.  USCIS looks to the circumstances of the marriage relationship, including, but not limited to, issues such as whether the couple live together, share financial burdens and benefits, and have a history of being in communication with one another over time.

If you are considering filing a marriage-based petition, it is a good idea to consult with an immigration attorney in order to have the best chance of success and to avoid problems with the petition.

Supreme Court Ruling Will Allow Same-Sex Married Couples to File for Immigration Benefits

Today the U.S. Supreme Court decided, in a case called United States v. Windsor, that the federal Defense of Marriage Act (DOMA) is unconstitutional and is therefore invalid.

This means that same-sex couples who are legally married in one of the states or jurisdictions that recognize same-sex marriage will have their marriages recognized by the federal government.

Although we have not yet received an announcement from U.S. Citizenship and Immigration Services (USCIS) about the Supreme Court ruling, it appears likely that same-sex couples who are legally married in the United States will be able to apply for immigration benefits, such as permanent resident (green card) status, based on the marriage.

We hope to receive confirmation soon from USCIS regarding the ability of legally married same-sex couples to apply for immigration benefits.

DHS Secretary Napolitano agrees to implement immigration law changes for same-sex married couples

Janet Napolitano, Secretary of the Department of Homeland Security, applauded the Supreme Court’s decision in United States v. Windsor, holding that the Defense of Marriage Act (DOMA) is unconstitutional.  Secretary Napolitano pledged to “implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”