By Guest blogger, Victoria Neilson, Legal Director of Immigration Equality, Member of the AILA LGBT Working Group

Although the modern immigration system is grounded in the concept of family unity, lesbian and gay American citizens and lawful permanent residents have been completely excluded from petitioning for their partners or spouses.  When Congress enacted the Defense of Marriage Act (“DOMA”) in 1996, which defines marriage for all federal purposes as only the union of one man and one woman, marriages for same-sex couples were not celebrated in any country or state.  Today ten countries and five U.S. states plus the District of Columbia celebrate lesbian and gay marriages, and other states, including New York, fully recognize marriages celebrated elsewhere.  The only reason these marriages are not recognized for immigration purposes is DOMA.

On February 23, 2011, the Department of Justice (“DOJ”) announced that it would no longer defend DOMA in pending litigation challenging its constitutionality.  At the same time, however, DOJ stated that it will continue to enforce DOMA until there is a final judicial resolution.  What does all of this mean?

A detailed Practice Alert on DOMA and the legal challenges is available at AILA InfoNet Doc. No. 11033160 (posted March 31, 2011).  These are the highlights:

1 – Practitioners should not race into court to affirmatively challenge DOMA.

Although DOJ has stated that it will no longer defend DOMA litigation, it is likely that the House of Representatives will.  Planning is taking place now for strategic challenges in the immigration context to DOMA.  If you would like to be part of the planning, send an email to Immigration Equality at vneilson@immigrationequality.org or AILA Amicus at amicus@aila.org.

The victories thus far in DOMA litigation have been the result of well planned strategy by lesbian, gay, bisexual and transgender (“LGBT”) rights organizations.  If we start losing DOMA federal cases everyone loses.

If a practitioner has a case in which removal is truly imminent or is appearing before the Board of Immigration Appeals or any of the Federal Courts of Appeals on a case where a non-citizen in a same-sex marriage might qualify for cancellation relief, a waiver, or adjustment if the marriage were recognized for federal immigration purposes, the authors of the post can help.

2 – Most lesbian and gay binational couples should probably marry.

For many years we at Immigration Equality have counseled most lesbian and gay couples not to marry because doing so has the immediate downside of demonstrating “immigrant intent” with little or no tangible benefit.   We feel that the scales have now tipped in favor of marrying.  If a foreign partner is a visa overstay, or is on a long-term work visa that allows for dual intent, the possible benefits of marrying (potentially providing a defense in proceedings; proving longevity of relationship when the law does eventually change) now seem to outweigh the possible risks.  However, if a couple is making a relationship work by coming and going on a student visa, tourist visa or under the Visa Waiver Program, it may still be best to wait to marry.

3 – Most married lesbian and gay couples should not file I-130s affirmatively to challenge DOMA just yet.

Although DHS gave some indications in late March that it had put a temporary hold on lesbian and gay marriage cases, DHS spokesperson Christopher Bentley quickly moved to clarify that DHS had resumed denying same-sex marriage cases.  AILA and Immigration Equality are pushing DHS and DOJ for an abeyance policy but unless such a policy is announced, it would be inadvisable to file an I-130 affirmatively.  If in removal proceedings, practitioners are encouraged to reach out to Immigration Equality and AILA Amicus when filing an I-130 for a lesbian or gay spouse.

4 – Litigate and Advocate, but first Advocate.

A national litigation strategy on the DOMA challenge is emerging and will involve selecting cases in certain locations and pushing them forward to make good law.  As it shapes up, advocacy will help create the successful atmosphere within which we can win these cases.  DOMA could be repealed by Congress; DOMA could be found unconstitutional by the U.S. Supreme Court; the Uniting American Families Act  (“UAFA”), a bill which would allow USCs and LPRs to sponsor their long-term partners for immigration benefits, could pass; the Administration could hold applications and/or deportations in abeyance pending any of the above permanent outcomes.  For example, AILA, along with numerous other organizations, asked the administration to provide interim relief to bi-national gay and lesbian couples.

5 – Coordinate.

Immigration Equality and AILA Amicus may have resources to assist practitioners in individual cases with strategic decisions, advocacy with the administration for relief, and, in some cases, amicus help.

By Rebecca Sharpless (AILA Amicus 11th Circuit Monitor), Natalie Garrett, and Brittany Young, Immigration Clinic, University of Miami School of Law

Interpreting the prejudice requirement for ineffective assistance claims under Padilla v. Kentucky, the Third District Court of Appeal for the State of Florida has ruled that a generic judicial warning about possible deportation fails to cure defense counsel’s ineffective assistance.  Hernandez v. State, No. 3D10-2462 (Fla.App. 3 Dist., April 6, 2011).  In so doing, the court disagreed with a prior decision of another Florida appellate court.  See Flores v. State, —So.3d—, 2010 WL 2882465 (Fla.App. 4 Dist. 2010), pet. for reh’g and reh’g en banc pending.  The court, however, ruled against appellant Hernandez by characterizing Padilla v. Kentucky as creating a “new rule” that should not be applied retroactively.  Both issues have been certified to the Florida Supreme Court.  AILA members Sui Chung of Sui Chung, P.A. and Michael Vastine of the Immigration Clinic at St. Thomas University School of Law represented the appellant.

JUDICIAL IMMIGRATION WARNINGS

The Florida court’s ruling on the inadequacy of standard judicial warnings about immigration consequences is a model ruling that we hope will survive review by the Florida Supreme Court.  The specific judicial warning at issue was the standard warning under the Florida Rule of Criminal Procedure 3.172(c)(8) to a defendant pleading guilty that deportation is possible.  The court carefully analyzed the scope of defense counsel’s duty in Padilla v. Kentucky, concluding that “neither the plea colloquy nor Hernandez’s counsel’s advice . . . conveyed the warning that deportability was a non-discretionary and ‘truly clear’ consequence of his plea.”  The court went further to recognize that the test is not whether someone has been convicted of an aggravated felony, but whether the person “became deportable,” stating that both “scenarios” require defense counsel to “furnish a ‘will subject you,’ not a ‘may subject you’ warning to his or her client.”

It is important to keep in mind, however, that the court’s ruling was limited to a scenario involving “truly clear” immigration consequences—defined as cases in which the noncitizen clearly falls within a ground of removal.  The court did not go so far as to say that a judicial warning can never cure defective representation by defense counsel.  In particular, the court did not rule on whether judicial warnings about the possibility of deportation could cure prejudice in cases where there is some question about whether a conviction falls within a removal ground.  Moreover, the court suggests that a “will subject you” to deportation warning might cure ineffective assistance of counsel (emphasis added).

AILA, South Florida Chapter, filed an amicus brief in Hernandez v. State on the prejudice issue, authored by Tania Galloni, Florida Immigrant Advocacy Center, and Rebecca Sharpless, Immigration Clinic, University of Miami School of Law. The brief is available for download.

RETROACTIVITY

In contrast to its ruling on judicial warnings, the court’s ruling on retroactivity is disappointing.  Although the court recognized that the U.S. Supreme Court had strongly implied that defendants could use its decision in Padilla to challenge preexisting pleas, it went on to conclude otherwise.  The court held that Padilla v. Kentucky established a non-retroactive new rule, but failed to even consider the threshold question of whether Padilla even establishes a new rule requiring a retroactivity analysis.  As other courts have found, Padilla involved the application of an existing rule (the Strickland v.Washington test for ineffective assistance) to a new set of facts (pleas involving immigration consequences).  See People v. Bennett, 903 N.Y.S.2d 696 (N.Y.City Crim. Ct. 2010); People v. Garcia, 907 N.Y.S.2d 398 (N.Y.City Crim Ct. 2010). See also D. Kesselbrenner, “Practice Advisory:  Retroactive Applicability of Padilla v. Kentucky,” available here.   The 3^rd DCA’s failure to engage with this argument softens the impact of losing the retroactivity claim and we remain optimistic that the Florida Supreme Court will deliver a a better-reasoned decision.

Please contact AILA Amicus for assistance with Padilla claims pending before any of the State appeals courts or the Federal appeals courts at aila@amicus.org.