LGBT Immigration Issues Bryon M Large Senior Associate

LGBT Immigration Issues Bryon M. Large, Senior Associate Attorney Kolko & Associates, P. C. (303) 371 -1822 BL@kolkoassociates. com

What is a “marriage? ” A Marriage is a Marriage Not a Civil Union What about Common Law Marriage?

Bad Law (Pre-Windsor) Defense of Marriage Act (Section 3 of DOMA) 1 U. S. C. 7 Adams v. Howerton, 673 F. 2 d 1036 (9 th Cir 1982) 9 th Circuit case regarding a Colorado marriage

Good Law (Post-DOMA) United States v. Windsor, 570 U. S. __ (2013)

Immigration Benefits Immigrant Visas Fiancée Benefits Dependent Children (Step-Children) Non-Immigrant Benefits in Removal Proceedings

Documenting Same-Sex relationships Special Issues in Documenting Relationships Lack of Prior Year Tax Returns Less frequently will have children born to the marital union “Coming out” issues may mean that there are less people to write affidavits Less contact with extended family Employers

Special concerns with adjudications New area for adjudicators too! Combating fraud suspicion and allegations Sham marriages Past marriages

Defensive Benefits – Removal Proceedings Family-based Relief Benefits for Vulnerable Populations Humanitarian Defensive Options Refugees Asylum Withholding of Removal Protection under the Convention Against Torture Must show that it is more likely than not that the respondent would be tortured upon return to their home country

Strategies in Removal Proceedings Marriage Visa Petition for Adjustment of Status or Consular Processing Cancellation of Removal (INA § 240 A(b) relief) Review how LGBT issue (and possible HIV) affect hardship arguments

Benefits for Vulnerable Populations Asylum Requires a fear of persecution Special Immigrant Juvenile Status (SIJS) T Visa status for victims of human trafficking U Visa status for victims of certain crimes Victim must have cooperated with law enforcement Law enforcement agency (LEA) or judge must certify that Applicant was a victim and helpful to investigation and prosecution Violence Against Women Act (“VAWA”)

Case Law

Matter of Acosta 19 I&N Dec. 211 (BIA 1985) Persecution on account of membership in a particular social group refers to persecution that is directed toward an individual who is a member of a group of persons, all of whom share a common, immutable characteristic A characteristic that is either beyond the power of the individual members of the group to change, or A characteristic that is so fundamental to their identities or consciences that it ought not be required to be changed

Matter of Toboso-Alfonso 20 I&N Dec. 819 (BIA 1990) Homosexual individuals are a member of a particular social group Certified by Attorney General Janet Reno in 1994 Gay man from Cuba Immigration Judge found homosexuality to be an immutable characteristic INS argued that it was “socially deviated behavior”

Hernandez Montiel vs. INS 225 F. 3 d 1084 (9 th Cir. 2000) Gay men with female sexual identities constitute a particular social group

Karouni v. Gonzales 399 F. 3 d 1163 (9 th Cir. 2005) No distinction between homosexual acts and homosexual status INS essentially argued that it was the acts that caused the persecution The Court essentially ruled that to require the applicant to cease sexual activity would be to force him “to change a fundamental aspect of his human identity. ”

Matter of S-E-G 24 I&N Dec. 579 (BIA 2008) Neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities nor the family members of such Salvadoran youth constitute a “particular social group. ” Membership in a purported social group requires that the group have particular and well-defined boundaries, and that it possess a recognized level of social visibility

Matter of M-E-V-G-; Matter of W-G-R 26 I&N Dec. 227 (BIA 2014); 26 I&N Dec. 208 (BIA 2014) Social Visibility does not necessarily mean “ocular” visibility, and is renamed “social distinction” Requirements for a Particular Social Group: Share a common and immutable characteristic Defined with particularity Socially distinct within the society in question

Document Issues

USCIS Policy Document Issuance for Transgender Individuals Documents may be issued reflecting post-transition gender Requirements: Amended birth certificate, passport, or court order Medical Certification from a licensed physician Based on standards and recommendations of the World Professional Association for Transgender Health (WPATH) Must be an M. D. or a D. O. Proof of sex reassignment surgery is not required Name Change Per state or foreign law