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A second chance at my case in Immigration Court, based on my same-sex marriage?

May 16, 2014
Minsky, McCormick & Hallagan

Until the U.S. Supreme Court’s decision on June 26, 2013, foreign nationals in deportation proceedings were not able to rely on their same-sex relationship to help them stay in the U.S. (Read our previous blog post on the Court’s decision here). Following the Windsor ruling, the governmental agencies that deal with immigration have since taken steps to afford the same immigration benefits to those in same-sex marriages that have long been available to those in opposite-sex marriages.

As a result, those currently in deportation proceedings now have more defenses to deportation available to them. Based on a recent announcement by Immigration and Customs Enforcement, Office of the Principal Legal Advisor (ICE OPLA), even those with finished court cases might have a second chance to have some of these defenses considered by the Immigration Judge.

If an Immigration Judge is currently reviewing your case, you may qualify for several immigration benefits based upon your same-sex marriage:

  • You may be eligible for a green card based on your marriage, through a process called Adjustment of Status. If you are married to a U.S. citizen, entered on a visa (or someone filed a petition on your behalf prior to April 30, 2001), haven’t committed or been convicted of most crimes and are “admissible” to the U.S., you can ask the judge to review your case and hopefully approve your green card.
  • If you are undocumented and did not enter on a visa, you might also be eligible for Cancellation of Removal based upon your same-sex marriage to a U.S. citizen or resident if you have also been in the U.S. for at least ten years, have not been convicted of most crimes, are a person the government considers to have “good moral character,” and your spouse will suffer significantly more than the normal hardships associated with deportation.
  • If your spouse is applying for asylum before an Immigration Judge, you could potentially be included on his or her application, just based on your marriage (what is known as being a “derivative” to your spouse’s application).

For more details on Adjustment of Status, Cancellation of Removal, and Asylum, see our previous post. You may also qualify for another defense to deportation not mentioned here based on your marriage.

But what if the Immigration Judge already ordered you deported, and your case in Immigration Court is already completed? If you were in deportation proceedings prior to June 26, 2013, the Immigration Judge couldn’t have considered your same-sex marriage or relationship, and so you may not have been eligible for any defenses to deportation.

Now, there is a possibility you may have a second chance to have the Immigration Judge consider your case, if you are now married and eligible for an immigration benefit. On April 10, 2014, at a liaison meeting with the American Immigration Lawyers Association (AILA), a national association of lawyers who practice and teach immigration law, Immigration and Customs Enforcement Office of the Principal Legal Advisor (ICE OPLA) announced that it will agree to give such foreign nationals a second chance to have their case, and their same-sex marriage, considered.

This second chance will be available through a Motion to Reopen, a request to the Immigration Court asking the Immigration Judge to bring the case back to court and consider any new evidence or eligibility. ICE OPLA has stated that it will agree to join motions to reopen where the foreign national who was ordered deported has now entered into a lawful, bona fide (ie. real), same-sex marriage, and she or he is now eligible for some form of immigration benefit. These motions to reopen will be joined by both sides of the court case, the foreign national as well as the assistant chief counsel from ICE, who is essentially the prosecutor of the deportation case. Once both parties submit the motion to reopen to the Immigration Court, the Immigration Judge will decide the motion (likely granting it), and the case will be scheduled for a new hearing with an Immigration Judge.

There are various procedural requirements for Motions to Reopen, including time and numerical limits. For example, motions to reopen must generally be filed within 90 days of a removal order unless an exception applies, and generally only one motion to reopen can be filed for an individual’s case. These procedural requirements can have the effect of preventing many individuals from filing motions to reopen in their cases. Thus, it is especially significant that ICE has stated that it will agree to join motions to reopen. When both parties to the court case (the foreign national and ICE counsel) agree to reopen a case, the time and numerical limits do not apply. This means that, for example, if you were ordered removed in 2010, and you subsequently remained in the U.S. and entered into a same-sex marriage, you can ask ICE to join your motion to reopen your case, even though more than 90 days have passed since you were ordered deported. You must, however, be eligible for some sort of immigration benefit (such as those mentioned above), or ICE will not agree to reopen your case.

If you have questions about how a motion to reopen may apply to you, or whether you qualify for immigration benefits based on your same-sex marriage, you may contact us at 312-427-6163 or via our website.

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