Publications

May, 2011

SAME SEX MARRIAGE, REPRIEVE OF DEPORTATION

At a deportation hearing of a Venezuelan man, married to an American man, the Venezuelan was granted a Stay by an Immigration Judge in Newark just last week because the Obama Administration had raised the issue of the unconstitutionality of the Defense of Marriage Act.  This Federal Act specifically does not recognize same sex marriages in various States such as Connecticut that grant marriage certificates to same sex couples. 

To date the Administration has not issued any regulations to enable same sex married couples to be accepted by the Federal Government and especially by the Immigration Service.  The Attorney General is now considering how a gay U.S. citizen may be enabled to petition for his/her gay partner and be recognized by the Immigration Services.  The Attorney General’s exploratory study of the Defense of Marriage Act’s Constitutionality and the Judge’s postponement of deportation for the same sex married alien indicate a promising development for gay immigrants.  Due to the opposition of conservatives who regard any deviation from the Defense of Marriage Act to be indefensible, the issue has not yet been resolved.  However the Obama Administration has indicated that it may finally be ready to fight to change it.

Denial Notice from immigration, what do you do?

After a petition or application is submitted to Immigration, and you have waited for months, maybe even years and then you get a Denial.  What can you do?

The first thing you do is study the contents of the Denial Notice.  Is it possible the Immigration erred?  Are there any inconsistencies on the part of the Immigration Service?  Did the denial say you have the right to appeal or make a Motion to Reopen and/or Reconsider?

You should call a lawyer if you do not already have one.   The lawyer should probably study the Denial to see if the denial is consistent with your application.  For example, our office submitted an application for a client who wished to self-petition to make his provisional residence permanent.  The Immigration Service rejected the self-petition because the Immigration said our client has failed to enclose a divorce which was required.  The Service afforded us the opportunity to reply.  We sent a copy of the foreign divorce which we had already sent with the self-petition to change provisional residence to permanent residence.  However, this time, to be sure the Immigration Service understood, we explained that this was a foreign divorce and the wife had even signed a receipt for the service of process on her.  The divorce was procured in Pakistan, the couple had been married in Pakistan and they were both Pakistani nationals so the Court in Pakistan had jurisdiction.  We enclosed a Memo of Law from a Pakistani lawyer indicating this divorce complied with Pakistani law.  The Immigration Service within one month later approved the permanent residence of our client. 

We have had cases where the Immigration Service denied for failure to respond to a request for evidence or because our client untimely failed to respond to a request for information.  We have appealed such denials because the Immigration Service mailed the request for information to the wrong address although prior to the denial we had advised Immigration of a change of address or we have been able to show that in fact we had answered the inquiry but Immigration had been late in putting our answer in our client’s file.  It is very important to study these denials and correct these mistakes of the Immigration as promptly as possible. 

If the denial came because your lawyer believes the Immigration Service has misinterpreted the facts of the case or because of a mistake in its interpretation of the law, then it is vital for the lawyer to explain by a Brief or a Memo of Law showing how exactly according to the facts the law should have been interpreted, and how exactly you are entitled to overcome this denial.

Lastly, depending on your case, an Appeal may be appropriate or a Motion to Reopen or Reconsider.  Perhaps because your case may have been pursued as an L-1 (intra-company transferee) or an E-2 (treaty investor) and the application being reviewed might indicate that another classification may be more appropriate such as an O-1 (outstanding business person), then it may be a waste of time and money to pursue the L-1 or E-2 and you should change your strategy by filing for an O-1.  Of course after a proper consultation with a lawyer, it may be also decided that you cannot win the case and you may wish to consider your other options.

If you need help or advise, call us at 212-944-9420.

Our assistance is only a phone call, or e-mail communication away!

New York Immigration Lawyers > Immigration Publications > May 2011