The End of the Defense of Marriage Act and Immigration: Emerging Opportunities for Same-Sex Couples

“DOMA” is Dead

On June 26, 2013, the United States Supreme Court held Section 3 of the Defense of Marriage Act (“DOMA”) to be unconstitutional. Section 3 limited the federal definition of marriage to include opposite-sex couples only. Because immigration law is governed largely by federal law, DOMA therefore prevented married same-sex couples from obtaining green cards. Since the exclusion of same-sex couples from the federal definition of marriage is now unconstitutional, a U.S. citizen may file a green card petition for his or her same-sex, foreign-born spouse, and such a petition can no longer be denied solely because the couple is gay.

Same-Sex Couples Interested in Marriage-Based Green Cards Can Move Forward Confidently

While it will presumably take the United States Citizenship & Immigration Services some months to draft official guidance directing its employees to start adjudicating marriage-based green card petitions filed by same-sex couples, there is no reason in this author’s mind for such couples to wait any longer. The Secretary of Homeland Security, Janet Napolitano, already issued a statement confirming that the Department of Homeland Security is “working with our federal partners, including the Department of Justice, [to] implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.” And it has been reported that a New York City Immigration Judge, only hours after the Supreme Court’s DOMA decision was handed down, halted the removal proceedings of a married gay man.

Of course, same-sex couples moving though the green card process will face the same level of scrutiny faced by opposite-sex couples (if not even more scrutiny from some officers) and should be prepared to document their relationship with extensive evidence. But with such evidence in hand, same-sex, married couples seeking the benefits of permanent residency — the right to work, the right to travel, and most importantly, the right not to be removed from the United States — should move forward with confidence.

A historic occasion indeed!


Deferred Action for DREAMERS: All Aboard

As discussed on my blog previously, as of the date of this post (August 14, 2012) the Obama administration has begun accepting applications for Deferred Action status for certain non-U.S. citizens who came to the United States under the age of 16.  Those that qualify will be granted work authorization and a temporary promise not to be removed from the United States (but NOT a green card!)  Dreamers will then have to re-apply in two years time.  The application forms (I-821D, I-765 and I-765WS) can be accessed here, here and here.  The application fee is $465.00.

Who Qualifies and What Proof Must I Submit?

Outlined below are the requirements for qualifying for Deferred Action, some additional explanation and suggested documents to submit as proof:

1. Came to the United States under the age of sixteen.

(Submit copies of passport, birth certificate, I-94 Card, school records, medical records)

2. Continuously resided in the United States for at least five years as of June 15, 2012, and were present in the United States on June 15, 2012.

(The government wants to see that applicants resided in the United States for the five years preceding President Obama’s announcement: 6/15/2007-6/15/2012.  Be creative — taxes, utility bills, school records, a lease, medical records, etc.  The more the better –pile it on.  Note that short trips outside the United States should not be a problem although extended travel outside the United States might disrupt “continuous residence.”  Those with concerns about their travel history should consult with an attorney before applying.) 

3.  Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of Deferred Action with USCIS.

(This is a confusing way to say the government also wants proof of residency AFTER Obama’s announcement, until the date of application.  See #2 above, for suggested proof.)

4. Graduated from high school or are currently in school, obtained a GED, or have been honorably discharged from the Coast Guard or Armed Forces of the United States.

(Submit school records–report cards, diplomas, transcripts, or evidence of military service)

5. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety.

(Anyone with criminal convictions, or arrests, should consult an attorney before applying for Deferred Action status.  Of note, the Obama Administration has stated that it will consider juvenile (a/k/a “youthful offender”) convictions on a “case-by-case” basis — meaning some  applicants who committed crimes at an early age could be denied Deferred Action, despite the traditional view that crimes committed by minors are not “convictions” for immigration law purposes.)

6. Are under 31 as of June 15, 2012

(Passport, birth certificate)

7. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012.

(In other words, one cannot be in lawful status–as a student, for example, and apply for Deferred Action.)

Concerns Remain

As I discussed months ago, legitimate concerns exist regarding whether information submitted by Dreamers will be accessible by different agencies within the government.  Moreover, no one can say what will happen to the program if President Obama is not re-elected.  In response to the first of these concerns, the Obama Administration has tried to assure the public that in most cases, information submitted by Dreamers will not be shared with Immigration & Customs Enforcement (ICE).  One can only take the Administration at its word for now.  As for what might happen if there is a Romney Presidency, one can only speculate.


This is obviously an exciting time for many young people in the United States who have been waiting years for a chance to gain some sort of “status.”  That excitement should be balanced with a realistic view towards what Deferred Action status actually is, and isn’t.

Please do not hesitate to contact my office by phone (212 901-3799) or email ( with any questions about the Deferred Action application process.

Why A Broad State Schedule Of Controlled Substances Matters To The Client In Removal Proceedings

Many practitioners handling cases at the intersection of immigration and criminal law understand the basic principle that for a state controlled substance conviction to lead to a person’s removability, the controlled substance at issue must also be located on the federal drug schedules.[1]

At an elementary level, this means that if New York decided to include Twinkies as a controlled substance, and Client X was then convicted in New York for possession of Twinkies, Client X could not be removed from the United States unless Twinkies was also listed as a controlled substance on the federal schedules.[2]

In this scenario the New York state schedule would be deemed broader than the federal, and, importantly, it could not be argued that a New York controlled substance conviction categorically establishes removability.

Instead, in such a situation a court would apply the modified categorical approach and the Immigration Judge would search the record of conviction to identify the controlled substance at issue.

How could a state drug schedule that is broader than the federal schedule be helpful to someone in removal proceedings? For one, it is not uncommon for DHS, especially with older,

For one, it is not uncommon for DHS, especially with older, misdemenamor convictions, to fail to produce documents (or sufficiently reliable documents which surface during administrative processing) that identify the particular substance a client was convicted of possessing or trafficking. Where DHS fails to do so in a state with a drug schedule that is broader than the federal schedule, a motion to terminate is appropriate:

First, DHS loses in arguing the state controlled substance conviction categorically establishes removability; second, DHS loses under the modified categorical approach, because it has failed to produce evidence identifying the actual substance at issue. [3]

This principle may have been overlooked in New York for a number of years. A recent comparison of the New York and federal drug schedules performed by my office reveals at least one controlled substance that is located on the New York, but not the federal schedules: the steroid chorionic gonadotropin. (For you baseball fans, this is the substance Manny Ramirez was banned fifty games for using while a member of the Los Angeles Dodgers.)

In a motion to terminate recently filed by my office before Immigration Judge Alice Segal, Judge Segal accepted the fact that the New York definition of “controlled substance” included chorionic gonadotropin, a substance not located on the federal schedule, and that therefore a New York conviction for Possession of a Controlled Substance in the Seventh Degree (NYPL § 220.03) could not categorically establish removability.[4]

New York practitioners should take note of the distinction between the State and federal controlled substance schedules and push the distinction aggressively when appropriate. And practitioners from all states should take the time to compare their state schedules with the federal equivalent. Doing so can be laborious, but can produce surprisingly helpful results.

______________________________________________________________ Footnotes

1 INA § 237(a)(2)(B)(i).

2The federal controlled substance schedules are located at 21 C.F.R. §§ 1308.11-15; the corresponding New York schedules are listed at Section 3306 of the New York State Public Health Laws (on Westlaw, “NY CLS Pub Health § 3306”).

3See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965) (terminating removal proceedings where record was silent as to the narcotic involved in alien’s California conviction, as it could not be said for immigration purposes that Paulus had been convicted of a law relating to a narcotic as defined on the federal schedule); Matter of Spaulding, 2004 WL 2943545 (BIA Nov. 2, 2004) (unpublished) (reversing Immigration Judge and terminating proceedings where, at time of conviction, two substances were listed in the Connecticut but not the federal controlled substance schedules, and it could not otherwise be determined what substance respondent was convicted of possessing); see also Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076-79 (9th Cir. 2007) (terminating case where California schedule listed narcotics not listed on federal equivalent and record of conviction was inconclusive as to the identity of the narcotic).

4 IJ Segal postponed for future oral argument whether the New York “misdemeanor complaint” submitted by DHS was sufficient to establish the identity of the controlled substance. See generally Thomas v. Att’y Gen., 625 F.3d 124 (3d Cir. 2010) (discussing the evidentiary limitations of New York misdemeanor complaints)

Obama’s DREAM ACT Announcement: Buyer Beware

On June 15, 2012, President Obama announced that his administration will soon begin to grant benefits to certain individuals who may have qualified for relief under the never-passed DREAM Act.  Those that qualify will be granted work authorization and a temporary promise not to be removed from the United States.  An Immigration & Customs Enforcement (“ICE”) Memorandum explaining the announcement and providing a fairly detailed set of questions and answers can be read HERE.

(UPDATE: On July 19, 2012, the Obama Administration indicated that applications for DREAM benefits will begin to be accepted on August 15, 2012)

Who Qualifies?

As of the date of this post, the Obama Administration has explained that qualifying individuals will have:

1. Come to the United States under the age of sixteen.

2. Continuously resided in the United States for a least five years as of June 15, 2012, and were present in the United States on June 15, 2012.

3. Graduated from high school or are currently in school, obtained a GED, or have been honorably discharged from the Coast Guard or Armed Forces of the United States.

4. Not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety.

5. Are under 31 as of June 15, 2012.

“Buyer Beware”

For those DREAMERS currently in removal proceedings, President Obama’s announcement is unquestionably a game-changer —  a possibility of a temporary, and even a long-term reprieve from the prospect of being removed from the United States.

Other DREAMERS not currently in removal proceedings are also understandably excited about the prospect of being able to remain in this country and work legally.  But, “buyer beware.”  DREAMERS must temper their excitement with the following “fine print”:

(1) President Obama’s announcement does not create a path to a green card or citizenship.

(2) Even where deferred action is granted, DREAMERS must re-apply every two years.

(3) President Obama’s policy could be reversed this November by a Republican President, or, anytime in the future for that matter.

Therefore, DREAMERS not in removal proceedings must balance their need for work authorization with the risk of announcing their presence to the United States government.  This should be a carefully considered decision.  Any attorney advising a DREAMER concerning DREAM ACT relief MUST advise the client of the potential risks involved with filing for benefits or he is failing to perform his ethical duty to properly advise.

Finally, while on the point of unscrupulous attorneys, as of the date of this blog post, no specific instructions have been published by the Obama Administration detailing how DREAMERS can file applications for benefits.  Any lawyer (or non-lawyer) advising DREAMERS they can submit applications now should not be trusted.





“Secure Communities” to Increase Immigration Detention: But Don’t Assume that Detention is “Mandatory”

What is “Secure Communities?”

Have you heard? The Obama Administration announced that its Secure Communities Program would be implemented in New York City beginning this week.  Under the program, which has already been implemented in other jurisdictions across the country, the fingerprints of anyone booked by local or state police will be checked in Department of Homeland Security databases to determine, among other things, the immigration status and criminal history of the offender.  Based on the results of a search, DHS officials have the power to ask police to hold the person until he is picked up and detained by federal agents.

Secure Communities provides the Department of Homeland Security with a powerful tool by which it may detain and place non-U.S. citizens in removal proceedings for criminal violations that may have occurred years, if not decades ago.  While immigration  and administrative processing officials have sought to mitigate criticism of the program by assuring the public that it is “decrease[ing] [the] detentions of illegal immigrants stopped for speeding or driving without a license”, the message Secure Communities sends to all green card holders and nonimmigrants alike is clear: be careful.

What can I do if a client, friend, or family member is placed in immigration detention?

It is inevitable that Secure Communities will lead to the detention of a significant number of non-U.S. citizens in New York City who have old criminal records.  And, following clear Board of Immigration Appeals precedent, DHS trial attorneys will argue, and Immigration Judges will hold that the law requires that such “criminal aliens” be detained – without the opportunity for release following a bond hearing – until immigration proceedings are resolved, no matter how old the criminal act.

Don’t buy this argument – skip immigration court and go to federal court.  Many federal district courts across the country, including those in New York and New Jersey, have rejected the position that a “criminal alien” should be subject to mandatory detention when the non-U.S. citizen is picked up and detained by DHS years after the criminal conviction for which he now finds himself “removable.”

If your client, or someone you know or love, has been detained as a result of a criminal conviction from years ago, don’t accept mandatory detention as inevitable – it isn’t.  Find an immigration attorney experienced at obtaining the release from “mandatory” detention in federal court.  Release from immigration detention is a critical first step in resolving a criminal immigration case favorably.