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Integrity Legal

Posts Tagged ‘lgbt immigration’

10th May 2011

It recently came to this blogger’s attention that the United States Navy, that indomitable symbol of America’s prowess on the high seas, has taken steps to begin solemnizing marital unions between those of the same gender. To quote directly from the Huffington Post:

WASHINGTON — Navy chaplains will be trained about their ability to perform same-sex civil marriage ceremonies under new guidance that would take effect if the Defense Department moves to recognize openly gay military service. Navy officials said Monday that they updated the training after questions came up about civil ceremonies for gay couples. Military training to apply the new law allowing gays to serve openly began earlier this year, and is expected to be complete by mid-summer.

For those who are unfamiliar with this topic it should be noted that the relatively recent repeal of the so-called “Don’t Ask, Don’t Tell” policy has resulted in the need for measures to integrate members of the LGBT community into the American armed forces. One component of such an integration is that same sex couples be permitted to marry, especially in State jurisdictions which explicitly allow such unions. However, this issue is not exactly “cut and dried,” to quote further from the aforementioned article:

The Navy ceremonies would be allowed at military facilities such as chapel and catering centers, but only in states that already recognize same-sex unions. And, even if a marriage is performed, same-sex partners would not get any health, housing or other benefits that are provided to married couples involving a man and woman.

The administration of this web log strongly encourages readers to click on the hyperlinks noted above to read this story in detail and learn more about these issues.

Clearly, there exists a States’ Rights component to the analysis of same sex marriage especially in light of the fact that 6 sovereign States and the District of Columbia have begun legalizing and solemnizing same sex marital unions within their respective jurisdictions. However, the final sentence of the above quotation should be concerning to same sex bi-national couples and the LGBT community as a whole. Although it is certainly positive that the American Navy is taking steps to begin solemnizing same sex unions while the overall legal stature of such unions is being determined, same sex couples are likely to continue to find themselves the victim of discrimination and double standards within the current American legal system.

Presently, there are cases in the judicial system which address these issues, but they have yet to take legal effect. Meanwhile, legislators such as Representative Jerrold Nadler have supported legislation such as the Respect for Marriage Act and the Uniting American Families Act (UAFA) which would deal with the American government’s current discrimination against the LGBT community. Until such time as federal legislation is passed to repeal the provisions of the so-called “Defense of Marriage Act” (DOMA), or judicial action is taken to overturn this legislation, it would appear likely that same sex couples will continue to be the object of discrimination notwithstanding the fact that such discrimination (regardless of whether it is being carried out under the “color of law”) violates Americans’ natural rights pursuant to ancient notions such as Magna Carta and the specific provisions protecting free association within the language of the U.S. Constitution. Meanwhile, there is a strong argument that the federal government’s current failure to recognize same sex marriages solemnized and/or legalized within the jurisdiction of a sovereign American State violates the 10th Amendment of the Constitution since the provisions thereof reserve certain rights to the American States and People, respectively.  Licensure of marriage in an intrastate context has long been viewed by many Constitutional scholars as an exclusively State prerogative.

For related information please see: LGBT Immigration.

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6th May 2011

It recently came to this blogger’s attention, via the website MetroWeekly.com, that the Attorney General of the United States, Eric Holder, has vacated a decision of the Board of Immigration Appeals which applied controversial section 3 of the so-called “Defense of Marriage Act” (DOMA) in a recent case. To quote directly from a PDF copy of AG Holder’s order as posted to the aforementioned website:

Pursuant to my authority set forth in 8 C.F.R. § 1003.1(h)(1)(i), I order that the decision of the Board of Immigration Appeals (“Board”) in this case applying Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, be vacated, and that this matter be referred to me for review.

In the exercise of my review authority under that regulation, and upon consideration of the record in this case, I direct that the order of the Board be vacated and that this matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act; 3) what, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief; and 4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.

Those reading this posting are encouraged to read the article on Metroweekly.com posted by Chris Geidner regarding these issues as this blogger found that posting to be very insightful.

For those who are not familiar with this issue it should be noted that the current provisions of DOMA preclude accordance of federal benefits to those who have entered into a same sex relationship. This preclusion even overrides State prerogatives regarding marriage as, in an immigration context, the language of DOMA precludes recognition of even a same sex marriage solemnized and/or legalized in a sovereign American State. Currently, there is some legislation, such as the Uniting American Families Act (UAFA) or the Respect for Marriage Act, pending before the American Federal legislature which would seek to remove the current restrictions being imposed upon the LGBT community.

It remains to be seen whether same sex visa benefits will be accorded the same sex partners engaged in a bi-national relationship, but one thing is clear: there is momentum gathering behind the cause of LGBT equal rights as American authorities would seem to be taking notice of the legitimate grievances of those who have, for too long, been denied their rights to equal protection under the law. Meanwhile, this blogger finds it likely that there will eventually be some sort of decision regarding the accordance of Full Faith and Credit to those legal marriages solemnized and/or legalized by those States which currently license such unions. As of the time of this writing, however, such remedies remain to be seen and the assurances that they will manifest themselves sometime in the future is likely cold comfort to those who are separated from their loved ones now.

For related information please see: Full Faith and Credit Clause.

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16th April 2011

Those who read this blog with any degree of frequency may have noticed that the administration of this resource considers the issue of same sex marriage; and Federal recognition thereof, to be one of, if not the, foremost pending political and legal issues of the age. This opinion is based upon the fact that currently discriminatory Federal policies regarding recognition of properly solemnized and legalized State marriages between same sex couples are clearly operating in violation of long held Constitutional notions regarding State Sovereignty, Federalism, Separation of Powers, Full Faith and Credit, and Equal Protection.

Bearing the above in mind, it should be noted that there are legislators in Washington D.C. who seem committed to the cause of Equal Rights for the LGBT Community. To quote directly from a post on the website ImmigrationEqualityActionFund.org, apparently authored by Steve Ralls (Contact Details: 202-347-7007, [email protected]):

Today, Congressman Jerrold Nadler (D-NY), the ranking Democrat on the Judiciary Subcommittee on the Constitution, Congresswoman Zoe Lofgren (D-CA), the ranking Democrat on the Judiciary Subcommittee on Immigration, and Representatives John Conyers (D-MI), Tammy Baldwin (D-WI), Jared Polis (D-CO), Mike Honda (D-CA), Luis Gutierrez (D-IL), and Jackie Speier (D-CA) announced the re-introduction of the Uniting American Families Act (UAFA). This overdue legislation would allow gay and lesbian Americans to sponsor their permanent partners for legal residency in the United States, a right currently enjoyed only by married heterosexuals under immigration law. Because the U.S. does not legally recognize gay and lesbian couples and their children as families, many same-sex binational couples are torn apart. Senator Patrick Leahy (D-VT) also introduced UAFA today in the Senate.

In previous postings on this blog, the efforts of Representative Jerrold Nadler in support of the LGBT Community and same sex bi-national couples have been noted and Representative Nadler’s current reintroduction of the Uniting American Families Act (UAFA) is simply one more example of this legislator’s continuing dedication to the cause of Equal Rights for the LGBT community. On a related note, it was recently pointed out that Representative Nadler is also a proponent of the so-called “Respect for Marriage Act” (RFMA) which would provide Federal recognition for same sex marriages solemnized and legalized in a sovereign State.

At the time of this momentous event this blogger would ask all interested parties in matters pertaining to Liberty, States Rights, Civil Liberties, and Personal Freedom to take heed of the current events involved in the struggle to obtain equal protection under the law for the LGBT community as a whole as well as same sex bi-national couples who are currently separated due to the current state of American Immigration law. On that point, it should be noted that the United States Citizenship and Immigration Service (USCIS) recently attempted to put policies in place to halt deportations of foreign same sex partners of American Citizens. It would appear as though USCIS’s policy was aimed at providing some relief, akin to that once accorded to individuals impacted by the so-called “Widow’s Penalty,” to those who are currently subjected to Federal non-recognition of same sex marriages, even those lawfully solemnized and legalized in a sovereign US State,  pursuant to what are clearly Unconstitutional provisions of the so-called “Defense of Marriage Act” (DOMA). That said, as of the time of this writing it is this blogger’s understanding that the Department of Homeland Security (DHS) has rescinded USCIS’s hold on such deportations thereby allowing the same sex bi-national spouse, even if the underlying marriage was solemnized and legalized in one of the Several States, to be deported.

The current discriminatory practices, pertaining to the LGBT community, on the part of the United States government are so pervasive that even first-year law students are aware of the issue. The current legal discrimination faced by a same sex bi-national couple seeking immigration benefits in much the same manner as their different-sex counterparts is so noticeable that even those with only an elemental grasp of the dynamics of United States law can discern many of the issues. To quote directly from a blog post titled Why Denying Homosexuals the Right to Marry is Completely Unconstitutional, authored by Sarah McCarthy on the site My Dog Ate My Blog:

Our country (as I’ve learned over the past week) essentially works like this: states are presumed to have all the power. Our founding fathers were most worried about tyrannical government, and hence wanted to give individual states the power to govern themselves and make their own laws in almost every situation. Hence, in the U.S., we really do have 50 different sets of law governing 50 different states.

Some of these 50 States have opted to use their lawmaking powers to provide marital benefits to same sex couples wishing to marry within their jurisdiction. The administration of this blog would strongly suggest that readers click on the hyperlinks noted above to read more from the above cited posting.  As noted by Ms. McCarty above, pursuant to the 10th Amendment of the United States Constitution, those powers not specifically enumerated to accrue to the Federal government are to be reserved to the States and the People respectively. Therefore, pursuant to the explicit language of the 10th Amendment and the implications present throughout the Constitution as a whole inherent State rights, such as the right to marry those within the jurisdiction of a given State, are generally considered to be beyond the bailiwick of the Federal government.

Even though legislative initiatives may ultimately prove to be effective for the LGBT community in securing some of the rights, privileges, and immunities associated with marriage it is this blogger’s opinion that only through full repeal of DOMA by the US Congress or the overturning of that legislation on Constitutional grounds by the US Supreme Court can the issue be laid to rest. In this blogger’s opinion, it is especially desirable that a “case or controversy,” such as that which recently arose in Massachusetts Federal Court, be brought before the United States Supreme Court as only that body has the authority, and possibly expertise, to delineate the application of the Full Faith and Credit Clause with regard to interstate vs. State-Federal recognition of same sex marriages.

There are some who have raised the argument that the same sex marriages which are legal in certain jurisdiction are only legal as a result of judicial fiat. However, this blogger would argue that, especially in the case of Massachusetts, there are strong indications that there is a political will manifesting itself in favor of same sex marriages, at least within that jurisdiction. To support this claim it may be best to quote directly from an article written by Pam Belluck and published by the New York Times on June 14, 2007:

Same-sex marriage will continue to be legal in Massachusetts, after proponents in both houses won a pitched months-long battle on Thursday to defeat a proposed constitutional amendment to define marriage as between a man and a woman.

“In Massachusetts today, the freedom to marry is secure,” Governor Deval Patrick said after the legislature voted 151 to 45 against the amendment, which needed 50 favorable votes to come before voters in a referendum in November 2008.

The administration of this blog strongly encourages readers to click upon the hyperlinks above to read this story in detail. Clearly, there are those within the jurisdiction of the Commonwealth of Massachusetts who support equal marital rights for same sex couples. However, Federal recognition of same sex unions remains to be seen. Hopefully, through continued action on the part of legislators such as those mentioned above the notions of Equal Protection under the law and State sovereignty will be upheld to the benefit of all American families.

For more information please see: Same Sex Visa or same sex marriage.

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31st March 2011

It recently came to this blogger’s attention that the Department of Homeland Security (DHS) has issued instructions to the United States Citizenship and Immigration Service (USCIS) to dispense with the hold on deportations of same sex spouses of United States Citizens and Lawful Permanent Residents which was announced approximately 2 days ago. To quote directly from an article posted on the Advocate.com entitled Official: No Hold On Gay Immigration Cases:

Wednesday morning USCIS press secretary Christopher S. Bentley told The Advocate that the agency had received legal guidance to lift the hold it had issued Monday. The guidance was issued in the form of written communications from the Office of the General Counsel at Department of Homeland Security (USCIS is a component of DHS).

Those interested in reading more about this information are highly encouraged to click on the hyperlinks immediately preceding the quotation to learn more.

Clearly, officials at the United States Citizenship and Immigration Service (USCIS) were attempting to provide some relief to those in the LGBT community in the USA with their same sex bi-national partners who are stuck in the currently limbo-like immigration system, as it pertains to same sex marriages. The question this blogger has is: why all of this bureaucratic runaround? There is a clear venue for resolving this issue: the United States Supreme Court, but it would seem as though the administration would like solve this issue through internal bureaucratic rule making and unilateral executive actions, but this is not the way law is made and this is not the legal way of effecting change in situations such as the one currently facing the LGBT community. Even a Supreme Court decision on this issue is unlikely to be straightforward as there are many aspects of the Full Faith and Credit Clause which come up in the context of interstate recognition of same sex marriage. However, the decision of the Supreme Court, in this blogger’s opinion, on the issue of FEDERAL recognition of same sex marriages legalized and solemnized in the sovereign States is likely to produce an outcome whereby an avenue would be created to allow same sex bi-national couples to receive immigration benefits of the same quality as those granted to different sex bi-national couples.

The announcement from USCIS on Monday about placing a “hold” on deportations of same sex partners of US Citizens and Permanent Residents came as a relief to many in the United States who may only be subject to deportation due to the onerous (and possibly UnConstitutional) provisions of the so-called “Defense of Marriage Act” (DOMA) since some same sex bi-national couples have legalized and solemnized a valid same sex marriage in one of the 6 States (along with the District of Columbia) that allows same sex marriage. The only thing precluding Federal recognition of same sex marriages performed within the jurisdiction of the sovereign States which recognize such unions is the questionably Constitutional so-called “Defense of Marriage Act” (DOMA) which was promulgated and enacted under the Presidency of William Jefferson Clinton.

In a recent memorandum from the Attorney General (Eric Holder) to the Speaker of the House of Representatives it was noted that the President’s administration has taken the position that same sex married couples ought to be granted the benefit of so-called “strict scrutiny” review from the Supreme Court and that the administration would discontinue in prosecuting DOMA cases against LGBT couples. This blogger has noted that such a position may not be beneficial to the overall cause of equal immigration rights as failure to get a “case or controversy” before the United States Supreme Court could lead to a situation in which this complex legal issue is not adjudicated by the Highest Court in the USA and therefore remains in the “limbo” in which this issue currently continues to languish. The Department of Homeland Security’s announcement further shows that until the provisions of DOMA, which preclude Federal recognition of same sex marriage, are overturned the position of the married LGBT community (at least in the eyes of the law and the immigration authorities) will remain precarious.

One point in the above cited article was of particular interest to this blogger. The following passage was quoted from the aforementioned article:

Bentley declined to release any of the written documents at this time, saying it was privileged communication. He emphasized that the official policy itself within DHS had never changed.

What PRIVILEGE!!!! So now the United States government, in the form of the Department of Homeland Security, invokes privilege (a legal principle generally reserved for individual natural persons when dealing with the US government) to keep their own policy memorandum regarding this issue secret? Why the secrecy? Why all of the pomp and circumstance about how important the administration’s memo was to the LGBT community when in reality it would appear to have done nothing substantive for the cause of LGBT equal rights and might have even placed the LGBT community in a less favorable position compared to their position prior to the administration’s memo to the Speaker of the House? So the Department of Homeland Security is claiming privilege when communicating with the United States Citizenship and Immigration Service (USCIS), an American agency under DHS jurisdiction. Does anyone find it strange that the United States government now claims that civilian inter-agency memos regarding official policy which pertains to Americans and their families are privileged? It was this blogger’s belief that the United States governmental authorities are servants of the people and therefore required to provide transparency in their policy making endeavors especially when such policy making can impact a wide spectrum of the United States Citizenry and their families.

Clearly, the struggle to secure equal immigration rights for the LGBT community has yet to be won, but for those interested in this issue it is clear that there may be a long campaign to see equal treatment of same sex bi-national couples under the law of the United States of America. This blogger and this blog will continue to monitor this important and interesting issue.

Another method to gain equal immigration rights for same sex bi-national couples is through passage of legislation such as the Uniting American Families Act (UAFA) which would grant same sex bi-national couples the benefit of applying for an immigrant visa for a “permanent partner” thereby circumventing the immigration restrictions imposed by DOMA. Federal legislators such as Representative Jerrold Nadler have introduced such legislation repeatedly in an effort to provide some kind of relief to those same sex bi-national couples who continue to be denied equal access to family immigration benefits. As of the time of this writing, Mr. Nadler has gone so far as to openly call for a repeal of DOMA and the promulgation of the Respect for Marriage Act a piece of legislation which would restore Federal recognition of State licensed marriage and restore, at least in part, the rights of same sex married couples who merely seek equal protection under the law.

For related information please see: same sex immigration.

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21st March 2011

It recently came to this blogger’s attention that the Immigration Equality Action Fund Blog is reporting that Americans are calling upon the Department of Homeland Security to change its policy regarding Lawful Permanent Resident status for LGBT spouses of American Citizens and Lawful Permanent Residents. To quote directly from the Immigration Equality Action Fund Blog:

In an interview published last night, Immigration Equality executive director Rachel B. Tiven calls on the Department of Homeland Security to stop denying green card applications filed by spouses of LGBT Americans.

Those who are unaware of the issues surrounding the debate for equal immigration benefits for the LGBT community should note that pursuant to the so-called “Defense of Marriage Act” (DOMA) the United States Federal government is prohibited from granting immigration benefits to same sex bi-national couples even though such benefits are routinely granted to different-sex couples. Meanwhile, a number of sovereign American States have heeded the call of their citizenry and taken measures which would allow legal recognition for marriages between individuals of the same sex. Notwithstanding that a marriage may be legalized and solemnized by a sovereign US State, such as Massachusetts, for example; the Federal government still will not recognize said marriage pursuant to the provisions of DOMA. To quote further from the Immigration Equality Action Fund Blog:

“It is imperative that the administration stop breaking up families based on a law that it says is unconstitutional,” Tiven told reporter Andrew Harmon. “We’re calling on the Department of Homeland Security to stop denying green card applications for the spouses of American citizens.”

As noted above, the result of continued enforcement of DOMA in an immigration context is the constant and continued partition of bi-national families. It would appear as though proponents of equal LGBT rights are hoping that DHS can take some steps to alleviate what is, for some, an increasingly untenable situation. To quote further from the Immigration Equality Action Fund Blog:

Representatives Jerrold Nadler (D-NY) and Zoe Lofgren (D-CA) – both important leaders on LGBT and immigration issues in Congress – joined Immigration Equality’s call for a halt to deportations involving legally married spouses. New York Senator Kirsten Gillibrand also weighed in, telling reporters that, ““The recent news of deportations involving legally married gay and lesbian binational couples is heartbreaking.”

This blogger highly encourages readers to click on the above links to learn more about the Immigration Equality Action Fund and the struggle for equal rights in the LGBT community. It should be noted that Representative Jerrold Nadler has been a strong proponent of legislation such as the Uniting American Families Act (UAFA), legislation designed to provide immigration benefits to same sex bi-national couples.

There have been many sovereign US States that have shown “true grit” in the struggle for equal LGBT rights, privileges, immunities, and protections. States such as Massachusetts, Iowa, Rhode Island, Vermont, New Hampshire, Connecticut as well as the District of Columbia have shown support for the struggle of equal rights for LGBT families. Meanwhile, continued enforcement of the provisions of the Defense of Marriage Act (DOMA) keep bi-national same sex couples from attaining equal immigration benefits when compared to their different-sex counterparts.

The issue of same sex marriage and equal rights for same sex couples is something that some have suggested is a divisive issue, but in this blogger’s opinion it need not be. For example, this blogger comes from a State (the State of Kansas) that explicitly forbids same sex marriage (yes, notwithstanding the State of Kansas’s position on same sex marriage this blogger feels that the right to marry whom one chooses is a civil right guaranteed to individuals under the U.S. Constitution that should be granted to those in Kansas as well as everywhere else in the USA, but the following analysis is primarily concerned with the same sex marriage issue in an interstate context). There are some who argue that this means that the State Courts are barred from recognizing same sex marriages legalized in other States. This blogger would argue that a different interpretation of the Full Faith and Credit Clause would allow a State such as Kansas to acknowledge that a legal marriage between two people of the same sex exists in fact in another American jurisdiction (say, Massachusetts, for example). Concurrently, the provisions of a State Constitution may prohibit any further State recognition or execution of a same sex divorce, but such a scenario is certainly better than the current state of affairs where no same sex couples are granted any type of Federal or interstate marital recognition at all. That said, none of these issues has yet to be fully resolved so any analysis remains speculation.

For related information please see: same sex visas.

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30th December 2010

In an interesting recent turn of events LGBT Equal Rights advocates have seen many political victories in recent weeks. This blogger came across and interesting article on the website Wikinews.org, to quote directly from Wikinews:

Friday, December 24, 2010

In an interview on the United States television show Good Morning America today, U.S. vice president Joe Biden said that a positive consensus on same-sex marriage is “inevitable” as the country “evolves.”

“[There is] inevitability for a national consensus on gay marriage. I think the country’s evolving. And I think you’re going to see, you know, the next effort is probably going to be to deal with so-called DOMA,” said Biden.

For those who are unfamiliar with the issues surrounding the struggle for LGBT Equal Rights the so-called Defense of Marriage Act (DOMA) currently bars the United States Federal government from recognizing same sex marriage (or any other sort of same sex civil union). The Federal government, pursuant to the provisions of DOMA, is not even permitted to recognize those same sex marriages which are legalized and solemnized pursuant to an American State’s law. Currently, 5 US States allow some form of same sex marriage or civil union. For Immigration purposes, DOMA is a significant piece of legislation as it forces the American Federal government to restrict family immigration benefits to different sex couples. The product of these circumstances as they sit now is a situation in which many bi-national couples are separated from each other by borders, and sometimes oceans. Wikinews.org went on:

Biden’s remarks come just days after U.S. president Barack Obama signed into law, the repeal of Don’t ask, don’t tell (DADT). The repeal, which was signed by Obama on Thursday, will now allow gay and lesbian service members to serve openly in the country’s military, without fear that they will be discharged form service. A report by The Pentagon earlier this month concluded most U.S. service personnel do not believe reform of the rules on gays and lesbians serving in the military would affect morale, unit cohesion or military effectiveness. The report found only 30% believed that changing the law would have a negative effect. DADT, in effect for 17 years, was repealed by the United States Senate on Saturday. The military will cease enforcement of the policy in 60 days time, after the Pentagon has certified to Congress that it, and the military are ready to implement the new law.[sic]

The repeal of Don’t Ask Don’t Tell was a significant step forward for Gay, Lesbian, Bisexual, and Transgendered (LGBT) individuals, but full equality under the law has yet to materialize especially as DOMA remains in place thereby precluding family immigration benefits for LGBT couples. Some lawmakers have attempted to draft legislation to deal directly with the issue of discrimination of bi-national same sex couples for immigration purposes. In recent years, legislation such as the Uniting American Families Act (UAFA) has been introduced to allow “permanent partners” of American Citizens or Lawful Permanent Residents to obtain immigration benefits similar to those granted to different-sex spouses of US Citizens and Lawful Permanent Residents. This blogger recently came upon an interesting webpage pertaining to this issue on the website logcabin.org, the official website of the Log Cabin Republicans, to quote directly from said webpage:

The Uniting American Families Act (UAFA), pending in Congress, would end the discrimination against gays and lesbians in immigration laws by allowing U.S. citizens and permanent residents to sponsor their same-sex partners for immigration benefits. The version of the bill introduced in the House last February (H.R.1024) currently has 116 cosponsors, while the Senate version (S. 424) has 22 cosponsors. In addition, the Reuniting Families Act (H.R.2709) also includes UAFA as a provision of the larger immigration bill.

While some groups hostile to immigration fear that the UAFA would open the floodgates to massive immigration, such fears are unfounded. It would grant residency only to those foreign nationals involved in a financially interdependent permanent partnership with a U.S. citizen. Many of these individuals have already been living in the U.S. for years on special work or student visas and have been contributing to American society. In any event, the administrative checks that ensure that heterosexual couples applying for residency are not involved in a “sham” relationship will do the same for gay and lesbian couples. The measure is simply not a conduit for unfettered immigration.

There would seem to have been some speculation that passage of an UAFA-like piece of legislation would result in an explosion of fraudulent visa applications submitted by those wishing to take advantage of what appears, at first glance, to be a new avenue for seeking immigration benefits through use of a “sham” relationship. In this authors opinion, it is highly unlikely that passage of UAFA-like legislation would result in a significant increase in immigration fraud as the United States government currently has a very sophisticated system in place which is designed to root out immigration fraud at multiple levels of the immigration system and at multiple phases of the overall United States immigration process.

Hopefully, as Vice President Biden noted above, a “positive consensus” on this issue can be reached with the end result being the unification of bi-national families in America.

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23rd December 2010

Those who frequently read this web log may have noticed that this author occasionally comments upon the progress of American gaming legislation as recent legislative enactments have greatly altered the online gaming landscape. Although this issue would not seem similar to that of LGBT rights at first blush, there are some commonalities from a legal perspective which were recently noted in an article written by April Gardner for the website casinogamblingweb.com. To quote directly from this article:

US lawmakers took the first step on Saturday towards giving all Americans the same rights and freedoms when the Senate voted to repeal Don’t Ask, Don’t Tell. Online poker players are hoping this was the first step towards full freedom, and that the Unlawful Internet Gambling Enforcement Act repeal may be next.

The repeal of the policy referred to as “Don’t Ask, Don’t Tell,” was a significant achievement for proponents of LGBT rights. That said, as noted in a previous posting on this blog, the Defense of Marriage Act (DOMA) still continues to act as a barrier to equal immigration rights for same sex bi-national couples as well as LGBT bi-national couples. At one point, it was thought that the Defense of Marriage Act’s provisions might be circumvented in the context of US Immigration through enactment of the Uniting American Families Act (UAFA), but, alas, this legislation has yet to be enacted. Therefore, there are those who argue that there is still a long way to go in the fight for equal rights for the LGBT community. That said, the article went on to note:

The Don’t Ask, Don’t Tell law is one that Democrats have been pushing hard to repeal for several years. Another of those ill-advised laws on the radar for Liberals is the UIGEA. In recent weeks, Senator Harry Reid has proposed an online poker bill, but that legislation alone would not have overturned the UIGEA.

Although at first glance the UIGEA (the Unlawful  Internet Gambling Enforcement Act) and the policy of “Don’t Ask, Don’t Tell” would seem to be dissimilar in nature. In fact, these two issues touch upon a very significant issue which seems to be continuously debated in the United States. This issue transcends party ideology: personal freedom. The ability to freely, peaceably, and consensually associate with whomever one chooses is a fundamental right enshrined in the United States Constitution and the Bill of Rights. Many would argue that the law forbidding same sex bi-national couples, even those lawfully married in one of the 5 US States which currently solemnize same sex unions, from obtaining the same immigration rights as different sex couples is self-evidently a violation of the right to equal protection under American law. In this same vein, there are many who argue that Americans should have the ability to choose to participate in online gaming so long as they are above the lawful age to engage in such activity in their jurisdiction and the gaming operation is regulated so as to ensure that games are fair and the gaming operator is solvent. That said, the author of the aforementioned article seems pessimistic about the short term future of legislation designed to regulate and thereby legitimize online gaming:

It is unlikely that online gambling prohibition will be discussed in the closing days of the lame-duck session. For online poker players, however, they can take comfort in the Don’t Ask, Don’t Tell repeal.

The repeal shows that everything is worth the wait, as millions of gay and lesbians exhibited Saturday through tears of joy. It may take a little longer, but those tears of joy will eventually come for the millions of online gamblers in this country as well.

Truly, the repeal of “Don’t Ask, Don’t Tell,” was a monumental step forward for advocates of Equal Rights, but the issue of online gaming remains both controversial and complicated in the USA as many different jurisdictional issues arise especially in the context of the internet and World Wide Web. Therefore, it remains to be seen what the US Congress will ultimately decide to do with regard to online gaming, but hopefully the eventual outcome will result in positive benefits for players, operators, and the United States economy as this sector could prove to be an area of job growth for the USA in the coming years.

For related information please see: Online Gaming Law or Same Sex Marriage Visa.

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21st December 2010

This blog was not very adept at staying on top of the issues surrounding the so-called DREAM Act which would have made a great deal of progress in dealing with issues pertaining to the children of undocumented immigrants wishing to regularize their status in the United States. Recently, it was reported the the DREAM Act legislation was effectively derailed through use of cloture in the United States Senate. The American Immigration Lawyers Association has been working diligently to try to assist in this bill’s passage, but to no avail. To quote directly from the website of AILA:

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) is disappointed that, after successful passage in the House, the Senate failed to advance the bipartisan DREAM Act this morning. The legislation did not garner enough votes to overcome a procedural hurdle, even though with 55 votes it had the support of a majority of the chamber’s lawmakers.

“It was with a heavy heart that I watched the DREAM Act deferred to yet another Congress. After the historic House victory and the tremendous outpouring of grassroots support for this legislation that would help deserving young people, today’s failed cloture vote is a wrong-headed dénouement,” said AILA President David Leopold who watched the legislative proceedings from Capitol Hill.

“It was sad to see some U.S. Senators putting politics before principles to vote no on cloture, thereby attaching their names to the wrong side of history. The DREAM Act did not pass today, but inevitably it will be law.”

The DREAM Act’s failure is disappointing for many, but there are those who still believe that the most pressing issue in the realm of United States Immigration is that of the Uniting American Families Act (UAFA). Passage of this legislation would alleviate the current restrictions placed upon same sex or LGBT bi-national couples who wish to be reunited in the USA. Under the provisions of the so-called “Defense of Marriage Act” (DOMA) same sex couples, even those lawfully married in a jurisdiction within the United States of America, cannot obtain the same family based visa benefits compared to their different sex counterparts. There are many who seem to feel somewhat frustrated by the fact that other legislation such as the DREAM Act has gained traction on Capitol Hill while legislation such as UAFA, or legislation which includes  UAFA-like language, has not garnered such substantial support. To quote from a posting posted prior to the DREAM Act’s Senate vote by Melanie Nathan on the Lezgetreal.com blog:

The US has yet to enact laws that will prevent gay and lesbian couples from having to exile to stay with foreign partners or from partners facing deportation.  The discrimination in the USA is based on the fact that same-sex partners are specifically excluded from Federal rights – such as the right to sponsor a spouse for a green card, because of the Defense of Marriage Act. (DOMA)

There are some who would argue that DOMA violates the notions of state sovereignty and individual civil liberties enshrined in the US Constitution and Bill of Rights by depriving US Immigration benefits to LGBT couples while granting them to different sex couples. Bearing this in mind, it ought to be noted that the States’ Rights arguments in favor of overturning DOMA became much more potent after some American States began recognizing and solemnizing same sex unions. There are some who feel that the final decision in this matter may ultimately be made by the US Supreme Court as cases are currently proceeding through the US judicial system which could overturn DOMA. It still remains to be seen whether DOMA will remain in force, be circumvented through use of UAFA, or be overturned by the US Courts. In any case, there are many who hope that some sort of solution arrives soon as many bi-national families remain separated as a result of DOMA’s continued enforcement.

For related information please see: LGBT Visa.

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9th December 2010

สำหรับผู้ที่ติดตามบล็อกอย่างต่อเนื่องคงไม่มีข้อสงสัยในเรื่องที่มีการถกเถียงกันเมื่อเร็วๆนี้เกี่ยวกับเรื่องการปฏิรูปการเข้าเมือง หน่วยบริการการวิจัยของสภานิติบัญญัติและสมาคมทนายความคนเข้าเมืองอเมริกันได้เผยแพร่เอกสารเกี่ยวกับการไม่อนุญาตให้เข้าเมืองตามกฎหมายซึ่งเป็นที่ถกเถียงกันในประเด็นของการปฏิรูปคนเข้าเมือง เอกสารอ้างอิงจากการตีพิมพ์โดยหน่วยบริการการวิจัยของสภานิติบัญญัติและสมาคมทนายความคนเข้าเมืองอเมริกัน

ตัวบทกฎหมายนี้มีวัตถุประสงค์ในการที่จะปฏิรูปการเข้าเมืองในมุมมองที่นอกเหนือจากชาวต่างชาติซึ่งมีการบัญญัติเมื่อปี 1990 ชาวต่างชาติที่ประสงค์จะขอวีซ่าต้องเผชิญกับการตรวจสอบการเข้าเมืองโดยเจ้าหน้าที่กงสุลของสหรัฐในต่างประเทศ กระบวนการนี้มีจุดมุ่งหมายเพื่อตรวจสอบผู้ที่ขาดคุณสมบัติในการขอวีซ่าหรือการเข้าเมืองซึ่งมูลเหตุที่ไม่สามารถเข้าเมืองได้เป็นไปตามพระราชบัญญัติว่าด้วยสัญชาติคนเข้าเมือง (INA)หลักเกณฑ์ต่างๆได้แก่ ข้อมูลด้านสุขภาพ ประวัติอาชญากรรม ประวัติที่เกี่ยวกับความมั่นคง การก่อการร้าย ความสงบสุขของประเทศ เช่น ความขัดสน การหางานโดยไม่ได้รับใบอนุญาตแรงงาน การเข้าเมืองโดยผิดกฎหมายและการละเมิดกฎหมายคนเข้าเมือง การขาดคุณสมบัติในการถือสัญชาติ และคนต่างด้าวที่ถูกเนรเทศออกไป หลายปีที่ผ่านมา สภานิติบัญญัติยังคงยึดหลักการเดิมในการที่จะไม่อนุญาตให้เข้าเมือง กฎหมายสองฉบับที่บังคับใช้เป็นปีที่ 110 สภานิติบัญญัติยังคงยึดนโยบายเดิมในการกีดกันคนต่างด้าวที่เป็นสมาชิกของการก่อการร้าย

การก่อการร้ายเป็นปัจจัยสำคัญที่เจ้าหน้าที่รัฐของอเมริกาได้เชื่อมโยงถึงองค์กรต่างๆที่เกี่ยวกับการเข้าเมืองและการเดินทางมายังสหรัฐอเมริกา ความสงบเรียบร้อยและความปลอดภัยของประเทศเป็นประเด็นสำคัญสำหรับเจ้าหน้าที่กงสุลและคนเข้าเมืองอเมริกัน อ้างถึงการเผยแพร่ข้อความที่กล่าวถึงแล้ว ดังนี้

ปีที่ 110ของสภานิติบัญญัตินั้นมีประเด็นของการไม่ให้เข้าเมืองของประเด็นเรื่องของสุขภาพกลับมาอีกครั้งคือเรื่องของผู้ที่ติดเชื้อเอชไอวี หรือเอดส์ เมื่อเร็วๆนี้มีประเด็นในเรื่องการแพร่ระบาดของเชื้อไวรัสสายพันธุ์เอช 5 เอ็น 1 ซึ่งก็กลายเป็นประเด็นหนึ่งที่คัดกรองในด่านคนเข้าเมือง มีคำถามมากมายเกี่ยวกับความรับผิดชอบต่อสังคมในเรื่องการเข้าเมืองที่เกี่ยวกับบริบททางด้านสุขภาพและแผนการประกันสุขภาพของเยาวชนในปีที่ 111ของสภานิติบัญญัติ

ไข้หวัดใหญ่เป็นประเด็นทางด้านสุขภาพที่มีการตระหนักถึงเมื่อไม่กี่ปีที่ผ่านมานี้ แต่อย่างไรก็ตาม สำหรับการเพิกถอน โรคเอดส์ออกจากรายชื่อโรคที่ไม่สามารถเข้าเมืองได้ให้กลายเป็นสามารถเข้าเมืองได้หลังจากที่ผู้ที่ติดเชื้อเอดส์ไม่สามารถที่จะเข้าสหรัฐอเมริกาได้อย่างถูกต้องตามกฎหมาย ประเด็นนี้เป็นเรื่องที่ร้ายแรงในหมู่ของเพศที่สาม เลสเบี้ยน เกย์ ไบเซ็กชวล (LGBT) ในฐานะที่เชื้อเอชไอวีและเชื้อเอดส์ดูเหมือนว่าจะเป็นประเด็นที่มีผลกระทบต่อกลุ่มคนหรือคู่ในหมู่รักร่วมเพศ รายงานนี้เป็นประเด็นที่เกี่ยวเนื่องกับการอภิปรายเรื่องการร่างกฎหมายเพื่อการปฏิรูปการเข้าเมือง

ในขณะที่การเปลี่ยนแปลงเหตุที่จะไม่สามารถเข้าเมืองได้นั้นไม่เป็นที่ปรากฎ ผู้ที่สนับสนุนการปฏิรูปการเข้าเมืองอาจจะมองหาทางที่จะยกเลิกบทบัญญัติบางมาตราในฐานะที่เป็นส่วนหนึ่งของข้อเสนอในการร่างกฎหมายเพื่อการปฏิรูปการเข้าเมือง บทบัญญัติที่ให้ชาวต่างด้าวผู้ที่ไม่สามารถเข้าเมืองสหรัฐอเมริกาอย่างถูกต้องตามกฎหมาย ตัวอย่างเช่น อาจจะได้รับการระงับไว้ชั่วคราวในส่วนหนึ่งของการร่างกฎหมาย ต้องมีเหตุผลที่หนักแน่นสำหรับการไม่สามารถเข้าเมืองได้ ในทางกลับกันอาจจะเป็นส่วนหนึ่งของแผนงานการร่างกฎหมายในหมู่ของผู้ที่สนับสนุนนโยบายการปฏิรูปการเข้าเมืองที่เข้มงวด

ทุกๆปีนั้นจะมีผู้คนจำนวนมากที่ไม่สามารถเดินทางเข้าประเทศสหรัฐอเมริกาได้ ท่ามกลางการที่ไม่สามารถเข้าเมืองได้นั้นผู้ที่ไม่สามารถเข้าเมืองได้จะหาทางแก้ไขในการเลือกที่จะขอยกเว้นสิทธิผ่านทาง I-601 หรือ I-212โดยการขออนุญาตล่วงหน้าที่จะเดินทางเข้าไปยังสหรัฐอเมริกาอีกครั้งหนึ่ง สำหรับผู้ที่ไม่สามารถเข้าเมืองได้และไม่สามารถที่จะขอยกเว้นสิทธิได้อย่างไม่เป็นทางการซึ่งถูกกีดกันจากสหรัฐอเมริกา สิ่งที่พึงระลึกไว้คือ การที่ไม่สามารถเข้าเมืองได้อย่างถูกต้องตามกฎหมายนั้นยังคงมีทางแก้ไขคือ การขอยกเว้นสิทธิ อาจกล่าวได้ว่า ขั้นตอนการยกเว้นสิทธิและมาตรฐานในการตรวจสอบการได้รับการยกเว้นสิทธินั้นค่อนข้างที่จะยุ่งยาก ด้วยเหตุผลดังกล่าว คู่สองสัญชาติหลายๆคู่เลือกที่จะใช้บริการทนายความคนเข้าเมืองอเมริกันเพื่อที่จะช่วยดำเนินการในเรื่องเกี่ยวกับการเข้าเมืองอเมริกัน สิ่งที่ควรกระทำคือการตรวจสอบความน่าเชื่อถือในการเป็นผู้เชี่ยวชาญทางด้านกฎหมายคนเข้าเมืองอเมริกา เนื่องจากว่าทนายความอเมริกันที่ได้รับอนุญาตเท่านั้นที่มีสิทธิที่จะให้คำแนะนำ คำปรึกษาและเป็นตัวแทนในการจัดการเรื่องก่อนที่จะเข้าไปสู่ขั้นตอนของหน่วยบริการคนเข้าเมืองและพลเมืองสหรัฐอเมริกา (USCIS) กระทรวงความมั่นคงแห่งมาตุภูมิ และหน่วยงานของสหรัฐอเมริกา

To view this information in English please refer to the previous posting on this blog.

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8th December 2010

For those who frequently read this web log will undoubtedly note that a frequent topic discussed within these pages is Comprehensive Immigration Reform. In a recent document promulgated by the Congressional Research Service and distributed by the American Immigration Lawyers Association (AILA), the matter of legal inadmissibility was discussed in the context of Comprehensive Immigration Reform. The following is a direct quotation from the document published by the Congressional Research Service (CRS) and distributed by AILA:

Legislation aimed at comprehensive immigration reform may take a fresh look at the grounds for excluding foreign nationals that were enacted in the 1990s. All foreign nationals seeking visas must undergo admissibility reviews performed by U.S. Department of State (DOS) consular officers abroad. These reviews are intended to ensure that they are not ineligible for visas or admission under the grounds for inadmissibility spelled out in the INA. These criteria are: health related grounds; criminal history; security and terrorist concerns; public charge (e.g., indigence); seeking to work without proper labor certification; illegal entrants and immigration law violations; ineligible for citizenship; and, aliens previously removed. Over the past year, Congress incrementally revised the grounds for inadmissibility. Two laws enacted in the 110th Congress altered longstanding policies on exclusion of aliens due to membership in organizations deemed terrorist.

Terrorism has been a key concern for American government officials across the entire spectrum of agencies associated with Immigration and travel to the United States. Public health and safety are also significant issues for American Immigration and Consular Officers. To quote the aforementioned publication further:

The 110th Congress also revisited the health-related grounds of inadmissibility for those who were diagnosed with HIV/AIDS. More recently, the “H1N1 swine flu” outbreak focused the spotlight on inadmissibility screenings at the border. Questions about the public charge ground of inadmissibility arose in the context of Medicaid and the state Children’s Health Insurance Program (CHIP) in the 111th Congress.

Influenza has been concerning to many health officials in recent years. However, for many the removal of HIV/AIDS from the list of diseases which can result in a finding of inadmissibility was a relief as many individuals who were previously inadmissible to the USA may have immediately become admissible after HIV/AIDS was no longer a legal grounds for finding someone inadmissible to the USA. This issue was especially acute in the LGBT community as HIV and AIDS issues seem to have a disproportionate impact upon individuals and couples within that community. The report went on to note that issues pertaining to legal inadmissibility are likely to be discussed in the context of proposed Comprehensive Immigration Reform legislation:

While advocacy of sweeping changes to the grounds for inadmissibility has not emerged, proponents of comprehensive immigration reform might seek to ease a few of these provisions as part of the legislative proposals. The provision that makes an alien who is unlawfully present in the United States for longer than 180 days inadmissible, for example, might be waived as part of a legislative package that includes legalization provisions. Tightening up the grounds for inadmissibility, conversely, might be part of the legislative agenda among those who support more restrictive immigration reform policies.

Many people are found inadmissible to the United States every year. Among those found inadmissible are those who are unable to seek a remedy in the form of either an I-601 waiver or an I-212 waiver application for advance permission to reenter the USA. Individuals who have been found inadmissible and cannot seek a waiver are colloquially referred to as being unwaivably excluded from the United States. Bearing this in mind, many findings of legal inadmissibility can be remedied through use of a waiver. That said, the waiver process and the standard of proof for obtaining a waiver can be difficult to overcome. For this reason, many bi-national couples opt to utilize the services of an American immigration attorney to assist in matters related to United States Immigration. It is always prudent to ask for the credentials of anyone claiming expertise in United States Immigration law as only a licensed American attorney is permitted to provide advice, counsel, and representation in pending matters before the United States Citizenship and Immigration Service (USCIS), the Department of Homeland Security (DHS), and the American State Department.

For related information please see: US Visa Denial.

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