"New Immigration Law" - Not So Fast!

I thought I needed to write about the subject of the “new immigration law” as, in my opinion, it is rather important to make this point. As the Senate voted yesterday in favor of the Immigration Reform bill proposed in April by the bipartisan group of eight senators, I see substantial increase in questions about the “new immigration law” and rules. These questions inundate blogs like AVVO and LawQA. They also appear often here on My Attorney USA. Finally, I get numerous emails with the same questions expressing optimism and talking about the Bill as if it was already the law of the land. It is not.

The fact that the immigration reform proposal passed in the Senate is an important step in the direction of actually getting to the new immigration law that makes sense. The Senate passage of the Bill is, however, a baby step in right direction at best. I do support most of the Senate Bill, and I do hope that positive changes to this Nation's immigration system, like point-based immigration, would come and soon. Such system would make much more sense than, for instance, the DV program, which does not work for many, while creating huge wave of aggravation each year.

At the same time, the inflated optimism expressed by some on the blogs including some of my esteemed colleagues is out of context. Today's article in the conservative web publication the Newsmax “GOP Senators Predict Quick Death for Senate Immigration Bill in the House” is a good illustration of this point. I recommend overly optimistic individuals to read the article. It is rather informative. In essence, for the Bill to become law of the land, it must pass the House of Representative and then be reconciled on a congressional conference. If and once that process is over, we will see the final version of the bill, which the President would have to sign into law. I am sure, the final version of the Bill will be nothing like its Senate version. Many of the good provisions will be eliminated or replaced with much more restrictive versions, which would water down the Bill substantially.

Here are but some of the quotes from that article that make the point:

“Sponsors of this legislation, despite the array of financial, establishment, and special-interest support, failed to hit their target of 70 votes,” said Sen. Jeff Sessions, the Alabama Republican who has long railed against the bill. “The more people learned about the bill, the more uneasy they became.”

“Failure to reach 70 votes is significant, and ensures the House has plenty of space to chart an opposite course and reject this fatally flawed proposal,” Sessions said. “It is a broken promise, 1,200 pages long.”

“This is a bill led by Democrats,” Kentucky Sen. Rand Paul declared on Fox News. “There will be a bill proposed for immigration reform led by Republicans in the House, and I'm hoping that's something that I can get behind.”

“I think I made it clear that if we're going to do this the right way, there ought to be a majority of Democrats and a majority of Republicans in favor of it,” the Ohio Republican said, ABC News reports. Sen. David Vitter of Louisiana agreed. “This has no momentum at all in the House,” he said of the Senate legislation.

Sen. John Thune of South Dakota, chairman of the Senate Republican Conference, said any reform legislation needs provisions to “reduce the wait-time and simplify the process for those entering the country legally.
“Unfortunately, instead of proving to the American public that Congress is serious about border security and enforcing the laws already on the books, the final Senate bill gives weak promises on border security, leaving many aspects of implementation to the discretion of the Homeland Security Secretary,” Thune said. “Simply put, the Senate immigration bill is legalization first and empty promises of border security second,” he added.

The article underlies the major problem with the Bill. It does not have enough bipartisan support in the House to pass unchanged and its changed version, if that one even passes, might me much less favorable to immigrants and immigration causes.

The article can be found here: “GOP Senators predict quick death for Senate Immigration Bill in House”

Source: newsmax.com, foxnews.com

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

Article 3 of DOMA is Unconstitutional

“Marriage” and “Spouse” Will Continue To Be Defined by State and not Federal Law.

This Wednesday, June 26, 2013, in a truly historic and dramatic 5-4 decision UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL, with Justice Anthony Kennedy not only voting with the majority but actually delivering the decision of the United States Supreme Court, the Court overturned the §3 of the federal Defense of Marriage Act (DOMA) as unconstitutional. The Court upheld the underlying decision by the U.S. District Court for the Southern District of New York that ordered the IRS to accord the plaintiff eligibility for the surviving spouse exception from estate tax under the United States Tax Code.

The Congress of the Unites States legislated DOMA and then President Clinton later signed it into the law in September of 1996. As it turned out, §3 of DOMA proved to be one of the most sweeping exercises of the Federal legislative power aimed at discriminating against a very distinct group of people — same sex couples who wanted their union to be publically acknowledged, celebrated and afforded same rights as the heterosexual unions — be recognized as marriage.

The way DOMA effectuated this sweeping discrimination was by amending the Dictionary Act-a law which mandates Federal Government and its numerous bureaucracies “to define “marriage” and “spouse”” for over 1,000 federal laws and the whole realm of federal regulations-in a way that excluded same-sex partners.”

As Huffington Post eloquently put it: “The federal government's refusal to recognize legal same-sex marriages has imposed a “stigma,” enshrined a “separate status” into law and “humiliates” a group of people — and that is unconstitutional, concluded Justice Anthony Kennedy, writing for the majority of Supreme Court justices on Wednesday in their historic decision striking down the 1996 Defense of Marriage Act.”

In Windsor, the Court recognized the underlying controversy and high emotions surrounding the definition of marriage. The Court noted that when DOMA was enacted in September of 1996, no state at the time had yet recognized marriage to include same sex partners. The Court recognized that although marriage and domestic relations had traditionally been viewed as falling almost exclusively into the realm of the legislative and regulatory powers of several states, Federal Government could, in some limited circumstances, regulate some aspects of the domestic relations. The Court cites Social Security regulations allowing the acknowledgement of the common law marriages as marriages for purposes of eligibility for federal benefits as an example of such proper interference regardless of how a particular state treats common law marriage.

The Court further acknowledged that marriage has been traditionally perceived as a union between one man and one woman by our cultures and traditions and that new laws of the 11 States so far, which expended definition of marriage in their respective jurisdictions to include same-sex partners presented rather new development in the area of domestic relations. The Court acknowledged that the issue was very emotional for all the parties involved on both sides of the argument. The Court concluded that it had the power to decide the case on the merits of the dispute, despite the Executive Branch's decision not to defend constitutionality of DOMA. The Court notied the agreement of the Executive Branch with Ms. Windsor, the plaintiff, that Article 3 of DOMA was indeed unconstitutional, but found that continious enforsement of the law the Esecutive Branch continued to undertake, preserved sufficient state of the Federal Government in the outcome the case to give the Court power and reason to rule on its merrits. The Court concluded that both constitutional and prudential requirements were satisfied in this case for the Court to have jurisdiction to hear and decide so. Justice Kennedy, writing for the Court, emphasizes that the Court's refusal to rule on the merrits of this case would leave the judicial branch without precedent in this area and would have very serious adverse effect on many underlying lower court decisions currently awaiting precedential guidance. The majority of the Court concluded that thus refusing to decide this case on the merits would have disadvantaged large number of people whose matters greatly depended on the outcome of this case.

On the merits of the case the Court concluded that both Equal Protection and Due Process guarantees of the Fifth Amendment of the United States Constitution indeed afforded same sex unions the same rights heterosexual unions enjoyed under the law and that for these reasons §3 of DOMA's definition of marriage as a union between one man and one woman was unconstitutional.

In further development, Janet Napolitano, The Secretary of the Department of Homeland Security (DHS) in a press release, welcomed the decision and promised that DHS would implement the decision including in this Nation's immigration system to recognize marriages between same-sex couples for purposes of the Immigration and Nationality Act (INA) and accorded by INA variety of Federal Immigration benefits to make them avalaible to same-sex spouses.

The fight, however, is not yet over. This decision came of the highly devided Court. Three different descending opinions were filed with the Chief Justice Roberts and Justices Scalia, Thomas and Alito expressing various points of dissent. Justice Scalia in his dissenting opinion in which Justices Clarence Thomas and Chief Justice John Roberts joined, called this essentially gay marriage endorsing decision a “jaw dropping assertion of judicial supremacy over the people's representatives in Congress and the executive.” Justice Scalia pronounced that “[t]oday's opinion aggrandizes the power of the court to pronounce the law,” predicting that such action of the Court would have diminished the “power of our people to govern themselves.” In the view of many as pointed out by the Newsmax in its recent article, “the court's action goes well beyond merely rejecting a federal definition of marriage.” Justice Scalia seems to agree: “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this court's declaration that there is 'no legitimate purpose' served by such a law, and will claim that the traditional definition has the purpose and effect to disparage and to injure the 'personhood and dignity' of same-sex couples. The result will be a judicial distortion of our society's debate over marriage — a debate that can seem in need of our clumsy 'help' only to a member of this institution.” Justice Scalia's opinion underlines the truth of the fact that the fight in this arena will continue for years to come and Windsor while very important and historical decision, is by no means is the final stop in this journey and will, indeed, have to withstand the challenge of time.

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

INA Sec. 214 (b) Based Refusals of Nonimmigrant Visa Are not Equivalent to Inadmissibility

There is a recurring confusion over the implications of section 214(b) and 212(a) of the Immigration and Nationality Act. Both sections, although similar in their outcome-precluding entry into the U.S.-apply to different circumstances. A refusal under section 212(a) is comprehensive in nature because it precludes this individual's entry into the United States unless such inadmissibility is overcome. Once an applicant is refused under 212(a) of the Immigration and Nationality Act, the applicant is deemed “inadmissible”. This means that the applicant has been denied entry into the U.S. This section applies to both immigrant and non-immigrant applicants. This denial of entry can only be overcome by the passage of time for whcih the entry is precluded, when such restriction is temporary or a waiver of inadmissibility prior to the passage of time or when the restriction is permanent as is the case, for instance, under INA Sec.212(a)(6(C)(i) with inadmissibility for fraud and/or misrepresentation.

Conversely, section 214(b) of the Immigrant and Nationality Act deals with the denial of entry into the U.S. as a non-immigrant. This section, however, is trickier in its application. Unless classified as a non-immigrant in any of the provisions of the Act, all applicants are presumed to be immigrant until deemed otherwise by the consular officer. Unfortunately, this leaves much room for confusion and discretion, leaving the possibility of a non-immigrant applicant getting refused for failure to proactively and properly identify him/herself as a non-immigrant. There is also a danger that the consular officer can deny non-immigrant visas for spiteful reasons. Consequently, a non-immigrant can be classified as an immigrant before the consular officer, and therefore not eligible for non-immigrant visas under section 214(b).

Furthermore, there is also the issue of understanding a refusal under section 214(b) and outright inadmissibility under the Immigration and Nationality Act. It is important for applicants, consular officers and attorneys to discern the difference. A refusal under the section 214(b) does not necessarily imply a refusal under section 212(a). Nonetheless, a refusal under section 212(a) may, in fact, entail a refusal under section 214(b) as well. For example, an applicant who wishes to seek entry into the U.S. from a foreign country under a non-immigrant visa may be denied entry for failing to provide sufficient evidence of ties to his/her home country. So, can the applicant still receive legitimate entry in to the U.S.? Possibly. The applicant may be eligible for a visa as under immigrant status. It is up to the applicant to make sure they seek appropriate counsel.

On the bright side, there is ongoing review of the statutes and provisions that relate to these matters under the Immigration and Nationality Act. For example, there is a stronger emphasis on the manner in which consular officers determine eligibility for immigrants and non-immigrants alike under these provisions. It is important for applicants to proactively seek eligibility under the appropriate provision and if unsure seek appropriate legal 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.

Lawyer website: http://myattorneyusa.com

U.S. Supreme Court Strikes Down DOMA

The U.S. Supreme Court issued a landmark ruling for LGBT rights today by striking down the Defense of Marriage Act's (DOMA) provision prohibiting the federal government from recognizing same-sex marriages as unconstutional. The U.S. Supreme Court's decision in United States v. Windsor can found here. The decision concluded DOMA amounted to the “deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” The decision found “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others” and that DOMA was unconstitutional, because there was no legitimate purpose for disparaging those whom states “sought to protect in personhood and dignity.”

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