LGBT Immigration Issues October 9, 2015 LGBT Immigration Issues Bryon M. Large, Senior Associate Attorney Kolko & Associates, P.C. (303) 371-1822 BL@kolkoassociates.com Bryon M. Large - Kolko & Associates, PC

LGBT Immigration Issues October 9, 2015 What is a “marriage?” A Marriage is a Marriage Not a Civil Union What about Common Law Marriage? Bryon M. Large - Kolko & Associates, PC

LGBT Immigration Issues October 9, 2015 Bad Law (Pre-Windsor) Defense of Marriage Act (Section 3 of DOMA) 1 U.S.C. 7 Adams v. Howerton, 673 F.2d 1036 (9th Cir 1982) 9th Circuit case regarding a Colorado marriage Bryon M. Large - Kolko & Associates, PC

LGBT Immigration Issues October 9, 2015 Bryon M. Large - Kolko & Associates, PC

LGBT Immigration Issues October 9, 2015 Good Law (Post-DOMA) United States v. Windsor, 570 U.S. __ (2013) Thea Spyer and Edie Windsor Bryon M. Large - Kolko & Associates, PC

LGBT Immigration Issues October 9, 2015 Immigration Benefits Immigrant Visas Fiancée Benefits Dependent Children (Step-Children) Non-Immigrant Benefits Benefits in Removal Proceedings Bryon M. Large - Kolko & Associates, PC

Documenting Same-Sex relationships LGBT Immigration Issues October 9, 2015 Documenting Same-Sex relationships Special Issues in Documenting Relationships Lack of Prior Year Tax Returns Less frequently will have children born to the marital union “Coming out” issues may mean that there are less people to write affidavits Less contact with extended family Employers Bryon M. Large - Kolko & Associates, PC

Special concerns with adjudications LGBT Immigration Issues October 9, 2015 Special concerns with adjudications New area for adjudicators too! Combating fraud suspicion and allegations Sham marriages Past marriages Bryon M. Large - Kolko & Associates, PC

Defensive Benefits – Removal Proceedings LGBT Immigration Issues October 9, 2015 Defensive Benefits – Removal Proceedings Family-based Relief Benefits for Vulnerable Populations Humanitarian Defensive Options Refugees Asylum Withholding of Removal Protection under the Convention Against Torture Must show that it is more likely than not that the respondent would be tortured upon return to their home country Bryon M. Large - Kolko & Associates, PC

Strategies in Removal Proceedings LGBT Immigration Issues October 9, 2015 Strategies in Removal Proceedings Marriage Visa Petition for Adjustment of Status or Consular Processing Cancellation of Removal (INA § 240A(b) relief) Review how LGBT issue (and possible HIV) affect hardship arguments Bryon M. Large - Kolko & Associates, PC

Benefits for Vulnerable Populations LGBT Immigration Issues October 9, 2015 Benefits for Vulnerable Populations Asylum Requires a fear of persecution Special Immigrant Juvenile Status (SIJS) T Visa Visa status for victims of human trafficking U Visa Visa status for victims of certain crimes Victim must have cooperated with law enforcement Law enforcement agency (LEA) or judge must certify that Applicant was a victim and helpful to investigation and prosecution Violence Against Women Act (“VAWA”) Bryon M. Large - Kolko & Associates, PC

LGBT Immigration Issues October 9, 2015 Case Law Bryon M. Large - Kolko & Associates, PC

Matter of Acosta 19 I&N Dec. 211 (BIA 1985) LGBT Immigration Issues October 9, 2015 Matter of Acosta 19 I&N Dec. 211 (BIA 1985) Persecution on account of membership in a particular social group refers to persecution that is directed toward an individual who is a member of a group of persons, all of whom share a common, immutable characteristic A characteristic that is either beyond the power of the individual members of the group to change, or A characteristic that is so fundamental to their identities or consciences that it ought not be required to be changed Bryon M. Large - Kolko & Associates, PC

Matter of Toboso-Alfonso 20 I&N Dec. 819 (BIA 1990) LGBT Immigration Issues October 9, 2015 Matter of Toboso-Alfonso 20 I&N Dec. 819 (BIA 1990) Homosexual individuals are a member of a particular social group Certified by Attorney General Janet Reno in 1994 Gay man from Cuba Immigration Judge found homosexuality to be an immutable characteristic INS argued that it was “socially deviated behavior” Bryon M. Large - Kolko & Associates, PC

Hernandez Montiel vs. INS 225 F.3d 1084 (9th Cir. 2000) LGBT Immigration Issues October 9, 2015 Hernandez Montiel vs. INS 225 F.3d 1084 (9th Cir. 2000) Gay men with female sexual identities constitute a particular social group Bryon M. Large - Kolko & Associates, PC

Karouni v. Gonzales 399 F.3d 1163 (9th Cir. 2005) LGBT Immigration Issues October 9, 2015 Karouni v. Gonzales 399 F.3d 1163 (9th Cir. 2005) No distinction between homosexual acts and homosexual status INS essentially argued that it was the acts that caused the persecution The Court essentially ruled that to require the applicant to cease sexual activity would be to force him “to change a fundamental aspect of his human identity.” Bryon M. Large - Kolko & Associates, PC

Matter of S-E-G- 24 I&N Dec. 579 (BIA 2008) LGBT Immigration Issues October 9, 2015 Matter of S-E-G- 24 I&N Dec. 579 (BIA 2008) Neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities nor the family members of such Salvadoran youth constitute a “particular social group.” Membership in a purported social group requires that the group have particular and well-defined boundaries, and that it possess a recognized level of social visibility Upheld by the 6ht Circuit in 2009 Bryon M. Large - Kolko & Associates, PC

LGBT Immigration Issues October 9, 2015 Matter of M-E-V-G-; Matter of W-G-R- 26 I&N Dec. 227 (BIA 2014); 26 I&N Dec. 208 (BIA 2014) Social Visibility does not necessarily mean “ocular” visibility, and is renamed “social distinction” Requirements for a Particular Social Group: Share a common and immutable characteristic Defined with particularity Socially distinct within the society in question Bryon M. Large - Kolko & Associates, PC

LGBT Immigration Issues October 9, 2015 Document Issues Bryon M. Large - Kolko & Associates, PC

LGBT Immigration Issues October 9, 2015 USCIS Policy Document Issuance for Transgender Individuals Documents may be issued reflecting post-transition gender Requirements: Amended birth certificate, passport, or court order Medical Certification from a licensed physician Based on standards and recommendations of the World Professional Association for Transgender Health (WPATH) Must be an M.D. or a D.O. Proof of sex reassignment surgery is not required Name Change Per state or foreign law Bryon M. Large - Kolko & Associates, PC