Pew Research Survey Indicates Increasing Support for Restrictions on Speech

In Williamson v. United States, 184 F.2d 280 (2d Cir. 1950) [PDF version], the Supreme Court Circuit Justice for the Second Circuit, Robert Jackson, wrote a decision deciding upon whether the defendants in the case should have their bail extended pending certiorari by the Supreme Court.[1] The defendants in the case were convicted in District Court of “conspiring to advocate and teach the violent overthrow of the United States Government and to organize the Communist Party for that purpose.” For this post though, I would like to highlight a poignant quote from Justice Jackson in his decision:

“But the very essence of constitutional freedom of press and of speech is to allow more liberty than the good citizen will take. The test of its vitality is whether we will suffer and protect much that we think false, mischievous and bad, both in taste and intent.”[2]

Justice Jackson, who is perhaps best known for being the chief prosecutor at the Nuremburg Trials, is also known as one of the most eloquent writers to sit on the Supreme Court. Justice Jackson brought his considerable talents to bear in the above passage, explaining clearly and persuasively what makes the freedom of press and speech in the United States so special. The framers did not create the First Amendment merely to protect popular speech, but also to protect unpopular speech. Justice Jackson articulates this principle brilliantly by tying the strength of our First Amendment protections not by how much popular speech it yields, but by how much unpopular speech we are willing to protect.

I thought of the above passage by Justice Jackson when I came across a survey by the Pew Research Center from November 2015 that was both interesting and disheartening [see survey].[3] According to the survey, 28% of all Americans favor censoring offensive statements about minority groups. While that is certainly 28% too high, it hardly in itself seems catastrophic. However, when we break down the survey, we find that there are foreboding trends for the future.

While 28% of all Americans support censoring offensive speech against minority groups, 40% of millennials (ages 18-34) support censoring offensive speech against protected classes. Among other groups that support censoring offensive speech in greater numbers than all Americans are women (33%), Democrats (35%), non-whites (38%), those with some college education but no degree (29%), and those who do not have more than a high school education (31%).

To juxtapose some of the statistics on the Pew Survey against Justice Jackson's incisive defense of constitutional liberty is to wonder where we are headed. Our Constitution does not only protect speech that we want to hear, but speech that we do not want to hear. As Justice Jackson explained, the “vitality” of our free speech protections is gleaned from the unsavory speech we protect. It need not be said that people of good will refrain from gratuitously offensive speech, but it apparently need be said that people of good reason should understand what protecting free speech necessarily entails.

In a recent blog post, I discussed some of the disturbing undercurrents of racism and antisemitism among certain Trump supporters [see blog]. Yet, one will find upon reading the blog that I at no point argued that the First Amendment should be modified or cast aside to protect the sensibilities of the people who these louts disparage or the sensibilities of good people (such as myself) who they offend. Rather, I practiced what I am confident is the best remedy to “offensive” speech: more speech.

I urge people who agree with the proposition that offensive speech toward protected classes should be suppressed to instead follow my example and counter speech that you find undesirable with speech of your own. Rather than try to infringe upon the rights of others with principles that may well be turned against you at a later date, have faith in the ideas you hold and present them in such a manner to persuade rather than to suppress.

John Adams once wrote in a letter to his wife:

“Posterity! You will never know how much it cost the present generation to preserve your freedom! I hope you will make good use of it. If you do not, I shall repent in Heaven that I ever took half the pains to preserve it.”

It is awe-inspiring to think of what people like Adams and those who have fought and died for America throughout her history have sacrificed so that we may have liberties such as the freedom of speech. We can only hope that younger people and others who believe that the First Amendment should be curtailed will come to a different understanding of liberty. That way, Adams will not have to repent for his efforts to preserve freedom for posterity.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. The Supreme Court ultimately decided the case in Dennis v. United States, 341 U.S. 494 (1951). The Court decided that the defendant's convictions did not violate the First Amendment. Justice Jackson wrote an opinion concurring in judgment.
2. Pointer courtesy of Eugene Volokh of the Volokh Conspiracy: E. Volokh, “A little-known quote from Justice Jackson, on free speech,” Volokh Conspiracy, (Aug 12. 2014), available at https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/12/a-little-known-quote-from-justice-jackson-on-free-speech/
3. J. Poushter, “40% of Millennials OK with limiting speech offensive to minorities,” Pew Research Center, (Nov. 20, 2015)

Lawyer website: http://myattorneyusa.com

New Series of Posts: Analyzing the Effect of Election Issues on Immigration

NEW SERIES OF POSTS: ELECTION ISSUES AND IMMIGRATION

Because immigration law and policy is created at the federal level, this November's Presidential and Congressional elections will have a dramatic effect on our immigration system going forward. Before venturing further, I will provide a brief overview of the ways that the people elected this November will be able to change our immigration laws and policies:

• Congress is responsible for writing the immigration statutes whereas the President is responsible for signing them into law or vetoing them;
• The Executive Branch, headed by the President, is responsible for executing the immigration statutes and promulgating regulations to that effect;
• The President, with the advice and consent of the Senate, appoints the heads of the Departments of Homeland Security, State, Justice (responsible for appointing immigration judges), and Labor, which all oversee different portions of our immigration laws; and
• The President, with the advice and consent of the Senate, appoints federal judges who adjudicate certain immigration issues over which they have jurisdiction.

It is no exaggeration to say that every aspect of our immigration system will be affected by the results of this November's federal elections. While many people look simply to who the President is, it is important to remember that there are many other moving parts to our immigration system. While the Executive Branch has broad authority over many immigration issues, the immigration statutes are still written by Congress. Furthermore example, two Presidents may have similar positions on immigration issues, but they would appoint different judges to the federal bench. In general, the President's appointments are very important, since no President micromanages the intricate workings of the various departments and agencies that execute our immigration laws. For this reason, the President's selections for key positions in the Departments of Homeland Security, State, Justice, and Labor will have a dramatic effect on the implementation of immigration laws (and Congress serves as a check on the President's appointments). For this reason, it's important to not ask only where the President stands on immigration issues, but also who he or she would appoint to serve in key posts entrusted with implementing and enforcing our immigration laws.

Due to the significance of federal office-holders on immigration law, I have decided to write one post per week through the November elections in which I will discuss an issue at play in the election from the immigration context. In so doing, I will explain the issue itself, where the Presidential candidates and parties stand on the issue based on the best information available, and what is at stake with regard to the issue in this November's elections. It is important for those of us who are deeply invested in immigration issues to understand how the federal government administers our immigration system and, consequently, the effects that our votes will have on our immigration laws and policies going forward.

Before the primaries started, I wrote a series of posts profiling the Republican and Democratic candidates; including the now-apparent nominees Donald Trump [see blog] and Hillary Clinton [see blog]. To read those posts, please see the see the main blog for the project [see blog]. I will write updated analysis of both Trump and Clinton as part of this series.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

The "Welcome Dayton" Program

AN IMMIGRANT FRIENDLY CITY IN OHIO?

On October 6, 2013, the New York Times published an article about Dayton's “Welcome Dayton” plan [see article].[1] The plan, passed by the Dayton City Council in 2011, created programs to both attract highly skilled immigrants to Dayton and make it easier for immigrants already in Dayton to contribute positively to the city's economy.

The Welcome Dayton Program is noteworthy because of Dayton's emphasis on seeing immigrants as allies in helping to revitalize the city. One success story discussed in the article involved 400 Turkish families, many of whom moved to Dayton from other cities, moving into and rehabilitating vacant and gutted houses.

As part of the initiative, city officials began working with local organizations to offer resources to immigrants such as:

• Adding interpreters for public offices;
• Adding foreign language books to libraries and arranging English classes;
• Worked with local groups to provide courses for immigrants interested in opening small businesses;
• Worked with Wright State University to help immigrant doctors and engineers gain certifications in order to practice in the United States.

However, other aspects of the program were not without controversy. The article notes that the Dayton police chief, Richard S. Biehl, ordered officers to not check the immigration status of “crime witnesses, victims, and people stopped for minor traffic violations or other low-level offenses.” While this was welcomed by many, some questioned whether Dayton had become a de facto “sanctuary city” for those present in the United States illegally. In response to these arguments, the Welcome Dayton Program Coordinator, Melissa Bertolo, stated that while Dayton is open and welcoming to immigrants, it is not a sanctuary city.[2]

MY THOUGHTS

The immigration debate has a tendency to focus only on levels of immigration enforcement and what to do with people who are in the United States illegally. To be sure, both of these points are important. I am unequivocally for securing the border and improving immigration enforcement as a prerequisite to broader immigration reform and an opponent of amnesty. However, it is also important that in this debate, we focus on bolstering our legal immigration system in ways that would not only help Dayton, but the country as a whole. Like Dayton, we should ask whether it is a waste that an immigrant doctor or engineer is not applying his or her valuable skills in the United States because of difficulty in navigating the bureaucracy for obtaining proper certification. More broadly, we should be developing proposals to reorient the immigration laws so that they focus more on increasing the immigration opportunities for highly skilled immigrants such as immigrant doctors and engineers who are eager to join American society and apply their skills for the betterment of cities like Dayton and the U.S. economy.

Without analyzing the every aspect of the specific implementation of the Welcome Dayton Program, it is refreshing in general to see a city think about highly skilled immigrants as allies in improving the economy rather than as foreigners who are stealing otherwise vacant American jobs and homes.

The program is still ongoing and can be found online at welcomedayton.org.

Please read my blog about the failure of our immigration system for dairy farmers to see another aspect of our immigration system that can be improved [see blog].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Preston, Julia, “Ailing Midwestern Cities Extend a Welcoming Hand to Immigrants,” nytimes.com, (Oct. 6, 2013), available at http://www.nytimes.com/2013/10/07/us/ailing-cities-extend-hand-to-immigrants.html
2. Bearishelle, Edmé, “Dayton has no plans to stop welcoming immigrants,” wdtn.com, (Jul. 9, 2015), available at http://wdtn.com/2015/07/09/dayton-has-no-plans-to-stop-welcoming-immigrants/

Lawyer website: http://myattorneyusa.com

Threats to the Pro-Israel Consensus in the New GOP, and What Must be Done to Preserve It

INTRODUCTION

Over the past 50 years, the Republican Party went from a mixed bag on support for Israel to an organization where support for Israel is the mainstream position. However, over the contentious Republican Primary, we have seen some disturbing signs that the Republican consensus on Israel is fraying at the margins. In this post, we will look at how the Republican Party became the preeminent pro-Israel Party, and what must be done to keep it that way.

THE GOP BECOMES THE PRO-ISRAEL PARTY

Those who only started following politics in recent years may be under the impression that the mainstream of the Republican Party has always been staunchly pro-Israel. However, as Tevi Troy explained in exhaustive detail in Commentary on December 1, 2015, the GOP's path to becoming a staunchly pro-Israel party was long and arduous [link].[1] It was as recent as January of 1993 that there was a Republican Secretary of State (under President George H.W. Bush), James Baker, who had exclaimed unabashedly, “F—- the Jews, they don't vote for us anyway.” In 1996, noted anti-Semite Patrick Buchanan carried four states en route to a second place finish in the Republican Presidential Primaries.

However, even with prominent GOP figures who were and are hostile to Israel, the trajectory of the Republican Party regarding Israel has been positive over time. President Richard Nixon, while certainly an anti-Semite in private, was a generally good President for Israeli interests during his tenure. The great Ronald Reagan unprecedented support for Israel during the 1980s, spurring a new generation of pro-Israel conservatives led in the 1990s by those such as then-Speaker Newt Gingrich in the U.S. House of Representatives. However, as Troy detailed in the following passage from his article, perhaps the most credit for the evolution of the GOP in its support for Israel should go to the administration of George W. Bush from 2001-2009:

“Bush gave [then-Prime Minister] Sharon the leeway he needed to defend Israeli lives. Former White House Press Secretary Ari Fleischer tells an instructive story in this regard. Following one Palestinian attack, Fleischer handed Bush what he called “typical” talking points that called for “both sides to refrain from violence.” Bush looked at the talking points and responded, “No, don't say that. Just say this: 'Israel has a right to defend itself.' ” According to Fleischer, Bush's preferred response “sent shock waves through the bureaucracy,” which was used to deliberately evasive, morally nebulous suggestions of “even-handedness.”“

President Bush's leadership on Israel-along with principled leaders in his administration such as Dick Cheney and Donald Rumsfeld-set a new tone on Israel for the Republican Party. Far from the dark days of James Baker's tenure as Secretary of State that ended just eight years before the younger Bush took the oath of office, support for Israel among prominent Republicans was suddenly the expectation. To be sure, there were notable exceptions such as Ron Paul in his two Presidential runs in 2008 and 2012, but by in large a new generation of GOP leaders rendered Baker, Buchanan, and prominent figures in the so-called paleoconservative movement anachronisms of a bygone era. During the Obama Administration, leading Republicans could always be counted on in words and (usually) deeds to oppose President Obama's and John Kerry's appeasement of the enemies of America and Israel and their uncommon hostility toward the governments headed by Prime Minister Benjamin Netanyahu. As Troy reports in the end of his article, “80 percent [of self-identified Republicans] now tell pollsters they support the Jewish state.”

STORM CLOUDS ON THE HORIZON

While Troy's argument illustrates a triumph in the evolution of the Republican Party toward a posture that is unambiguously pro-Israel, there were already storm clouds on the horizon at the time of its publication in December calling into question whether Lady Macbeth was correct when she said “what's done cannot be undone.”

The heavy majority of candidates in the Republican Presidential Primaries were unambiguously pro-Israel. In my series of Candidate Profiles [see blog], I seldom found reason to be wary of a candidate's support for Israel. In fact, the candidates who ultimately finished second and third in delegates, Senators Ted Cruz and Marco Rubio respectively, staked out positions in support of Israel that often went beyond even those taken by the second Bush administration.

Yet, these candidates were swept away by the now presumptive-Republican nominee, Donald Trump. As I will detail, there are reasons in terms of policy to be concerned about the effects of a potential Trump administration with regard to Israel. However, regardless of whether the next President is Trump or the likely Democratic nominee, Hillary Clinton, the orange wind that swept through the GOP has unearthed a geyser of anti-Semitism and unbridled hostility toward Israel that one could have been forgiven for thinking was buried when Pat Buchanan-who has unfortunately returned to some notoriety with his enthusiastic endorsement of Trump-faded into a place somewhere betwixt an irrelevancy and forgotten. Let us examine each of these issues closely and then assess what comes next for the GOP with regard to Israel-policy.

RED FLAGS: TRUMP'S SHIFTY POSITIONS ON ISRAEL

For this post, my primary focus will be on the disgusting vitriol from many of Trump's core-supporters toward the Jewish people and the Jewish state. However, it is important to take note of some of the problematic aspects of Trump's positions-insofar as they can be discerned-with regard to his positions on Israel.

First, Trump has demonstrated alarming ignorance of world affairs, foreign policy, and the role of executive. He is the presumptive nominee who seemed unsure of what thenuclear triad is in a nationally televised debate, slandered personally George W. Bush and his entire administration by parroting leftist conspiracy theories about 9/11 and the lead-up to the Iraq War, and insisted in a debate that he would order the men and women of America's armed services to commit war crimes. He chose as the venue for his ballyhooed major foreign policy speech The Center for the National Interest, a think-tank that is known only slightly more for its support for Vladimir Putin than its thinly-veiled hostility toward Israel.

With regard to Israel specifically, Trump has been (at best) hesitant to call for the termination of President Obama's ill-fated Iran Deal, instead focusing on his concern that John Kerry simply did not strike a good enough “deal.” Perhaps most disturbing, Trump has repeatedly called for the Israelis and the Palestinians to be treated “equally” in negotiations, a position that has been taken at times by the likes of the European Union and the Obama Administration. Trump states that a “deal” would be his “toughest deal,” implicitly comparing it to real estate transactions…. For these positions, he was pilloried with good cause by Senators Ted Cruz and Marco Rubio in multiple GOP debates (and even by Clinton for “neutrality”). In his speech on Israel before AIPAC, he referred to “Palestine” as a “state” on multiple occasions, for which he was again lampooned by Cruz.

If Trump becomes the 45th President of the United States, we can only hope that he surrounds himself with advisers who understand the importance of American support for Israel. Despite his ignorance of world affairs and Israel's situation in the Middle East, with the Republican Party mostly at his disposal, he will have no shortage of effective thinkers on the issue to choose from if he so desires. Nevertheless, it can only be seen as a great loss that bold thinkers on foreign policy who stand unequivocally with Israel-such as Senators Cruz and Rubio and the former Governor of Florida Jeb Bush-were passed over for someone for whom there are more questions than answers regarding his posture toward Israel and the greater region.

THE DARK UNDERBELLY OF TRUMP'S SUPPORT

Whether Trump wins or loses, there are reasons to hope that U.S. policy toward its closest ally will improve relative to the last seven years. However, Trump's rise, win or lose, will leave an indelible mark on the GOP. One trend that has been getting notice as of late is the prevalence of unsavory supporters among his ranks whom he and his team have often been slow to denounce. Some of these incidents have been high-profile, such as was Trump's decision to play coy when asked about receiving the endorsement of David Duke-noted white supremacist and former Grand Wizard of the Ku Klux Klan. There are also figures such as Ann Coulter, whose support Trump has welcomed even after she complained about the candidates in one of the early GOP debates allegedly pandering to “f—-ing Jews” by expressing solidarity with Israel.

But more troubling perhaps is what appears to be the bubbling anti-Semitism among Trump supporters online. Numerous writers who have been critical of Trump have been subjected to anti-Semitic vitriol through emails, social networking, and even from certain allegedly conservative outlets. Regardless of the outcome of 2016, the dregs of Trump's supporters may well be a long-term problem for the GOP.

Besides the return of the Buchananite paleoconservatives, a new movement colloquially called the alt-right has come to the fore. The alt-right is vocally pro-Trump in large part because of his perceived willingness to violate social taboos and challenge political correctness. While I agree that excessive political correctness-in context-is a serious problem, the alt-right veils its racism and anti-Semitism in its opposition to political correctness, and viciously denouncing in often racial and/or anti-Semetic terms, any who dare make the distinction between excessive political correctness and basic civility and human decency.

One of the most vocal about the problem has been conservative writer Ben Shapiro, formerly of Breitbart (now one of the largest outlets for the alt-right) before he resigned due to their handling of Trump coverage, and now of the Daily Wire. In April, Shapiro chronicled anti-Semitic and otherwise abusive Tweets he got from Trump supporters (and likely some Trump-bots) in response inflammatory Tweets such as pitching his article “Why I'd Vote Cruz On Super Tuesday” [link].[2] Shapiro expanded on his thoughts on May 18 on the National Review Online [link].[3] Shapiro, while noting that the majority of Trump's supporters are not anti-Semitic, argues compellingly that “Trump's nomination has drawn anti-Semites from the woodwork.” Stating that Trump himself is not an anti-Semite (also noting that his eldest daughter is a convert to Judaism), Shapiro does argue that Trump has been “happy to channel the support of anti-Semites to his own ends.” For example, Shapiro cites the vicious anti-Semitic response from Trump fans that journalist Julia Ioffe received on Twitter for a not-entirely-favorable profile of Trump's wife in GQ. In response to the virulent abuse that Ioffe was subjected to, Trump demurred claiming to not know what happened and having no message for his “fans” while his wife blamed Ioffe for provoking her abusers.

Shapiro's former employer, Breitbart, recently ran a headline attacking Weekly Standard editor Bill Kristol, who has been publicly recruiting an alternative to Trump and Clinton, a “renegade Jew.” To be sure, the column itself criticized Kristol was by David Horowitz-most definitely not either anti-Semitic or anti-Israel-for not supporting Trump in what Horowitz passionately believes is the best for Israel. Right or wrong, that is a position that can be argued among reasonable people. However, Breitbart'sheadline was as deliberately bizarre as it was provocative, and it was far from the first instance (see Breitbart's attacks on Shapiro) where the publication has whistled to the conspiratorial anti-Semitic sensibilities of the so-called alt-right.

BEYOND TRUMP

Beyond Trump, there are two recent incidents I would like to highlight as unbecoming of leaders in the party that prides itself on standing with Israel.

First, Eli Lake of Bloomberg reported that the Charles Koch Institute, funded by well-known (and anti-Trump) conservative donors Charles and David Koch, hosted Stephen Walt and John Mearsheimer, known for their 2006 anti-Israel polemic The Israel Lobby.[4] If that was not enough, Lake notes that Mearsheimer spoke at a Code Pink conference in 2011. While Walt and Mearsheimer are free to spread their slander wherever they are invited, it seems to me to be a poor look for the Koch Institute to give them a platform without, at the very least, a dissenting view being offered at the same event.

Second, Nahal Toosi of Politico reported on James Baker being invited before Congress to testify before Congress about “Examining America's Role in the World.”[5] By Politico's account, many of the questions directed to Baker, including by Marco Rubio, were implicitly asking for his perspective on some of Trump's more outlandish foreign policy pronouncements. However, noting Baker's baggage, I would ask why the Senate Foreign Relations committee-run by Republicans at least until January of 2017-would seek out the expertise of Baker of all people. Certainly there are experienced foreign policy figures-even other former Republican Secretaries of State-who could be called upon and who have not made a career of parroting anti-Semitic tropes and slandering Israel. There must come a point where a career-long track record in vileness at least makes the Senate consider calling less objectionable foreign policy “experts.”

CONCLUSION: THE FUTURE OF THE GOP REGARDING ISRAEL

The transformation of the GOP with regard to Israel over the past 50 years has been one of the great accomplishments of the Party in the modern era. However, it is important to remember that the GOP did not marginalize anti-Semites and those otherwise hostile to Israel through silence and acquiescence. Rather, it was through the bold and courageous leadership of figures such as Reagan, Cheney, G.W. Bush, and today of Rubio, Cruz, and others. Regardless of the small army of Trump-backing online trolls and anti-Semites, the vast majority of the Republican Party and the American people stand with Israel. But we cannot take this position for granted. It is crucial for America's political leaders-especially those in the GOP which prides itself on standing with Israel-to denounce garden variety anti-Semitism and the cloak and dagger cult of anti-Zionism. That is the duty of elected Republicans across the country. It would be a boon to the future of the party if the presumptive Presidential nominee showed the same vigor in challenging the savageness of a vocal minority of his supporters as he did in endeavoring to link Ted Cruz's father to the Kennedy assassination.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Troy, Tevi, “How the GOP Went Zionist,” Commentary, (Dec. 1, 2015),available at https://www.commentarymagazine.com/articles/gop-went-zionist/
2. Shapiro, Ben, “The Anti-Semites Are Out In Force For Trump,” The Daily Wire,(Mar. 1, 2016), available at http://www.dailywire.com/news/3783/anti-semites-are-out-force-trump-ben-shapiro
3. Shapiro, Ben, “Donald Trump's Anti-Semetic Supporters,” National Review Online, (May 1, 2016), available at http://www.nationalreview.com/article/435527/anti-semitism-donald-trump-right-nationalism-white-supremacism
4. Lake, Eli, “Koch Brothers Give a Megaphone to the Anti-Israel Fringe,” (May 17, 2016), available at http://www.bloomberg.com/view/articles/2016-05-17/koch-brothers-give-a-megaphone-to-the-anti-israel-fringe
5. Toosi, Nahal, “Rubio enlists James Baker to knock Trump,” (May 12, 2016),available at http://www.politico.com/story/2016/05/marco-rubio-james-baker-donald-trump-223142

Lawyer website: http://myattorneyusa.com

LGBT Immigration

The United States was once hostile toward LGBT immigration.  However, laws and immigration policies of the United States have changed to make it generally welcoming to LGBT immigrants.  Nevertheless, there are still difficulties particular to LGBT immigrants.  In this article, we will review certain provisions of immigration law that touch on LGBT immigrants.

Asylum and Refugee Protection

LGBT individuals may qualify for asylum under U.S. immigration laws.  Longstanding precedent allows for LGBT individuals to demonstrate standing in a particular social group for which they have faced persecution or face a reasonable fear of persecution in their home countries.[1]  It has been held that membership in a particular social group may be demonstrated by showing that an individual was perceived to be LGBT even if he or she was actually not.[2] Otherwise, an LGBT asylum applicant will have to demonstrate to the satisfaction of immigration officers that he or she is an LGBT individual.[3]

Same-Sex Marriage

Now that same-sex marriage is legal throughout the United States, USCIS will treat same-sex marriages with aliens the same as it would aliens in heterosexual marriages.  However, it is important to note that the marriage must be valid in the place where the marriage was celebrated for it to qualify for immigration purposes.

Adoption by Same-Sex Couples

Longstanding precedent allows same-sex couples to adopt foreign-born children and accord them with status under the relevant provisions of the INA.

Document Issuance for Transgender Individuals

An alien who has changed his or her gender may obtain documentation from USCIS reflecting the new gender.  An alien who is seeking such documentation must submit medical certification of the change of gender, evidence that any name change was completed under applicable law, and possibly evidence of identity in the new gender.  Proof of sex reassignment surgery is not required or requested.[4] 

Immigration Detention

LGBT individuals often face great risks on account of their identities when placed in immigration detention.  The ICE detention standards address protocols designed to protect LGBT individuals from facing harm while in immigration detention.[5] It is crucial for detainees to be aware of their rights to be kept safe while in detention and to consult with immigration counsel and/or an organization dedicated to helping such individuals in their interactions with the immigration system.

The issues that we discuss in this article are generally complex immigration matters for which consulting with immigration counsel is recommended for anyone.  Despite the U.S. immigration system’s being welcoming to LGBT individuals; such individuals may face unique challenges in procuring immigration protection and/or benefits.  This is especially true in the context of asylum applications and immigration detention.  LGBT individuals are well-advised to consult with experienced immigration counsel.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. See Matter of Toboso-Alonso, 20 I&N Dec. 819 (BIA 1990)
2. See e.g., Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003)
3. USCIS RAIO Directorate, “Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims,” (Dec. 28, 2011)
4. USCIS PM-602-0061 (Apr. 10, 2012)
5. See “2011 Operations Manual ICE Performance-Based National Detention Standards,” (Modified in Feb. 2013)

Resources and Materials:

Alexander J. Segal - "LGBT Asylum in the USA"

Lawyer website: http://myattorneyusa.com

Our Articles on Recent BIA Precedent Decisions

The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting immigration laws.  Although most of the Board’s decisions are not for precedent, the Board periodically releases what are called precedent decisions.  A precedent decision is binding on the Department of Homeland Security (DHS) and Immigration Judges, unless overturned by the Attorney General or federal court. In most of our articles, you will find many references to BIA precedent decisions.

Because of the importance of BIA precedent decisions, we are committed to writing about them regularly.  In fact, we now have articles discussing every BIA precedent decision issued in 2016 (through June 2, 2016).  In this post, I will provide a list of recent BIA precedent decisions that we have covered here at myattorneyusa.com with a brief description of the BIA’s holding and a link to our article for each case.  If you are interested in a specific BIA decision, please use our website’s search feature to see if we have discussed it in our growing collection of articles and blog posts about immigration law.

• The Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) [see article]

Decided:  November 23, 2015  

The Board held that it is inappropriate to apply the requirements in the Federal Rules of Evidence with respect to the admission of expert testimony to a respondent’s testimony regarding events of which he or she has personal knowledge.  Furthermore, the Board held that it may remand to a different Immigration Judge if the conduct of an Immigration Judge can be perceived as bullying or hostile.

• The Matter of Castro-Lopez, 26 I&N Dec. 693 (BIA 2015) [see article]

Decided:  December 2, 2015

The Board held that 10 years of continuous physical presence required for special rule cancellation removal under NACARA [see article] should be measured from the alien’s most recently incurred ground of removal (at least where the ground is listed in 8 C.F.R. 1240.66(c)(1), which references INA 212(a)(2)).

• The Matter of Cavillo-Garcia, 26 I&N Dec. 697 (BIA 2015) [see article]

Decided:  December 9, 2015

The Board held that a term of confinement in a substance abuse treatment facility imposed as a condition of probation (under a Texas state statute) constitutes a “term of confinement” under INA 101(a)(48)(B) for purpose of determining if an offense is an immigration aggravated felony [see article] for a crime of violence under INA 101(a)(43)(F) [see section].

• The Matter of Mendoza-Osorio, 26 I&N Dec. 703 (BIA 2016) [see article]

Decided:  February 9, 2016

The offense of endangering the welfare of a child under a New York state statute, which requires knowingly acting in a matter likely to be injurious to the physical, mental, or moral welfare of a child, is categorically [see article] an offense covered by INA 237(a)(2)(E)(i) for a “crime of child abuse, child neglect, or child abandonment.”

• The Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016) [see article]

Decided:  February 24, 2016

The Board held that for a state offense to qualify as a crime of violence under 18 U.S.C. 16, the state statute must require as an element the use, attempted use, or threatened use of physical force.  The Board then held that a Puerto Rico statute for aggravated battery was not categorically a crime of violence under 18 U.S.C. 16 because it could be committed by means that do not involve the use of violent physical force.

• The Matter of Villalobos, 26 I&N Dec. 719 (BIA 2016)

Decided:  March 10, 2016

The Board held that Immigration Judges and the BIA have jurisdiction to determine whether an alien was eligible for a previous adjustment of status under INA 245A(b) for purposes of assessing an alien’s removability and eligibility for relief from removal.  It also held that an alien seeking to apply permanent residence through the legalization provisions of section INA 245A must establish admissibility at the time of the initial application for temporary residency and again when applying for adjustment of status to permanent resident status under INA 245A(b)(1).  Finally, the Board held that an alien who was inadmissible when he or she adjusted status from temporary resident to permanent resident under INA 245(a)(b)(1) was not lawfully admitted for permanent residence.

• The Matter of Adeniye, 26 I&N Dec. 726 (BIA 2016) (as amended) [see article]

Decided as amended:  May 2, 2016  

The Board held that an offense relating to failure to appear is an immigration aggravated felony under INA 101(a)(43)(Q) [see section] if a sentence of at least 5 years’ imprisonment could have been imposed for the underlying offense (regardless of whether it was imposed).

• The Matter of Ruzku, 26 I&N Dec. 731 (BIA 2016) [see article]

Decided:  March 29, 2016

The Board held that the United States Citizenship and Immigration Services (USCIS) should accept sibling-to-sibling DNA test results reflecting a 99.5 percent degree of certainty or higher that a full sibling biological relationship exists, and that such evidence should be considered probative evidence of the sibling relationship.

• The Matter of Garza-Oliveras, 26 I&N Dec. 736 (BIA 2016) [see article]

Decided:  May 5, 2016

The Board held that when determining if an offense falls under the immigration aggravated felony provision found in INA 101(a)(43)(T) [see section], the categorical approach should be used to determine whether the offense was for failure to appear before a court, but the circumstance-specific approach should be used to determine if the underlying offense was under a court order to answer or dispose of a charge of felony for which a sentence of 2 years’ imprisonment or more may be imposed.

• The Matter of Gonzalez-Romo, 26 I&N Dec. 743 (BIA 2016) [see article]

Decided:  May 19, 2016

The Board held that within the jurisdiction of the Ninth Circuit [1],  a permanent resident who has a felony conviction for solicitation to possess marijuana for sale is inadmissible under INA 212(a)(2)(A)(i)(I) as an alien who committed a crime of moral turpitude even though INA 212(a)(2)(A)(i)(I) refers only to attempt and conspiracy to commit a crime of moral turpitude.

Please see our related article on the immigration aggravated felony for trafficking in controlled substances [see article].

• The Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016) [see article]

The Matter of H. Estrada dealt with two distinct issues, so we broke the case into three articles (an introduction and one article covering each of the issues).

First, the Board held that when determining whether a conviction is for a crime of domestic violence under INA 237(a)(2)(E)(i), the circumstance-specific approach should be applied to determine the domestic nature of the offense [see article].

Second, the Board held that a clarification order issued by the sentencing judge to correct an obvious discrepancy in the original sentencing order should be given effect in determining whether a respondent was sentenced to a term of imprisonment of at least one year [see article].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. See my blog about the vast extent of the jurisdiction of the Ninth Circuit.

Resources and Materials:

https://www.justice.gov/eoir/precedent-decisions-volume-26

Lawyer website: http://myattorneyusa.com

Overview of LGBTI Asylum

Under current U.S. immigration law, LGBTI aliens may seek asylum in the United States.

In order to establish eligibility for asylum, a homosexual, bisexual, transgender, or intersexed alien must establish that he or she is the member of a “particular social group,” on the basis of which he or she either was persecuted or faces a reasonable fear of persecution in his or her home country.  The Board of Immigration Appeals (BIA) established in the Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990) that homosexual asylum applicants can establish membership in a “particular social group” based on sexual orientation for purpose of seeking asylum in the United States.

In order for an LGBTI alien to establish membership in a particular social group (for purpose of applying for asylum on the basis of persecution in one of those categories), the asylum applicant must generally demonstrate, to the satisfaction of USCIS, that he or she is in fact gay, lesbian, bisexual, transgender, or intersexed.  However, the Third Circuit has held that an alien may also demonstrate membership in a particular social group if he or she faced persecution or faces a reasonable fear of persecution on the basis of being perceived as being a homosexual in his or her home country.

If an LGBTI asylum applicant is able to demonstrate both that he or she is in a particular social group and that he or she was either persecuted or faces a reasonable fear of persecution on the basis of membership in that particular social group in his or her home country, the applicant will still be required to meet all of the other requirements for asylum eligibility.  For example, such an asylum applicant will be required to demonstrate that the conditions in his or her home country are hostile to members of his or her particular social group.  LGBTI asylum applicants are also subject to the generally applicable bars to applying for asylum and bars to eligibility for asylum.

In order to file an asylum application, one must file the Form I-589 with the appropriate USCIS processing center within one year of arriving in the United States.  Any asylum applicant should retain immigration counsel for assistance through the asylum application process, and there are many attorneys who are willing to take on certain asylum cases pro bono.  In addition, LGBTI individuals seeking asylum in the United States may seek assistance from one of the various nonprofit organizations specifically geared toward helping such individuals gain immigration protections.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J. Segal - "LGBT Asylum in the USA"

Article “Sexual Orientation”

Lawyer website: http://myattorneyusa.com

USCIS Announces Filipino World War II Veterans Parole Program Policy

On May 9, 2016, the United States Citizenship and Immigration Services (USCIS) announced the implementation of the Filipino World War II Veterans Parole Program (FWVP) policy effective June 8, 2016. The FWVP will allow the beneficiaries of approved family-based immigrant visa petitions filed by a qualified Filipino WWII veteran (or surviving spouse) to apply for parole while they wait for an immigrant visa number to become available. To learn the background and details of the program, please see our full article [see article]. In this post, I will explain the reasons why USCIS implemented the program and why I think it is an appropriate exercise of the Attorney General's statutory parole authority.

WHY USCIS CREATED THE FWVP

USCIS laid out its reasoning for creating the FWVP policy in a Federal Register notice announcing the program [see 81 FR 28097].

Firstly, the Federal Register notice observed that “more than 260,000 Filipino soldiers enlisted to fight for the United States during World War II.”[1] The notice noted that “[e]stimates indicate that as many as 26,000 of these brave individuals became U.S. citizens.” It estimated that approximately 2,000-6,000 Filipino WWII veterans are alive in the United States today.

Secondly, USCIS recognized that the beneficiaries of approved family-based immigrant visa petitions from the Philippines often face extremely long wait-times before an immigrant visa number becomes available. For example, the chart [see here] shows the Application Final Action Dates for family-sponsored preference cases for Filipino applicants from the June 2016 Visa Bulletin [see Bulletin].

FAMILY-SPONSORED - PHILIPPINES

• F1 — December 22, 2004
• F2A — November 8, 2014
• F2B — June 1, 2005
• F3 — February 1, 1994
• F4 — December 1, 1992

With the exception of the F2A category, the wait times for immigrant visa numbers for Filipinos with approved family-based petitions are extensive.

Accordingly, we can see why USCIS decided to implement the FWVP:

1. In recognition of the brave service rendered to the United States by Filipino WWII veterans.
2. In recognition of the fact that the few surviving Filipino WWII veterans in the United States are now elderly and may wish to have their family by their side in the United States in their old age.
3. In recognition of the scarcity of immigrant visa numbers for family-based applicants from the Philippines.

MY THOUGHTS ON THE FWVP

It has been well-documented on this blog that I have often disagreed with some of the immigration initiatives forwarded by the current administration over the past couple of years [see my blog on the DAPA litigation]. However, I think the FWVP is an example of a well-reasoned and lawful immigration policy.

The FWVP policy is a fair exercise of the Attorney General's discretionary parole authority under section 212(d)(5)(A) of the Immigration and Nationality Act (INA), which provides for the discretionary grant of parole, on a case-by-case basis, where the Attorney General finds either that there are urgent humanitarian concerns or that the grant of parole would serve a significant public benefit. To be sure, it would be hard to argue against USCIS's contention that allowing for parole to be considered on a case-by-case basis for family members of elderly WWII veterans who fought bravely for this country does not serve a significant public benefit. Furthermore, in cases where the veteran is infirmed or lacking other family in the United States, USCIS plausibly argues that parole may also satisfy an urgent humanitarian concern.

The FWVP policy is a welcome initiative for a small number of elderly Filipino WWII veterans still alive in the United States and their family members who may be eligible to benefit. At the Law Offices of Grinberg & Segal, PLLC, we stand ready to assist those who may stand to benefit from the program.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. From 1934-1946, the Philippines was a U.S. commonwealth that was transitioning to full independence (including the period from 1942-1945 when the Philippines was under Japanese occupation).

Lawyer website: http://myattorneyusa.com