Disclaimer: The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.
Powers Law Group, P.C.
- (713) 589-2085
- Powers Law Group, P.C.
5225 Katy Freeway, Suite 300
Houston, Texas 77007
- Monday-Friday 8:30AM-5:30PM CST
Call us today for a consultation with the attorney in English or Spanish.
In Febuary 2011, President Obama declared that the Department of Justice would no longer be defending the Defense of Marriage Act (DOMA) in certain Courts of Appeals. This radical stance change has had a profound effect on undocumented aliens and foreign nationals in the LGBT community. However, due to certain legal realities, the DoJ has had to continue with its defense of DOMA in certain parts of the country.
Prior to February 2011, the government had a very clear position on DOMA, namely that they would defend the law at all costs. They used several rationales to justify their defense of the law: Congress passed it and thus the DoJ must uphold the laws of the land; the president had instructed the executive branch (which the DoJ is a central part of) that they must continue to enforce it until DOMA is repealed; that marriage is about having children and that gay couples do not make good parents. Some arguments were stronger than others.
After February 2011 the DoJ’s position changed drastically. The DoJ effectively admitted that DOMA is unconstitutional by stating that “DOMA is not just an immigration issue; any law that targets people based on their sexual orientation is unconstitutional.” While this statement may suggest that the DoJ will be taking the same simple, clear-cut approach that they took in defending DOMA (but now in reverse) the reality is anything but simple.
The President’s statement of DOMA’s unconstitutionality does nothing to keep the DoJ from defending it in a Court of Appeals circuit. These nine circuits are grounded in federal law but each circuit sets its own precedents. When it comes to the particular defense of DOMA, the DoJ has used “Rational Basis” to defend it. Thus, if a circuit allows “Rational Basis” to be used in the defense of DOMA, then the DoJ must defend the law in those courts. If the circuit has set no precedent, or has stated that Rational Basis may not be used to defend the law, then the DoJ is not obligated to defend it.
Rational basis review is the most deferential standard of review that federal courts use to evaluate the constitutionality of legislation when challenged on due process or equal protection grounds; however, just because a law discriminates does not mean that certain “discrimination” is unconstitutional. For example, US lawful permanent residents are not allowed to vote-a clearly discriminatory law that has never been challenged as unconstitutional (although it should; permanent residents pay taxes like everyone else and should have a right to elect their officials).
This lack of accord among the CA circuits has not only put the DoJ and the DHS in the unenviable position of having to, in some circuits, defend a law that has been declared unconstitutional, but has also made life for undocumented LGBT aliens and LGBT foreign nationals in valid status that much more complicated. However, the DHS does have one thing working for them in the form of Prosecutorial Discretion. Prosecutorial Discretion allows the DHS to decline to detain and deport an alien that it decides is not a dangerous threat to the United States. The DHS has made clear that its enforcement priorities are national security, public safety, border security and repeat immigration law violators. Since foreign nationals in same same-sex couples rarely fall into any of those categories, they may qualify for prosecutorial discretion.
As it stands, the DoJ does not seem too eager to prosecute same-sex couples, but it is bound by law to continue to enforce DOMA. Until DOMA is repealed or deemed unconstitutional, or there is a change in executive policy, this situation will continue as is.
The reeling housing market has come to this: To shore it up, two Senators are preparing to introduce a bipartisan bill Thursday that would give residence visas to foreigners who spend at least $500,000 to buy houses in the U.S. more
2nd Saturday (10m-12:30pm) or Thursday (7-9pm) each month at Tracy Gee Community Center, Houston, TX. Ongoing events from the group, American Border Patrol as seen in “Border Invasion Pics.” There are several home videos taken on the US/Mexico border. According to the website, “All activity shown… is a result of citizen volunteer effort. Detection is by citizen, and where apprehension takes place it is by citizen guidance of Border Patrol agents. More and more citizens are doing a job our government won’t do.”
Local and state officials are pleading with immigrant families to keep their children enrolled. The law does not ban anyone from school, they say, and neither students nor parents will be arrested for trying to get an education…The Obama administration filed court documents Friday announcing its plans to appeal the ruling that upheld the law…
This is all very interesting. In a practical way, this could affect US immigration. If this law passes, I would assume that US Immigration/Foreign Affairs Manual would not allow immigration visas to be dependent on these 2-year marriages.
Ruby L. Powers
US immigration attorney
I-601 waiver attorney
The Mexican Pilot Program provides a process for the rapid adjucation of waiver applications by USCIS. The process can be broken down into four distinct steps:
The process begins at the IV consular interview when an alien is deemed inadmissible on awaivable ground by a consular official. The applicant can then schedule a waiver appointment by calling the Call Center.
2. Waiver Appointment
At the waiver appointment, the consular official handling the case will pass the waiver to the adjudicating USCIS officer in the neighboring room. The USCIS officer will then make a 5-minute review and conduct immediate judgment on the waiver. If the USCIS officer approves the waiver, then the file is returned to the consular official and the official then grants the immigrant visa either in approximately 1-3 weeks. If the officer determines that the waiver is not clearly approvable it is referred to the original adjudication process.
3. Original Process
If the applicant has been referred to the original adjudicating process, then the applicant must wait until the USCIS office has reviewed their file. Due to a backlog, this review can take up to a year. The USCIS officer in charge of reviewing their file will either approve their waiver or deny it. If approved, the waiver is sent to the consular office where the official will grant the immigrant visa in approximately1-3 weeks. If denied, the applicant can either appeal to the Administrative Appeals Office (AAO) or apply again with new evidence and circumstances.***
4. AAO – Administrative Appeals Office
If the applicant is denied and chooses to appeal, they are presented with two options. They may either choose to appeal directly to the AAO, in which case the consular office will give one final review of the file before sending it to the AAO, or they may request that the case be reopened and the decision reconsidered by the consular office. In the case of the former, if the AAO denies their appeal, then the applicant must submit a new waiver and restart the process to receive further consideration. In the case of the latter, the consular office will give a final verdict on the file with no further referral or adjucation. As with the AAO option, if the applicant is denied then they must restart the process to receive further consideration. If the applicant is approved through either one of the options then the immigrat visa is granted.
*** The Law Office of Ruby L. Powers has assisted several waiver denials in which the client either: 1. hired a ‘notario,’ 2. filed the waiver application themselves, or 3. hired another immigration attorney, and Firm was able to get the waiver approved on the second try.
In the decade since the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) were created in the wake of 9/11/01, senior officials in these agencies have repeatedly asserted that their primary enforcement mission was to deport terrorists, persons who threatened the national security and serious criminals from the United States.
An examination of millions of case-by-case government records about the day-to-day actions of the DHS and ICE, however, has determined that these frequent claims — made by senior executives under both President Bush and President Obama — are misleading.
The contrast between the official pronouncements and actual achievements of the government during the last twenty years has been documented in an analysis by the Transactional Records Access Clearinghouse (TRAC) of case-by-case records of all deportation proceedings initiated by ICE, and its predecessor agency (the Immigration and Naturalization Service, or INS), in the Immigration Courts.
The data — current through July 26, 2011 — were obtained by TRAC under the Freedom of Information Act from the Executive Office for Immigration Review (EOIR) which maintains these official immigration court records.