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Immigration Law

Excerpts From the Sept. 1, 2013, Bender’s Immigration Bulletin

Administration Issues Additional Guidance Following Supreme Court’s DOMA Ruling

The State Department and Department of Homeland Security issued further guidance in August on the implementation of the Supreme Court’s ruling in United States v. Windsor, 133 S. Ct. 2675, 2013 U.S. LEXIS 4291 [enhanced opinion available to subscribers], which struck down Section 3 of the Defense of Marriage Act.

In an FAQ released on August 2, the State Department said that U.S. embassies and consulates will immediately begin processing applications based on same-sex marriages, including for stepchildren acquired through such marriages, in the same manner as those for spouses of opposite genders. The FAQ also said that U.S. citizens engaged to same-sex partners can obtain K visas for their fiancé(e)s. The FAQ, reprinted at Appendix A, noted, however, that civil unions and domestic partnership are not akin to marriages for immigration purposes.

A State Department cable, also issued August 2, 2013, stated that same-sex spouses and their children may obtain derivative nonimmigrant visas in categories for which such visas are available, including diplomat (A), treaty trader/investor (E), international organization employee (G), temporary worker (H), intracompany transferee (L), extraordinary ability (O), entertainer and athlete (P), religious worker (R), and North American Free Trade Agreement (TN). The cable also stated that same-sex spouses of diversity visa recipients in fiscal 2013 and 2014 should not be automatically disqualified if they were not listed in the initial entry, since they were not recognized as spouses at the time of entry. The cable is reprinted at Appendix B. In addition, the Foreign Affairs Manual was amended at 9 FAM 40.1 n.1.1. Previously, subsection (a) of note 1.1 had reiterated the DOMA definition. By Change Transmittal VISA-2011, dated August 2, 2013, subsection (a) was deleted and former subsections (b), (c), and (d) were redesignated (a), (b), and (c).

On August 5, 2013, notice was sent from U.S. Immigration and Customs Enforcement (ICE) to all SEVIS users stating that designated school officials should recognize any same-sex marriage that is recognized in the place of celebration. After verifying the marriage, designated school officials should then issue Form I-20, Certificate of Eligibility for Nonimmigrant Status, to same-sex spouses of any F-1 or M-1 nonimmigrant seeking admission as an F-2 or M-2 dependent. The notice is reprinted at Appendix C.

California Supreme Court Loosens Requirements to Withdraw Pleas Carrying Negative Immigration Consequences

On August 8, 2013, the California Supreme Court issued a decision that may facilitate noncitizens’ ability to withdraw prior guilty pleas if they were not properly advised of potential negative immigration consequences.

The decision in People v. Martinez, 2013 Cal. LEXIS 6647 (Aug. 8, 2013) [enhanced version], concerned Section 1016.5 of the California Penal Code, which requires trial courts to advise a defendant prior to accepting a guilty plea that a conviction could result in his or her removal, exclusion, or ineligibility for naturalization if he or she is not a U.S. citizen.

If the advisement was not given, a defendant may move to withdraw the plea if the conviction could result in adverse immigration consequences and it was reasonably probable that he or she would not have otherwise pleaded guilty.

In the Martinez decision, the California Supreme Court held that trial courts should look to what the particular defendant would have done if properly advised, regardless of whether he or she would have obtained a more favorable outcome by going to trial.

A “defendant‘s decision to accept or reject a plea bargain can be profoundly influenced by the knowledge, or lack of knowledge, that a conviction in accordance with the plea will have immigration consequences,” Justice Kathryn Werdegar wrote for a unanimous court. “[A] court ruling on a section 1016.5 motion may not deny relief simply by finding it not reasonably probable the defendant by rejecting the plea would have obtained a more favorable outcome.”

Sara E. Coppin represented the defendant-appellant under appointment by the Supreme Court. The Law Offices of J.T. Philipsborn, John T. Philipsborn; California Supreme Court Clinic at UC Davis School of Law, and Aimee Feinberg for California Attorneys for Criminal Justice served as amicus curiae on behalf of the defendant-appellant. The Law Offices of Michael K. Mehr and Michael K. Mehr for the Immigrant Legal Resources Center and Asian Law Caucus also served as amicus curiae on behalf of defendant-appellant

Orleans Parish Sheriff Issues New Guidance on Immigration Detainers

On June 21, 2013, the Orleans Parish Sheriff’s Office issued new guidance on the circumstances in which it will honor federal immigration “detainers,” or requests from DHS to temporarily hold arrestees after they would otherwise be released from state or local custody.

Under the new policy, the sheriff’s office will honor only detainers lodged against individuals charged with first or second-degree murder, aggravated rape, aggravated kidnapping, treason, or armed robbery with a firearm.

ICE agents are forbidden from interviewing an inmate about his or her civil immigration status prior to his or her first court appearance, and may not conduct any interview relating to a criminal immigration investigation without notifying and providing the subject’s attorney an opportunity to be present.

The new policy comes more than two years after the filing of a federal lawsuit on behalf of arrestees who were held on immigration detainers for more than 90 and 160 days, respectively. Cacho v. Gusman, Civ. No. 11-225 (E.D. La. 2011). In May, the New Orleans City Council directed the parish sheriff to draft new guidelines governing immigration detainers. The guidance is reprinted at Appendix D.

USCIS Asylum Division Issues Memos on Credible Fear, Unaccompanied Alien Children

Ted Kim, acting chief of the USCIS asylum division, issued three memos in recent months on procedures relating to credible fear interviews and the handling of asylum applications from unaccompanied alien children.

In a June 14, 2013, memo, Kim set forth procedures to be followed in cases where no language interpreter is available for a credible fear interview. If an interview cannot be scheduled within forty-eight hours, Asylum Pre-Screening Officers are to place the subject in standard removal proceedings under Section 240 of the Immigration and Nationality Act. Officers must also prepare a memo explaining why a credible fear determination was not made and why the applicant received a Notice to Appear. The memo is reprinted at Appendix E.

In an April 11, 2013, memo, Kim expanded the use of a credible fear determination checklist to all jurisdictions in the country. Launched through a pilot program in January, the checklist replaced the requirement that an officer conducting a credible fear interview compose a brief written assessment. The checklist is designed to document each step in the credible fear analysis undertaken to complete Form I-870, and emphasizes that an alien possesses credible fear where there is a “significant possibility” of persecution in the home country. The memo is reprinted at Appendix F.

In a June 4, 2013, memo, Kim revised procedures regarding asylum applications from unaccompanied alien children. Effective June 10, asylum offices must adopt a prior determination by ICE or CBP that an asylum applicant is an unaccompanied alien child, unless those agencies or HHS reversed such a finding before the application was filed. Also effective June 10, the Nebraska Service Center must accept asylum applications from unaccompanied alien children in removal proceedings if the date on the Form I-589 indicates the applicant is under eighteen; the applicant submits a copy of a “UAC Instruction Sheet”; or the applicant submits documentation showing he or she was in HHS custody as an unaccompanied alien child. The memo is reprinted at Appendix G.

Bender's Immigration Bulletin

[This is an excerpt from the Sept. 1, 2013, issue of Bender's Immigration Bulletin.]

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