Articles Posted in Court Decisions

Since the 1970’s the Supreme Court has consistently ruled that laws that discriminate on the basis of gender are unconstitutional, but on November 10 the justices gave the impression they were ready to allow an exception to the rule.

The case revolved around whether “children born of mixed marriages abroad can claim U.S. citizenship.” Currently, legislation allows unwed mothers with U.S. citizenship of at least one year to pass on their citizenship to their foreign-born babies while unwed fathers can’t pass on their citizenship unless they’ve lived in the U.S. for at least five years after the age of 14.

In this case, Ruben Flores-Villar, born of a Mexican mother and raised by his American father in San Diego was about to be deported for the fourth time in response to the sale of marijuana, when he argued that he should be granted U.S. citizenship due to the fact his father was a 16 year old U.S. citizen when he was born. His lawyers argued that the above law is discriminatory against fathers and therefore unconstitutional.

In the recent Court Case (No. 10-22072) Gerardo Alvarado sued Carlos Albizu University for breach of contract and “breach of the duty of good faith and fair dealing.” He was working at the University on an H-1B visa in 2006 when he was promoted to Interim Director of the Business Program at the Miami Campus in 2007. His salary was increased from $75,000 to $95,000 per year. The University also agreed to sponsor Alvarado’s permanent labor certification in order for him to keep working past December of 2009. When the Director of Recruitment and Admissions stepped down, Alvarado was asked by the University to take over the position that had a salary less than his current job. When he asked for additional money the University refused saying it was already paying for attorney costs and fees for his labor certification.

Alvarado said the University violated § 1589(a) (3) and (4), alleging they used his pending labor certification as a means of force/abuse to obtain his “labor”. He believed that if he did not take this new job with the lower salary he would lose his visa and not obtain a permanent labor certification.

The Southern Florida District Court decided Alvarado’s claims failed. His arguments were “inconsistent with the definition of abuse or threatened abuse of law or legal process,” he merely proved the University violated the law. The court concluded that even though the University violated the regulation it did not use it as a “tool of coercion.” The University’s Motion to Dismiss was GRANTED.

Last week, a Washington District Court ordered the United States Citizenship and Immigration Service (USCIS) to begin accepting concurrently-filed I-360 and I-485 petitions. The District court ordered that the bar against concurrent filings on behalf of religious workers, as set forth in 8 C.F.R. § 245.2(a)(2)(i)(B), was an impermissible construction of 8 U.S.C. § 1255(a) and was therefore invalid and unenforceable.

The USCIS shall begin accepting concurrently-filed applications (I-360 and I-485) provided that the applicant meets all of the filing requirements.

Dada v. Mukasey, No. 06-1181, 554 U.S. ___ (June 16, 2008)

The Supreme Court held that voluntary departure recipients must be permitted to unilaterally withdraw a voluntary departure request before the expiration of the voluntary departure period “to safeguard the right to pursue a motion to reopen.” The Supreme Court rejected the argument that the voluntary departure period automatically tolls when a motion to reopen is filed.

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