U.S. Supreme Court: Gender Discrimination in Immigration Case

December 1, 2010

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.

Though Justice Ruth Bader Ginsburg spoke out against the stereotype that women are traditional caregivers for children and that in fact it was Flores-Villar’s father who took care of him, others on the court disagreed. Justice Kennedy didn’t want to go against Congress’ ruling and Justice Scalia said there was no precedent in which the court had ordered the government to permit someone citizenship. Due to the fact the Justice Kagan sat out on the case because of her previous involvement while at the State Department, it seems unlikely that the court will rule with Flores-Villar and declare the legislation unconstitutional.

Southern District of Florida Dismisses University Employee’s Forced Labor Claims

September 27, 2010

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.

USCIS ordered to accept concurrently-filed Religious Worker I-360 and I-485 applications

June 16, 2009

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.

Supreme Court Holds that Those Granted Voluntary Departure Can Seek Reopening

June 17, 2008

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.

Case Summary:

Samson Taiwo Dada (Petitioner) was placed in removal proceedings in 2004. While his removal proceedings were pending, his United States citizen wife filed an immigrant petition (I-130) on his behalf. The immigration judge presiding over the case denied Mr. Dada's request for a continuance pending adjudication of the I-130 petition and entered a voluntary departure order. Thereafter, Mr. Dada filed an appeal with the Board of Immigration Appeals (BIA) that was denied and Mr. Dada was ordered by the BIA to depart within 30 days.

Before the expiration of his voluntary departure period, Mr. Dada filed a motion to reopen and reconsider his removal and to stay his removal pending the decision on his motion to reopen with the BIA. Additionally, in his motion, Mr. Dada asked for the withdrawal of his request for voluntary departure. After the voluntary departure period had expired, the BIA denied Mr. Dada’s motion stating that his overstay made him ineligible for adjustment of status under INA § 240B(d). Mr. Dada petitioned for review to the Court of Appeals for the Fifth Circuit.

While Mr. Dada’s appeal was pending, the Fifth Circuit held in Banda Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006), that a motion to reopen does not toll the voluntary departure period. Thereafter, the Fifth Circuit denied Mr. Dada's petition for review. The Supreme Court granted certiorari to consider the following question: "Whether the filing of a motion to reopen removal proceedings automatically tolls the period within which an alien must depart the United States under an order granting voluntary departure." After oral argument, the Court ordered the parties to brief the following questions: "Whether an alien who has been granted voluntary departure and has filed a timely motion to reopen should be permitted to withdraw the request for voluntary departure prior to the expiration of the departure period."

Supreme Court Decision:

In a split 5-4 decision, the U.S. Supreme Court ruled in favor of a Mr. Dada. In his majority opinion, Justice Kennedy wrote, "The issue is whether Congress intended the statutory right to reopen to be qualified by the voluntary departure process." Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, an illegal immigrant is granted one motion to reopen a hearing. If, however, after being found removable, the illegal immigrant seeks to voluntarily leave the country, thus making it easier to obtain an immigration benefit in the future, he must do so within 60 days. If the facts of the case change and the immigrant seeks to reopen his/her proceeding, by leaving the United States his/her motion to reopen will be deemed withdrawn. Moreover, if in attempting to preserve his/her motion, the immigrant fails to leave, the immigrant will become ineligible for certain kinds of relief, and subject to a 10 year bar on immigration to the United States. Mr. Dada argued that by filing a motion to re-open the proceedings, the 60 day time period to live in the country was tolled. However, the majority of the court disagreed. The court, however, also rejected the government's contention that an immigrant's decision to leave voluntarily is a surrender of the ability to re-open a proceeding. In the decision, Justice Kennedy wrote "the conflict between the right to file a motion to reopen and the provision requiring voluntary departure no later than 60 days remains untenable." "Absent a valid regulation resolving the dilemma in a different way, we conclude the alien must be permitted an opportunity to withdraw the motion for voluntary departure, provided the request is made before the departure period expires."

In a dissenting opinion, Justice Antonin Scalia objecting to the decision on grounds "the court lacks the authority to impose its chosen remedy."