Integrity Legal

Posts Tagged ‘American Immigration law’

1st October 2010

Those who follow this blog frequently may take note of the fact that the administration carefully follows the issues associated with LGBT Immigration rights in the United States of America. In a recent posting by Melanie Nathan on the website LezGetReal.com it was noted that LGBT immigration legislation may be introduced in the US Congress quite soon:

Sen. Robert Menendez of New Jersey is expected to introduce comprehensive immigration legislation before the Senate adjourns this week for the midterm recess, according to Politico, and a source tells The Advocate that the legislation will be LGBT-inclusive.

In the past, there have been other attempts by Federal legislators to rectify the current legal restrictions placed on LGBT bi-national couples when it comes to the issue of obtaining US Immigration benefits. To continue to quote directly from LezGetReal.com:

There are an estimated 36,000 (minimum the number since the determination in the year 2000 – also not taking account of social media and current increase in internet meeting) Gays and Lesbians who are either American citizens or residents (all referred to as Americans for the purpose of this article,) who are in love and relationship with a foreigner. Gay and lesbians are denied equality under the Federal Immigration laws of this Country, to sponsor same-sex partners or  State recognized spouses for immigration (greencards) to the USA.

LGBT couples (and the appellation LGBT includes Bi-sexual and Transgender couples and individuals as well as Lesbian or Gay couples and individuals) are currently barred from receiving the same family based immigration benefits as different-sex couples. This restriction is imposed pursuant to the Defense of Marriage Act (DOMA). DOMA prevents same sex couples (even those lawfully married under state law) from receiving recognition of their marriage in the eyes of the Federal government (and the benefits which may arise therefrom, including immigration benefits such as the K3 visa, CR1 visa, or IR1 visa or in cases where a couple intends to enter into a marriage in the USA: a K1 visa). There are those who argue that application of DOMA violates the doctrine of States’ Rights. At the same time, others point to the violation of the civil rights of the American Citizen (or Lawful Permanent Resident) petitioners whose Constitutional rights may be being violated through continued enforcement of DOMA. That said, the issue remains a highly charged political matter, to quote further from the aforementioned website:

So here we are – a Congress that may well go into lame duck, a Congress that failed to repeal DADT, that showed no compassion for the children of the immigrant DREAM ACT – and a UAFA barely in the conscience of leadership, unknown to mainstream America and also barely in the minds of our lesbian and gay sisters and brothers. The question is are we going to be in the Menendez Bill as a pawn, a promise or yet another wedge that will render Immigration Reform impossible in this political climate.

Remember it IS the American who lacks the Equality – and is being discriminated against.  ALL Americans in committed relationships, except gays and lesbians,  have the right to remain in the USA with the person whom they love.

It is not the immigrant per se, who has the right, as immigration is a privilege afforded a foreigner; it is the American who has the right and it is indeed a Civil Right and a Human Rights issue.

The UAFA noted above is an acronym for the Uniting American Families Act, a bill that has, in different forms, been floating around the US Congress for some time. One of the major proponents of this legislation is Representative Jerrold Nadler who has repeatedly supported and introduced legislation which would give equal immigration rights to LGBT couples. It is interesting that the above cited piece brings up the issue of the American Citizen’s rights with regard to US Immigration matters. Although foreign nationals do not necessarily have the same rights under the US Constitution as Citizens there is no doubt that Americans are protected by the provisions of the Constitution. It is this authors opinion that this situation may very well be ultimately decided by the US Courts rather than the US legislature as there are currently two cases pending in two different circuits which could result in the full or partial repeal of DOMA. With regard to immigration, DOMA compels the US Federal government to restrict US family immigration benefits to different-sex couples. Notwithstanding that jurisdictions such as Massachusetts allow same sex marriage. Therefore, the Federal government may be in violation of the “Full Faith and Credit” Clause of the US Constitution by failing to provide equal immigration benefits to same sex couples married in a jurisdiction in the US where such unions are lawful.

Whether the issue of LGBT immigration rights will ultimately be resolved in the US Courts or the US Congress remains to be seen, but one thing is for sure: the issue has many implications from both a legal and political perspective.

For related information please see: Same Sex Visa.

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19th September 2010

This author has frequently discussed the myriad problems that Immigrants can face when dealing with an unlicensed American immigration “agent” or “specialist“. American law and Federal Regulations are clear regarding the issue of who is allowed to provide legal services in matters arising before the United States Citizenship and Immigration Service (USCIS) specifically; or any of the other agencies which are overseen by the Department of Homeland Security (DHS). Only licensed attorneys from the United States of America are able to provide consultations about US Immigration matters for a fee. Furthermore, only an attorney licensed by the Highest Court of least one US State, Commonwealth, or outlying territory is allowed charge fees to represent clients before DHS, including USCIS.

Unfortunately, there are some unauthorized organizations throughout the world claiming to be able to provide advice and assistance in American Immigration matters. The internet has proven to be a great tool for those wishing to research matters pertaining to United States Immigration. Meanwhile, it has also provided a platform for some operations which claim legal expertise without appropriate training or licensure. Such individuals and entities ought to be avoided at all costs since information transmitted to such individuals and entities may not be protected by the usual legal protections accorded to communications conveyed between an American attorney and their client. Furthermore, one who is not legally trained or not licensed to provide legal services in a given jurisdiction or about a particular subject cannot provide effective counsel nor lawful confidentiality to those seeking their assistance. This can be especially important to those conveying sensitive information about a case pending before an immigration tribunal, agency, US Embassy, or US Consulate abroad. Those engaged in the unauthorized practice of law in the aforementioned manner are thereby placing their own interests, as well as those of their unsuspecting “clients’”, in jeopardy.

When comparing the costs of legal service it is important to understand the pivotal role of licensure when making a decision to retain counsel. No licensed legal professional is likely to have a problem with prospective clients shopping for a reasonably priced service with a professional that they feel comfortable dealing with. In general, licensed American attorneys find that competition with other professionals makes for a healthy and prosperous business environment, but to compare the services of a licensed American immigration attorney with one who is not licensed to practice law creates a false comparison as US law is clear that those without licensure cannot provide the services which they claim they can provide in an immigration context. In short: one cannot compare a legal service with an illegal service from a price standpoint as an illegal service provider simply cannot provide such services at any price.

For further information please see: licensed lawyer. To learn more about US Immigration from Southeast Asia please see: US Immigration Law Thailand.

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9th August 2010

Those who keep up with Immigration news have no doubt noticed the increasing tensions that have been caused by problems along the Southwestern Border of the United States. In a recent announcement distributed by the American Immigration Lawyers Association it was noted that a new Senate Bill was passed which could provide new funding for increased border security initiatives. To quote the announcement directly:

On 8/5/10, with hours left before the beginning on the August recess, the Senate passed a $600 million emergency spending bill aimed at increasing border security. The bill, titled the Emergency Border Security Supplemental Appropriations Act of 2010, was passed by a voice vote.

Senator Schumer (D-NY), along with several Democratic colleagues, introduced the Border Security Emergency Supplemental Appropriations Act of 2010 (S.3721) and used it as a substitute amendment to H.R. 5875, a bill passed by the House of Representatives on 7/28/10. Further action is required before H.R. 5875, as passed by the Senate, can be sent to President Obama’s desk for signature.

It is unclear at this point if the House of Representatives, which is set to return for a short two day session on 8/09/10, will take up the Senate measure or whether they will wait until September…

In response to the passage of this Bill, the Secretary of the Department of Homeland Security, Janet Napolitano, made the following statement:

“I commend the Senate for passing the Southwest Border bill to add important, permanent resources to continue bolstering security on our Southwest border. These assets are critical to bringing additional capabilities to crack down on transnational criminal organizations and reduce the illicit trafficking of people, drugs, currency and weapons. Over the past eighteen months, this Administration has dedicated unprecedented personnel, technology, and resources to the border and we will continue to take decisive action to disrupt criminal organizations and the networks they exploit. I encourage the House to act quickly on this bill to strengthen our historic border security efforts.”

The final resolution remains to be seen, but there are many who feel strongly about this issue and it is likely that the subject of undocumented immigration will remain controversial heading into the upcoming Congressional elections. That said, Comprehensive Immigration Reform may still be on the horizon notwithstanding bills passed in an effort to deal with the current issues along the US-Mexican border.

For related information please see: Comprehensive Immigration Reform. For information about bringing a loved one to the United States with proper documentation please see: K1 visa or US Marriage Visa.

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6th June 2010

In a recent news release from the American Justice Department it was announced that a US Border Patrol Agent has plead guilty to charges that he assaulted a Mexican National and thereby violated that individual’s civil rights. To quote the press release:

U.S. Border Patrol Agent Eduardo Moreno pleaded guilty today in federal court in Tucson, Ariz., to a federal criminal civil rights charge for assaulting a Mexican national who was in his custody, the Justice Department and the U.S. Attorney’s Office for the District of Arizona announced today. Sentencing has been scheduled for Aug. 12, 2010.
The underlying incident occurred on May 10, 2006, while Moreno was on duty at the U.S. Border Patrol Processing Center in Nogales, Ariz. During the plea proceedings and in documents filed in court, Moreno admitted that while escorting the victim at the center, he kicked the victim, struck him in the stomach with a baton, threw him down to ground, and punched him, all without any legitimate law enforcement reason to use force. As a result of the defendant’s actions, the victim suffered bodily injury.


“We place a great deal of trust in federal law enforcement officers, and the Civil Rights Division will aggressively prosecute any officer who violates the rights of others and abuses the power they are given to perform their critical duties,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.


Moreno faces a maximum of 10 years in prison and a fine of $250,000. An additional count in the indictment of making a false statement to federal agents will be dismissed under the plea agreement. This case was investigated by agents of the FBI and the U.S. Immigration and Customs Enforcement’s Office of Professional Responsibility. The case is being jointly prosecuted by Assistant U.S. Attorney Sandra Hansen of the U.S. Attorney’s Office for the District of Arizona and Trial Attorney Edward Chung of the Civil Rights Division.

This is an unfortunate incident which some feel is symptomatic of an overall problem in the area of US Immigration. Many advocates are calling for Comprehensive Immigration Reform (CIR), if for no other reason than to clarify the finer points of US Immigration law, procedure, and regulation. Hopefully, by creating a discourse about immigration many of the problems plaguing law enforcement agencies and local communities can be adequately addressed to the satisfaction of all concerned.

This author applauds the efforts of the American Justice Department as they seek to make the rule of law binding upon individuals in the USA, government agencies, and government agents alike.

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2nd June 2010

This blog routinely discusses issues surrounding United States Immigration Law. However, this author must admit that we often fail to mention the human side of the Immigration and visa process. At the time of this writing the United States appears to be on the verge of making radical changes to the makeup of American Immigration law. This will likely occur through Comprehensive Immigration Reform of the US Immigration and Nationality Act and other pertinent legislation. The reasons for seeking reform vary depending upon the individual or organization. That said, the following excerpt from a news story posted on Yahoo.com poignantly elucidates the human aspect of the issues surrounding Comprehensive Immigration Reform (also known as CIR):

Seven-year-old Daisy Cuevas, thrilled to see herself on television with U.S. First Lady Michelle Obama, didn’t quite understand the predicament in which she had innocently placed her undocumented Peruvian parents. “She laughed, she jumped up and down. She was excited” after the encounter at Daisy’s suburban Washington, D.C., elementary school, the girl’s maternal grandfather, Genaro Juica, told The Associated Press. The TV appearance made the pigtailed second grader a voice of the estimated 12 million immigrants living in the United States illegally — and a source of pride for Peru’s president, who visits Washington on Tuesday. “My mom says that Barack Obama is taking away everybody that doesn’t have papers,” Daisy told the U.S. first lady on May 19 at the New Hampshire Estates Elementary School in Silver Spring, Maryland. “Well, that’s something that we have to work on, right, to make sure that people can be here with the right kind of papers,” Michelle Obama replied. “But my mom doesn’t have papers,” said Daisy, a U.S. citizen by virtue of her birth. The color immediately drained from her mother’s face. She ran crying to call her parents in Lima, then went into hiding, fearful of being deported. These are tense times for people like Daisy’s mother, a maid who arrived in the United States with her carpenter husband when she was two months pregnant with Daisy. Daisy’s parents are fearful of U.S. anti-immigrant sentiment, which for many Latin Americans is epitomized by an Arizona law taking effect in July that gives police the right to demand ID papers of anyone suspected of being in the country illegally. The U.S. Department of Homeland Security has said it is not pursuing Daisy’s parents. Immigration investigations, it said in a statement, “are based on making sure the law is followed and not on a question-and-answer discussion in a classroom.” Nonetheless, Daisy’s mother asked the AP after the May 19 incident not to name her or her husband.

Many of those hoping for a “path to citizenship” for undocumented aliens in America feel that rectification of US Immigration policy can only be effected through reforming the Immigration laws. There are others who feel that the recently proposed CIR legislation does not go far enough in rectifying the inequities that currently exist under American Immigration law. A clarion call for further reform is especially noticeable from the LGBT immigration movement.

Hopefully, we will see Immigration reform soon, but in the meantime we may be able to learn something from this incident as it would appear that even children can see the “Equity Gap” that currently seems to exist in the realm of United States Immigration.

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25th August 2009

Apparently, the State of New York has made the decision to crack down on Immigration Consultants and so-called “visa agencies.” Only a licensed attorney or USCIS approved representative is entitled to prepare visa applications and petitions on behalf of clients pursuing United States Immigration benefits. In flagrant transgression of this rule, many companies in the United States of America provide unlicensed immigration advice. The State of New York has opted to take an aggressive position regarding this practice. To quote the a publication by the State of New York, promulgated through the American Immigration Lawyers Association:

“In thousands of cases across New York City and Long Island, these companies unlawfully filed immigration petitions with United States Citizenship and Immigration Services (USCIS) on behalf of immigrants and their families, jeopardizing efforts to obtain legal status.”

Many people do not recognize how detrimentally these unscrupulous agencies can affect prospective immigrants’ chances of obtaining an American visa. The aforementioned publication quoted the New York Attorney General as saying:

“The consequences of bad legal advice can be absolutely devastating,” said Attorney General Cuomo. “Fraudulent legal services can haunt individuals and their families for a lifetime. Companies and individuals that represent someone in a legal proceeding without having the authority to do so must be stopped, and my office will hold them accountable.”

It is good to see that local authorities in the United States are taking a firm stand against these practices. In a way, cracking down on these types of enterprises is of assistance to all immigrants and prospective immigrants because United States Immigration is a field that has been somewhat plagued by “fly by night” operations masquerading as attorneys and law firms in an effort to swindle clients out of their hard earned money.

Many of these organizations advertise “guarantees” and “full refunds” for failure to achieve desired results. In many cases, these too good to be true propositions are simply gimmicks to get unsuspecting immigrants to part with their money. Unfortunately, in Thailand “visa agencies” and those pretending to be lawyers prey upon uninformed foreigners and Thais. This practice is particularly prevalent in Thailand because many applications for visas are filed on behalf of family members who are of Thai extraction. Since Thailand is a sovereign nation independent of American legal jurisdiction, it is difficult for American authorities to apprehend those falsely claiming to be American attorneys. Therefore, the consumer environment in Thailand with regard to legal services is: Buyer Beware. Always ask if the attorney can provide a copy of their license to practice law from at least one jurisdiction in the United States.

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23rd August 2009

The United States Citizenship and Immigration Service (USCIS) is a very large bureaucracy that handles the processing of many petitions for US Immigration benefits. The Service can take a great deal of time to process visa applications and simple delay is not considered out of the ordinary. That being said, there are certain situations in which a delay by USCIS is unwarranted.

If it becomes necessary to compel a government agency to fulfill their statutorily mandated obligations, then a Writ of Mandamus can be filed to compel the agency or officer to perform their duty. A Mandamus action is a civil action and is promulgated by a court of competent jurisdiction. It specifically compels a government officer to carry out their duties in the manner prescribed by law. A piece of legislation known as the Mandamus Act, can be found at 28 U.S.C.: 1361. This provision specifically states that Mandamus is an, “Action to compel an officer of the United States to perform his duty.”

With regard to USCIS, a mandamus action will likely be brought before a Federal District Judge in a United States District Court. If granted, the court’s order will be binding upon the USCIS officer who allegedly failed to adequately fulfill his duties.

The writ of Mandamus exists for a very good reason as it was designed to create a check on the unfettered powers of government officers. That being said, those thinking of filing for a writ of mandamus should give the decision a great deal of thought because the ultimate result could turn out to be detrimental in certain cases. For example, should a case get caught up in the system making it necessary to file a Mandamus action, because the Mandamus order only compels the officer to take action, and does not compel the officer as to what decision should be made, it could turn out that the officer simply denies the application and the case comes to an end, albeit more quickly than it likely would have had the Mandamus order not been granted.

With this in mind, the Mandamus action should be utilized judiciously as not every case calls for it. In those cases where a Mandamus action would be appropriate, the seeker of such a writ should weigh all of his or her options in order to make a full determination as to whether the Mandamus action is appropriate in light of the unique facts in that particular case.

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