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  1. Another Same Sex Spouse Faces Deportation due to Defense of Marriage Act

    by , 01-13-2012 at 06:27 AM (Matthew Kolken on Deportation And Removal)
    The love story began in April 1990 at a birthday party, which the couple describes as "love at first sight."  One worked at the Pennsylvania State System of Higher Education, the other a university student.  This first meeting turned into a whirlwind romance spanning decades and two continents. The couple ultimate wed in California in 2008, and now have four adopted children.

    Unfortunately, there may not be a storybook ending for United States citizen Mark Himes and his French national husband Frederic Deloizy.  Despite the fact that the couple's marriage is valid in the State of California, Deloizy is ineligible to receive any immigration benefits from his United States citizen spouse, and as such he may be just one more faceless statistic in the Obama administration's 400,000 deportations per year mandate.
    Mark and Frederic's marriage faces the prospect of destruction, not because of the "broken immigration laws," but due to the Obama administration's continued enforcement of the Defense of Marriage Act (DOMA) in the immigration context. In fact, if Frederic were a woman there would be nothing to worry about, and the Green Card process would be fairly straight forward.  
    DOMA prohibits the Federal recognition of same-sex marriages, further providing that States are not required to recognize same sex marriages.  DOMA was signed into law in 1996 by a Democrat (President Bill Clinton) who is a proponent of gay rights.  Democrat Barack Obama continues to enforce DOMA against immigrants married to United States citizens.  This enforcement continues despite the fact that both the President and his Attorney General have stated that it is unconstitutional, and that it should not be enforced in Federal Court.  
    To paraphrase: With Democrats like these who needs Republicans.
    The painful irony is that even Dick Chaney openly opposes DOMA, making him more progressive than either Clinton and Obama on the issue.  Only now that the President is seeking reelection has Obama's view on gay marriage "evolved."  It seems pretty clear to me that Obama's evolution is in spoken word, and not in deed.
    More disappointments from the Lipservicer-in-Chief.
    Thankfully, has given this couple a voice so that the Obama Administration will be shamed into doing the right thing. It is an election year after all.
    Click here for the source for this story.
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  2. Credibility Determinations Are Not Credible, Part Two

    I previously wrote about how credibility determinations based on inconsistencies are not reliable.  Today, I want to discuss a couple more methods that I think don't work, and next time, I will write about one method that seemingly doesn't work, but might actually be a better test for credibility than the other methods.  First, two methods that don't work well:

    Demean girl.

    - Demeanor.  Fact finders often judge credibility based on the alien's demeanor during testimony.  Demeanor includes things like "body language," "looking at the judge," "responsiveness" to questions, and whether the alien's answers are "vague."  Such evaluations are quite subjective and-because the IJ actually sees the respondent in person while the BIA does not-are subject to great deference by reviewing courts.  The problem, of course, is that cultural differences and different personalities can be confused with deceptive demeanor.  This is particularly true in asylum cases, where the applicant often has faced persecution by the authorities, and is nervous to present herself before a tribunal.  These issues, and the inability for reviewing courts to overseas demeanor determinations, make demeanor a poor method for judging credibility.
    - Lack of Detail.  This is one that you see on referrals from the Asylum Office, but it's not so common in Immigration Court.  My initial reaction when I see this is to blame the Asylum Officer.  If the Officer wanted more detail, she should have asked more questions.  But I know this is not exactly what is meant by "lack of detail."

    Demeanor girl.

    An example will illustrate the point.  An asylum seeker (represented by my friend) was asked to describe the conditions of her detention.  She responded: "I was locked up and I was interrogated."  The Officer repeated the question and received a similar answer.  As my friend points out, even someone who has never been to prison knows that detained people are locked up and interrogated.  Thus, this testimony lacks detail because anyone-whether they had been detained or not-could have provided it.  In this situation, the Asylum Officer or her attorney should have asked additional, more specific questions, such as "What did you do every day in detention?" "How was the food?" "Describe your prison cell," etc.  If the applicant could not provide additional information, a finding of "lack of detail" would be appropriate.
    The reason I think "lack of detail" is a poor basis for credibility determinations is because Asylum Officers and immigration lawyers don't always ask enough questions to distinguish between an alien who is unable to provide additional detail versus an alien who does not provide additional details because he does not understand the type of information the Asylum Officer is looking for.
    Obviously for both "demeanor" and "lack of detail," where there are egregious problems with the alien's testimony, he can properly be found incredible.  However, in many run-of-the-mill situations, these methods are not a reliable measure of whether the alien is telling the truth.  In a future post, I will discuss some methods of judging credibility that might be more effective.
    Originally posted on the Asylumist:
  3. Bloggings: Updating the Statue of Liberty: Sheldon Adelson's check vs. Mitt Romney's hard line on immigration; by Roger Algase

    Every American schoolchild knows about the immortal 19th Century poem of Emma Lazarus, enshrined in the Statue of Liberty, welcoming immigrants to America from all over the world. Now, it may be time to put an additional document, from the 21st Century, in a place of honor next to Emma Lazarus' poem. This document is not as long as the Lazarus poem, but it may turn out to be no less significant for the future of American immigration. 
    I refer to the $5 million check written by the billionaire casino magnate, Sheldon Adelson, to a PAC supporting Newt Gingrich for president. This money is to be used for attack ads in South Carolina intended to demolish Mitt Romney, who many people now regard as the inevitable Republican presidential candidate this fall. 
    No one gives Newt the slightest chance of becoming president himself. He has been weighed down far too much with his own abundant supply of personal and political baggage to be a viable candidate. Nor, if he were elected, would he deserve to have his own immigration policies embedded in the Statue of Liberty.
    His much touted "humanity" for immigrants has turned out to be mostly a fraud, as only people who have been in this country without authorization for 25 years (and who go to church - no Muslims, please) would even be eligible to apply for legalization before "community boards", including ones in states such as Alabama and Arizona. End of discussion of Newt's "humanity".
    But Gingrich is now in a position to render a vital and long lasting service of a different kind to immigrant communities througout America. Using Adelson's money, Newt's PAC may be about to destroy the image of Romney, who, far from being a "moderate", is now taking the hardest line of all on immigration.
    Romney not only supports expanding the border fence, but he also supports the supposed "right" of the states (including, of course, South Carolina) to pass whatever draconian anti-immigrant laws they wish. He regards any letup in deportations as "amnesty", and a "magnet" for illegal immogration. In an excess of extreme pettiness and meanness, he has promised to veto the DREAM Act if it ever reaches his desk. 
    Using the classic technique of demagogues, Romney has shamelessly attacked his opponents for any lapse whatsoever from the most extreme line against unauthorized immigrants, especially with regard to granting them in-state tuition. He is leaving no stone unturned in his efforts to exploit anti-immigrant hate in order to win the nomination.
    It is true that Newt's PAC is not running ads against Mitt in South Carolina over the immigration issue, about which they have a great deal in common anyway. But, by showing Romney up as a "vulture capitalist" and a phony on a great variety of issues, Newt Gingrich is doing more than anyone else in America to leave Romney bloodied and broken going into the general election. Then President Obama may need to do nothing more than pick up the pieces. 
    That, in fact, is all that Obama is qualified to do. No one has shown more cowardice and lack of spine than America's Deporter in Chief in failing to take on the Republicans over immigration. What a disgrace that he needs someone like Newt Gingrich to do his work for him.
    If Romney is elected president, the poem in the Statue of Liberty may need to be updated as follows: "Give me your border fence/Your immigration jails/Your wretched anti-immigrant state laws/Your broken families, your E-verify/Your Secure Communities and deportation mills..." Emma Lazarus, move over.
  4. Romney Touts Endorsement of Architect of Arizona, Alabama Laws

    by , 01-11-2012 at 08:51 AM (Greg Siskind on Immigration Law and Policy)
    Wow, he's doubling down on the anti vote by announcing the endorsement of Kris Kobach, the Darth Vader of the xenophobes. It should be very interesting to see how he tries to court Hispanic votes after getting the endorsement of the man most Latinos rank as one of the most visible anti-immigrant leaders in the country. What is Romney thinking? The Obama commercials in Spanish are probably already being written quoting from this press release from the Romney campaign. 
  5. Unlawful Presence, Prior Deportations and So-Called ‚ÄúPermanent Bar‚ÄĚ

    The following article  is about the effects of prior deportations and unlawful presence on the possibility to immigrate to the U.S. Many Applicants come to our office to inquire about the consequences of prior deportations and periods of unlawful presence in the U.S.
    There are two common scenarios.
    The first scenario is usually similar to this: a foreign citizen had been previously deported from the U.S. and then entered or attempted to enter the U.S. illegally. Then the foreign citizen gets married to a U.S. citizen. The U.S. citizen comes to our office to inquiry about the immigration process for the spouse and to find out whether there are any issues associated with the alien spouse's prior immigration violations.
    Another common situation: a foreign citizen has been unlawfully present in the U.S. for more than 1 year, then departs the U.S. and enters or attempts to enter the U.S. illegally. Then that foreign citizen marries a U.S. citizen and tries to lawfully immigrate into the U.S.
    Well, both of the above scenarios generally lead to a so-called "permanent bar" meaning that the foreign citizen is barred from the U.S. forever!
    Unfortunately, the situations described above are very common. Families come to our office too late after a foreign citizen has already incurred a permanent bar. Had these foreign citizens sought immigration counsel's assistance prior to entering/attempting to enter the U.S. illegally, they could have had a chance to immigrate to the U.S. lawfully in the first place without the fear of being permanently barred from the U.S.
    The scenarios described above derive from Section 212(a)(9)(C)(i) of the Immigration and Nationality Act (INA) that provides that any alien who-
    (I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or
    (II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law,
    and who enters or attempts to reenter the United States without being admitted is inadmissible.
    The U.S. immigration law provides for a variety of waivers of immigration violations. However, for the situations described above, the waiver is available only after 10 years have passed since the date of the alien's last departure from the United States, with certain exceptions. The waiver is called "Permission to Reapply for Admission" and is submitted via a form I-212.
    Even aliens who are married to U.S. citizens or who have U.S. citizen children have to abide by this waiver period. As a result, families are forced to be separated for 10 years before they can apply for a waiver!
    Luckily, not everyone is subject to the permanent bar in the situations described above. Timing of the deportation and reentry is of great importance. There are certain exceptions for aliens who entered the U.S. prior to April 1, 1997, the effective date of IIRIRA.
    Effect of Previous Deportation
    The Administrative Appeals Office (AAO) concluded in its 12/29/2011 decision that the applicant was not subject to a permanent bar, where the applicant was removed and subsequently reentered the U.S. illegally before April 1, 1997 and later concurrently filed I-485, Application to Adjust Status, and I-212, Permission to Reapply for Admission into the U.S.
    The AAO confirmed in its recent decision that the permanent bar INA section 212(a)(9)(C)(i)(II) applies only to those aliens ordered removed before or after April 1, 1997, and who enter or attempt to reenter the U.S. unlawfully any time on or after April 1, 1997.
    Therefore, individuals who reentered the U.S. before April 1, 1997 after a previous deportation are not subject to the permanent bar. Though very limited, this exception provides relief for certain aliens who have been present in the U.S. for many years. These individuals do not have to worry about the permanent bar but may be subject to other bars, for which they have to file waiver applications in order to obtain lawful status.
    Effect of Unlawful Presence
    Any alien who has been present in the U.S. unlawfully for an aggregate period of more than 1 year and enters or attempts to reenter the U.S. illegally is generally permanently inadmissible.
    It is important to note that an individual's unlawful presence periods are counted in the aggregate, meaning that one year of unlawful presence can accrue during multiple stays in the U.S.
    Timing of unlawful presence is of the essence. Any period of unlawful presence accrued prior to April 1, 1997 does not count towards the period of time needed to trigger the permanent bar.
    Therefore, an individual who has accrued more than 1 year of unlawful presence before April 1, 1997, leaves the U.S. and then reenters/attempts to reenter the U.S. without being admitted, is not subject to permanent bar.
    In the situations described above, however, the permanent bar is not the only problem. One immigration violation can trigger several other bars including, but not limited to, 3- and 10-year bars for unlawful presence or 5-, 10 and 20-year deportation bars, etc.
    The issues of unlawful presence and previous immigration violations are complex and require careful analysis by an immigration counsel. If you or your family members wish to immigrate to the U.S. but are concerned about previous immigration violations, contact our office for assistance.
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