Shotgun Weddings: Family Law Issues in Immigration Cases. Marriage Issues. Marriage Issues

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Reynold Gordon
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1 Shotgun Weddings: Family Law Issues in Immigration Cases Bryon M. Large (DL), Denver, CO John Eckelberry, Denver, CO Monica Eav, Chicago, IL Ally Bolour, Los Angeles, CA Marriage Issues Agency looks to the law of the State to determine the validity or legality of the marriage Issue: Common Law Marriage Issue: Marriage Between Same-Sex Couples Marriage Issues Agency looks to the law of the State to determine the validity of a divorce Eligibility to marry determined by state law Issue: PC is married to USC. This is PC s second marriage. PC was never divorced from his first wife who resides in Home Country. Can USC petition for PC?

to determine the validity or legality of the marriage Issue: Common Law Marriage Issue: Marriage Between Same-Sex Couples Marriage Issues Agency looks to the

2 I-864 Issues in Divorce/Alimony Federal law pre-empts State law, so I-864 obligations survive dissolution Obligation continues until termination upon becoming a U.S. citizen, 40 qualifying quarters of work in the U.S., death, or termination of LPR status I-864 Issues in Divorce/Alimony Basic obligation is 125% of poverty (See I-864P) Using I-864 to determine maintenance (alimony) can be greater than the basic obligation Court is not bound by the minimum amount Uniform Premarital Agreement Act 1983 Based on similar premise of keeping spouse from seeking public assistance Drafters contemplated the agreement would be reviewed for conscionability at the time of enforcement Child Custody Termination of Parental Rights Abandonment vs. Relinquishment Dependency & Neglect (D&N) vs. Adoption

obligation Court is not bound by the minimum amount Uniform Premarital Agreement Act 1983 Based on similar premise of keeping spouse from seeking public assistance Drafters contemplated the

3 Termination of Parental Rights Dependency & Neglect (D&N) STATE SPECIFIC! Affidavit must be filed stating efforts to locate parent(s) Parent(s) surrendered physical custody for 6 months and not manifested intention to resume physical custody; OR identity of parent(s) is unknown and remains unknown for 3 months after reasonable efforts to locate Physical, mental, and emotional needs of child(ren) given primary consideration Termination of Parental Rights Adoption STATE SPECIFIC! Consent of relinquishing parent(s) Order terminating based on clear and convincing evidence of best interests of the child Based on parent being unfit, no established relationship, and not promptly taking substantial parental responsibility Physical, mental, and emotional needs of child(ren) given primary consideration Special Immigrant Juvenile Status Finding of Neglect, Abuse or Abandonment 1 Parent State Court Issue (Family/Juvenile/Probate) Special Findings File Form I-360/I-485 one-stop package with Chicago Lockbox (check I-360 instructions)

unknown and remains unknown for 3 months after reasonable efforts to locate Physical, mental, and emotional needs of child(ren) given primary consideration Termination of Parental Rights Adoption

4 SIJS Special Findings The minor is court dependent or is under custody of court-appointed individual or entity Reunification with one or both parents is not viable due to abuse, abandonment, or neglect (or similar basis under state law) It is not in the minor s best interest to return to their home country Court will maintain limited jurisdiction to verify the ongoing validity of the findings in the order Adoption Cases Adoption from a Hague Convention Signatory country Adoption from a non-hague country (Non-Hague Adoption) Special Immigrant Juvenile Status Hague Convention on International Adoptions Adoptions finalized on or after 4/1/08 At least one adoptive parent is a U.S. Citizen and habitual resident of the U.S. 8 CFR (a) Child is a habitual resident of a Hague signatory country (see adoption.state.gov) Child s country of citizenship = presumed country of habitual residence. 8 CFR (b).

findings in the order Adoption Cases Adoption from a Hague Convention Signatory country Adoption from a non-hague country (Non-Hague Adoption) Special Immigrant Juvenile Status Hague Convention on

5 Hague Restrictions Must follow step-by-step Hague process if out of order, will be denied Restrictions on payments to obtain adoptive placement Restrictions on contact between adoptive parents and birth parents, orphanage directors, or legal custodians Exception for relative adoptions Who Can Do a Hague Case? Must be a Hague-accredited agency/entity (see adoption.state.gov) Many (most?) Hague-accredited agencies do not do relative or interfamilial adoptions, only orphan cases Attorney s role: Review, prepare, advise, but no adoption services without accreditation What About Children Who Are Living in the U.S.? Problem: To do adoption the pre-hague way in the United States, the Central Authority of the child s country must find that child is now habitually resident in U.S. Uncertain process (or lack thereof) for obtaining habitual resident letters from the Central Authority of child s home country Letter must be obtained BEFORE adoption is finalized

) Hague-accredited agencies do not do relative or interfamilial adoptions, only orphan cases Attorney s role: Review, prepare, advise, but no adoption services without accreditation What About

6 What If the Adoption Has Already Been Completed in the U.S.? If Hague Convention was not followed and should have been, the only way to get around the Hague is for adoptive parents to go live with child outside the U.S. for 2 years (legal and physical custody) If Hague does not apply, then the old, non-hague immigration rules apply, INA 101(b)(1)(E): 2 years of legal custody, 2 years of physical residence Steps of Hague Case 1. Home study of adoptive parents 2. File I-800A (suitability of parents) 3. Receive child referral from sending country 4. If accept referral, file I If provisionally approved, file Immigrant Visa Steps of Hague Case 6. Preliminary adjudication by consular officer. If OK, Article Five letter sent to child s home country 7. Final adoption/custody decree must be obtained 8. Final IV appointment to review new birth certificate, passport, etc. ensure Hague compliance

for 2 years (legal and physical custody) If Hague does not apply, then the old, non-hague immigration rules apply, INA 101(b)(1)(E): 2 years of legal custody, 2 years of physical residence Steps of

7 Bottom Line in International Adoptions: Role of family law and immigration law attorneys is very different in Hague cases Must first investigate whether the Hague applies in every case, before taking any action in family court Consider immigration alternatives to adoption: Special Immigrant Juvenile Status Same-Sex Marriage and Immigration Law Defense of Marriage Act (DOMA) Controls DOMA is still good law in all jurisdiction DHS & DOJ are bound by DOMA DOJ announced that they would no longer defend DOMA, but that it will still be enforced 1 USC 7 In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife.

good law in all jurisdiction DHS & DOJ are bound by DOMA DOJ announced that they would no longer defend DOMA, but that it will still be enforced 1 USC 7 In determining the meaning of any Act of

8 DOMA State and Federal Challenges Congressional Action Matter of Dorman, 25 I&N Dec. 485 (A.G. 2011) Matter of Dorman Whether the Respondent s civil union qualifies to consider him to be a spouse under New Jersey law Whether, but for DOMA, the civil union would qualify him to be a spouse under the INA What impact the timing of his union has on discretionary relief Whether the Respondent would have qualified for 10-year COR, but for the qualifying relative issue DOMA Implications in Immigration Law Cancellation of Removal Waivers requiring a qualifying relative VAWA NACARA

the civil union would qualify him to be a spouse under the INA What impact the timing of his union has on discretionary relief Whether the

9 Strategies for Your LGBT Clients Prosecutorial Discretion Non-Immigrant Visas U Visas Questions & Answers

Required Employment D Documents Document Options for Ve erifying Eligibility Legal S Spouse Eligibility requirements:

Required Employment D Documents Document Options for Ve erifying Eligibility Legal S Spouse Eligibility requirements: Required Employment Documents Below is a list of eligibility rules and documents required to verify the eligibility of each dependent. In some cases, at least TWO forms of documentation aree required.