Copland and Brenner

Table of Contents

1. Uniting American Families Act: Addressing Inequality in U.S. Immigration Law
2. In Brief: Recent Developments

1. Uniting American Families Act: Addressing Inequality in U.S. Immigration Law

   On June 3, 2009, the Senate Committee on the Judiciary conducted a hearing on The Uniting American Families Act. The subject of the hearing was proposed legislation introduced on February 12, 2009 by Senator Patrick Leahy (D-VT). If enacted as written, the bill (designated as S. 424) would provide persons in “permanent partnerships” the same U.S. immigration benefits as those granted to female-male married couples. A companion bill, H.R. 1024, was introduced by Congressman Jerrold Nadler (D-NY) in the House of Representatives that same day.

   S. 424 proposes to amend the Immigration and Nationality Act by defining a “permanent partner” as an individual 18 or older who: (1) is in a committed, intimate relationship with another individual 18 or older in which both individuals intend a lifelong commitment; (2) is financially interdependent with the other individual; (3) is not married to, or in a permanent partnership with, any other individual other than the individual; (4) is unable to contract with the other individual a marriage cognizable under this Act; and (5) is not a first, second, or third degree blood relation of the other individual. The bill defines a “permanent partnership” as the relationship existing between two permanent partners. Conditional permanent residence would apply in cases where the partnership is less than two years old (as is the case for marriages of that duration under the Immigration Marriage Fraud Amendments of 1986). The same penalties that apply to marriage fraud (imprisonment of up to five years, and a fine up to $250,000) would apply to sham permanent partnerships.

   Nineteen other nations (Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Iceland, Israel, New Zealand, the Netherlands, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, and the United Kingdom) already offer such benefits to same-sex couples. However, it is unclear whether the U.S.A. will join them any time soon. S. 424 faces opposition by those claiming to seek absolute reductions in the number of persons seeking to immigrate to the U.S.A., as well as those whose objection is geared more specifically to the issue of “legitimizing” same-sex relationships.

   Among those objecting to the proposed legislation in June 3 testimony before the Judiciary Committee was Jessica M. Vaughan, Director of Policy Studies, Center for Immigration Studies (“CIS”). CIS is self-described as “an independent, non-partisan, non-profit research organization founded in 1985. It is the nation’s only think tank devoted exclusively to research and policy analysis of the economic, social, demographic, fiscal, and other impacts of immigration on the United States.” The mission of CIS is “to expand the base of public knowledge and understanding of the need for an immigration policy that gives first concern to the broad national interest. The Center is animated by a pro-immigrant, low-immigration vision which seeks fewer immigrants but a warmer welcome for those admitted.” See www.cis.org.

   Ms. Vaughan’s written testimony describes her as “a former State Department consular officer and expert on visas, immigration benefits and immigration law enforcement” (http://judiciary.senate.gov/hearings/testimony.cfm?id=3876&wit_id=8005). Despite these claimed credentials, she demonstrated a lack of understanding as to establishing the bona fides of a marriage for immigration purposes by stating, for example, that an applicant for permanent residence is interviewed when a case is processed overseas (at a U.S. consulate), but wrongly states that “this does not usually occur with U.S.-based applications, which represent about half the total caseload.”

   In her written testimony, Ms. Vaughan’s objections to S. 424 were largely on two grounds. First, she noted that there “is no mechanism [such as a marriage certificate or other “official documentation”] to officially recognize or sanction ‘permanent partnerships,’ at least not in more than a few states and foreign countries.” She stated that “[t]here are only about 21 foreign countries that have these partnerships,” and that they are mostly in Europe, whose residents make upon only a small percentage of legal U.S. immigrants. With this testimony, she corroborated rather than disproved that a “permanent partnership” alternative to state-sanctioned marriage is necessary to afford same-sex couples and their families U.S. immigration benefits.

   Ms. Vaughan’s testimony was not intended as support for S. 424, however, and she also objected to the bill on grounds that it “will introduce new opportunities for fraud.” In fact, she used the term “fraud” or “fraudulent” a total of 19 times in her short written statement. Therein, however, her single example of a case of relationship fraud, “told in the victim’s own words,” involved an American woman’s account of the alleged duplicity of her foreign husband.

   Ms. Vaughan suggested that the lack of an “official marriage certificate” would preclude a consular or immigration officer from properly adjudicating a case, stating that “it is not clear the partnerships could be substantiated in places where there is no official recognition of the union.” However, as she well knows and acknowledges, the simple existence of a document confirming that a marriage took place is never sufficient to grant permanent residence: “the level of scrutiny that must be directed at these applications is frustrating and intimidating to legitimate applicants.” Satisfactory documentary evidence to establish the legitimacy of the claimed relationship is always required, and would be no different in a same-sex relationship than a marriage – except, perhaps, for a government-issued document constituting “official recognition of the union.”

   Notwithstanding the level of scrutiny involved, Ms. Vaughan’s testimony stated that S. 424 “represents a national security and public safety vulnerability – as noted in the CIS marriage fraud paper, if Third World gold-diggers and small-time con artists can obtain green cards so easily under our system, so can terrorists and criminals, and they have.” Objecting to the proposed legislation based largely upon the potential for fraud in same-sex relationships, however, is a red herring. Given persisting social and cultural biases, it is unlikely that potential fraudsters would opt to present themselves in a “committed, intimate” relationship with a person of the same sex when they could achieve the same result, albeit also unlawfully, in a fraudulent marriage with a person of the opposite sex.

   Ms. Vaughan suggested that, “[i]f the goal is to give same-sex long-term partners equal access to immigration benefits, then the target should be the Defense Of Marriage Act, not the Immigration and Nationality Act. If that law were changed, which Congress has the power to do today, then this bill would not be necessary.” However, even a change to that U.S. law would not protect the many couples whose home countries do not afford same-sex couples the right to marry. Some such couples would be caught in a Catch-22, in that they could not travel to the U.S.A. unless they were married, and could not be married unless they traveled to the U.S.A. (or another country that sanctioned their marriage). Because there are so many countries where “there is no official recognition of the union,” it is necessary to provide an alternative to keep de facto families together.

   In his own written testimony, Senator Leahy remarked that “[s]ome have expressed concern that if Federal immigration law were to recognize committed same-sex partnerships for purposes of immigration benefits, opportunities for fraud would increase. I am confident that the U.S. Citizenship and Immigration Services will have no more difficulty discovering fraudulent arrangements between same-sex couples than heterosexual couples. Our immigration agencies are well-trained and highly experienced in this regard. I have little doubt that when this legislation is enacted, the immigration agency will safeguard against fraud and abuse in same-sex partnerships just as it does for heterosexual couples seeking immigration benefits.”

   As set forth in the testimony of Christopher Nugent, Co-Chair of the Rights of Immigrants Committee of the American Bar Association’s (“ABA”) Section of Rights and Responsibilities: “[u]ntil 1991, gay and lesbian foreigners were excludable from the U.S. solely on the basis of their sexual orientation. While that per se exclusion has been repealed, same-sex bi-national couples still face substantial discrimination because a U.S. citizen or lawful permanent resident cannot sponsor his or her same-sex partner for residency in the U.S.” As he noted, “[d]ata from the 2000 U.S. Census reported 35,820 same-sex bi-national couples live together in the U.S. Because current law and policy prevents [sic] overseas same-sex partners from immigrating to the U.S., many of these bi-national couples are forced to leave this country, depriving our nation of the economic, cultural, social and other contributions these individuals could make here.” His complete testimony may be read online at http://judiciary.senate.gov/pdf/09-06-03Nugenttestimony.pdf.

   Mr. Nugent also noted that the ABA has determined that “sexual orientation is not, by itself, a legitimate basis for discrimination, particularly when the basic needs of families headed by same-sex couples are concerned.” Accordingly, in February 2009 the ABA adopted a policy that supports the enactment of legislation to enable a U.S. citizen or lawful permanent resident who meets the definition of “permanent partner” in S. 424. “The Uniting American Families Act accomplishes this goal, while retaining and strengthening important protections against potential fraud and abuse, and we urge that Congress enact this legislation as soon as possible.”

2. In Brief: Recent Developments

   H-1B Count: On May 18, 2009, USCIS issued an update, advising that it had received approximately 45,700 H-1B petitions subject to the congressionally mandated cap of 65,000 for fiscal year 2010. The updated tally is an increase of only 1,700 petitions from the total four weeks earlier. USCIS had previously announced that it had received approximately 20,000 petitions on behalf of aliens with advanced degrees, who are exempt from the annual cap. Under the circumstances, USCIS has continued to accept petitions filed for aliens holding advanced degrees as well as those who qualify for H-1B status by virtue of a bachelor’s degree or its equivalent. Updated information is available at www.uscis.gov.

   Restoration of Standards for Ineffective Assistance of Counsel: On June 3, Attorney General Eric Holder vacated the January 7, 2009 decision of the Board of Immigration Appeals in Matter of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710. In Compean, former Attorney General Michael Mukasey concluded that aliens in removal proceedings have no right to counsel, but only a statutory privilege to retain counsel. With no right to an attorney, there was no right to effective assistance of counsel, thus eliminating longstanding protections under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). Instead, it was left to the Department of Justice whether or not to reopen proceedings “as a matter of administrative grace.” Under the June 3 decision, the standard has reverted to that established in Lozada, and any changes will be subject to Department of Justice rulemaking.

   NYS Attorney General Launches Investigation: On May 28, New York State Attorney General Andrew Cuomo announced that his office had issued more than 50 subpoenas in an investigation of alleged fraud and the unauthorized practice of law involving the immigrant community. Persons believing they have been victimized by such fraud are encouraged to contact the Attorney General’s Immigration Services Fraud Unit Hotline at 212-416-6149. Further details are available at (http://www.oag.state.ny.us/home.html).

   Historical A-Files Retained at National Archives: On June 3, the first alien registration files (“A-files”) were delivered to the Acting Archivist of the U.S.A., in connection with a ceremony to commence their transfer for permanent retention at the National Archives. Previously, A-files were considered temporary records and could have been destroyed after 75 years. Now, they are considered permanent records to be transferred to the National Archives 100 years after the individual’s date of birth, and are to be available for public access. Further information is available at www.uscis.gov, and clicking on the link to “Press Room.”