"The International Affair" LA Lawyer Magazine -Feature Article - Immigration Attorney Heather Poole
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Feature article discussing the legal intersection between federal immigration law and California family law, the limits to immigration sponsorship, the validity of divorce and marriage for federal ...

Feature article discussing the legal intersection between federal immigration law and California family law, the limits to immigration sponsorship, the validity of divorce and marriage for federal immigration law purposes when it conflicts with CA law, and more. Los Angeles Lawyer Article June 2012 - by Immigration Attorney Heather Poole

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"The International Affair" LA Lawyer Magazine -Feature Article - Immigration Attorney Heather Poole Document Transcript

  • 1. June 2011 /$4EARN MCLE CREDITInternationalAffairsLos Angeles lawyerHeather L. Poole discussesthe interplay betweenimmigration law andfamily lawpage 16Anti-SLAPPUpdatepage 21Sale ofCollateralby Receiverspage 28OverseasBankAccountspage 9Red FlagsRulepage 132011 Lawyer-to-Lawyer Referral GuidePLUSInternationalAffairs
  • 2. 16 Los Angeles Lawyer June 2011WHEN AWARDING immigration benefitssuch as permanent residency based on a fam-ily or marital relationship, federal immigra-tion authorities generally must defer to statelaw interpretations of marriage, divorce, andannulment.1 This deference leads to widelyvarying immigration rulings that benefit somecouples and harm others depending on wherethey reside. The rule also complicates thejob of an attorney representing a client whois facing an immigration hearing, becausethe client’s marriage history, as interpretedunder state law, can result in a denial of per-manent residency.The only exceptions to this rule arisewhen a federal law specifically supersedesstate law. A prime example is the FederalDefense of Marriage Act (DOMA), whichlimits the definition of marriage—for thepurpose of federal benefits eligibility—to aunion between a man and a woman.2Although California recognizes the gay mar-riages entered into during the short timewhen gay marriage was legal here, these mar-riages are not eligible for federal immigrationbenefits, because federal law does not recog-nize homosexual marriages as legally valid.Although President Barack Obama’s admin-istration announced in February that it wouldno longer defend DOMA’s constitutionalityin court, in March the Department of Home-land Securitys Office of General Counselconfirmed that the departments Citizenshipand Immigration Services (CIS) was to adju-dicate cases as before, because there had beenno change in the law.3DOMA’s restrictions have been success-fully challenged, however, in a case in whichstate law allows marriage between a post-operative transsexual and a person of theopposite sex.4 DOMA does not address thisissue directly. In Matter of Lovo-Lara, theBoard of Immigration Appeals deferred toNorth Carolina state courts to determinewhether to recognize such a marriage underthat state’s laws,5 and the state court con-cluded that since one spouse’s state birth cer-Heather L. Poole practices family-based immigra-tion law in Pasadena.I N T E R N AT I O N A LAffairsClients seekingpermanent residencyin the United Statesmay be unpleasantlysurprised by the legalinterpretation of theirmarital statusby Heather L. PooleHADIFARAHANI
  • 3. MICHAELCALLOWAY
  • 4. tificate reflected a postoperative genderchange, the state recognized the marriage,and this, in turn, provided a route to per-manent residency (also known as a greencard) for one of the spouses.6In addition, provisions in the Immigrationand Nationality Act (INA) forbid other typesof marriages, even if they are allowed undera state’s or country’s law, from receiving mar-riage-based immigration benefits. Theseinclude polygamous marriages (polygamy isvalid in many countries—including Sudan,Myanmar, and India), which are denied immi-gration benefits under the INA becauseCongress has deemed them to be in violationof public policy.7Aside from exceptions such as DOMAand polygamy, the general rule holds that inimmigration matters state law guides decisionsabout whether a person is or was married—and as a result, whether one spouse can spon-sor the other for permanent residency. Forexample, an immigrant spouse may be spon-sored for residency based on a common lawmarriage, but only if common law marriageis recognized in the state where the coupleresides.8 In addition, although the CIS willgenerally not recognize a proxy marriage (atwhich one spouse is not physically present atthe legal ceremony), the marriage will beconsidered valid for immigration purposes ifthe spouses can prove it was consummated,which carries its own evidentiary problems.9Similarly, taking this extra requirement thatimmigration law imposes into account, thelegitimacy of a proxy marriage that has takenplace in a foreign country will depend onthe laws of that country. If the marriage waslegally valid at the time of inception in thatcountry, then it will be recognized for U.S. fed-eral immigration purposes, assuming it doesnot violate U.S. public policy.10Although proxy marriage may be recog-nized in some states and under federal immi-gration law, it is not recognized in Californiaunless the absent spouse is in the U.S. armedforces, stationed overseas, and serving in aconflict or a war.11 If these circumstances donot apply, an immigrant spouse who residesand entered into a proxy marriage inCalifornia may not petition for a green cardbased on the marriage.Valid, Void, and VoidableWhile the legal details of a marriage maynot seem important to a client on his or herwedding day, they can profoundly affect theclient’s fortunes in later immigration pro-ceedings. For example, a spouse who wasmarried in a foreign country and is seekingalimony and a share of marital assets in adivorce may be dismayed to discover thatthe foreign marriage is invalid under state law.A finding under California law that a foreignmarriage is invalid can also upset the federalimmigration case of a spouse who obtainedpermanent residency based on the presumedvalidity of the marriage. If fraud or bigamyis implicated, the invalid marriage can poten-tially result in ineligibility for permanent res-idency, hefty fines, imprisonment, and depor-tation.12A California marriage that state law char-acterizes as void (which is not the same asvoidable) can also terminate a divorcingspouse’s options and eliminate the likelihoodof federal immigration benefits. Void mar-riages are defined in California Family CodeSections 2200 through 2201.13 These mar-riages are invalid from the moment of incep-tion and cannot be cured through a nuncpro tunc order, equitable estoppel, or anyother family or common law device to makethe marriage legally valid after the fact.14 Avoidable marriage, by contrast, is not neces-sarily invalid but can be deemed so by acourt, at which point the marriage is held tobe not legally valid.15 An immigration lawyershould not expect an adjudicator from the CISto know the state Family Code and the spe-cial mechanisms for legitimating a process orfinding. Instead, the attorney should expectan uphill battle and likely appeals when issuesarise concerning whether a marriage is valid,void, or voidable.DivorceThe validity of a client’s marriage may dependnot only on the particulars of the marriage butalso those of a prior divorce. The validity ofa foreign national’s divorce plays a critical rolein whether he or she can legally remarry.Making a determination about the validity ofa divorce is not as simple as reviewing a for-eign divorce decree that appears facially valid.The foreign national’s physical presence in thestate of California, as well as the time whenthe divorce was finalized, are crucial factorsin determining the validity of the divorceunder California law. A person’s currentimmigration status is irrelevant for purposesof this analysis, as California can exercisejurisdiction over a foreign national who is ille-gally residing in the state (without a valid visa,permanent residency, or authorized stay) forpurposes of the Family Code.16When trying to preserve or file for U.S.immigration status, many immigrants,whether they reside in California legally orillegally, opt for a so-called quickie divorce intheir home country (by proxy or by makinga short trip). Many immigrants are ignorantof the California law that allows them to filefor divorce in state court even if they have noimmigration status. U.S. citizens have alsobeen known to take advantage of foreignquickie divorces, most notably in theDominican Republic, which since the 1970shas approved divorce based on mutual con-sent and allowed foreigners to divorce withno imposed residency requirement.17Unfortunately for those immigrants who haveavailed themselves of a quickie foreign divorcebefore consulting an attorney, these divorceswill likely not be recognized in California ifCalifornia domicile has attached.18A quickie divorce in a foreign countrymay not be found valid under California lawif the foreign national was living, even illegally,in California at any time in the year before theforeign divorce is filed. The California FamilyCode assumes jurisdiction over the foreignnational based on physical domicile inCalifornia.19 A quickie foreign divorce thatCalifornia does not recognize cannot be usedfor immigration purposes—including, forexample, to demonstrate a legal right toremarry. For the divorce of a foreign nationaldomiciled in California to be valid, the for-eign national must file the divorce inCalifornia pursuant to the Family Code.Otherwise, any subsequent marriage is voidand bigamous, which could severely under-mine a subsequent immigration case.In Matter of Hosseinian, the Ninth Circuitwas presented with the question of whethera divorce decree obtained in Hungary shouldbe recognized. The spouses in the divorceproceeding lived in California at the time theproceedings commenced and were finalized.20The court quoted the Family Code’s resi-dency requirements in holding that the foreigndivorce decree was invalid because the spouseswere residents of California at the time, andCalifornia had jurisdiction over them.21The CIS, which governs benefits—includ-ing permanent residency—that are granted toimmigrants, has also agreed with theHosseinian decision more recently in a sim-ilar case in Florida. In 2008, the CIS Ad-ministrative Appeals Office affirmed theMiami CIS district director’s denial of a greencard for the spouse of a U.S. citizen becausethe spouse’s prior Columbian divorce wasdetermined to be invalid.22 The immigrantcould not demonstrate that she or her previ-ous spouse had resided in Colombia for thenecessary six months prior to the filing of thedivorce petition. They lived in Florida, whichobtained jurisdiction under its family codewhen they became residents.Other StatesThese laws are not the same in all states.New Jersey, for example, does recognizeabsentee divorces obtained by its residents.23The Board of Immigration Appeals may there-fore recognize a New Jersey marriage inwhich one party has previously obtained a for-eign divorce. As the BIA stated in Matter ofMa, “[W]here one of the parties to a marriagehas a prior divorce, we look to the law of the18 Los Angeles Lawyer June 2011
  • 5. state where the subsequent marriage was cel-ebrated to determine whether or not thatstate would recognize the validity of thedivorce.”24 An attorney in California, there-fore, should investigate a client’s marital andresidential history with the Hosseinian deci-sion in mind.Objections to the Hosseinian court’s lineof reasoning, and to the constitutional valid-ity of California’s residency requirements inrecognizing foreign divorces, have been raisedbased on the full faith and credit clause in theU.S. Constitution and the inherent publicinterest in recognizing the laws and courtdecrees of other countries.25 But as theHosseinian court pointed out, the full faithand credit clause does not apply to the recog-nition of divorces obtained in foreign coun-tries. It only applies to other U.S. states.26 Forthe full faith and credit clause to apply, adivorce must not only be valid under thelaws of the jurisdiction that granted thedivorce but also be in keeping with public pol-icy. If not, a state or federal immigrationauthority may decline to recognize thedivorce.27Similarly, if a foreign national who hasresided in California for years travels toanother state and fraudulently claims to be aresident of that state to obtain a quickiedivorce, the CIS may not recognize thedivorce. The issue of whether a state court isbound to legally accept another state’s divorcedecree or order even if it was obtained fraud-ulently remains to be litigated in federalcourt.28 The U.S. Supreme Court has held thatthe full faith and credit clause is “exacting,”but when the judgment appears to violate astate’s own law, the issue is not so clear.29 TheFamily Code leaves this issue open as well.Unregistered MarriageAnother common immigration issue iswhether a marriage in a foreign countryis legal when it was not registered with thecivil authority of that country or otherwisesolemnized pursuant to that country’s laws.Frequently, an immigrant will simply remarryin the United States after having lived herefor years. Legal problems may not beginuntil after the immigrant hires a lawyer toobtain a U.S. divorce or to obtain permanentresidency. Immigrants may assume that thefirst marriage in the home country was notlegal because it was not registered. The immi-gration attorney must turn to the laws of theforeign country where the marriage tookplace to determine if the first marriage waslegal.30Another common scenario is that an immi-grant or a U.S. citizen marries abroad andlater fails to tell his or her divorce or immi-gration attorney about the prior marriage,believing that it will not be recognized in theUnited States. However, under Californialaw, if someone knows that he or she is notlegally divorced and remarries, he or she canbe charged with bigamy. The person maylikewise be guilty of polygamy under federallaw, which is a ground for the immigrant’sinadmissibility (legally barring the immigrantfrom obtaining a green card). A federal con-viction of marriage fraud also carries a penaltyof five years in prison and/or a fine of$250,000. The state of California also penal-izes bigamy with either a prison sentence ofup to one year or a fine of up to $10,000.31A bigamous marriage will only be recognizedas valid for federal immigration purposes ifit is the U.S. citizen spouse who has com-mitted the bigamy and the immigrant spousecan prove that he or she has been abused bythe U.S. spouse.32Another frequent problem among immi-gration petitioners is a prior marriage that didnot end in death or divorce but in the disap-pearance of the spouse, who is presumeddead. Without either a divorce or deathdecree, the CIS is likely to conclude that theimmigrant’s current marriage is legally invalidand bigamous. However, under California’sFamily Code, any subsequent marriage thata client in this situation enters into whilebelieving the former spouse is dead is validuntil a formal nullity action is adjudged anddecreed by the family court.33Thus, the subsequent marriage is void-able, not void.34 If no nullity action is everapplied for by a prior spouse or adjudged bya court, then the subsequent marriage may bedeemed legally valid despite the absence of aprior divorce decree. The CIS recognizes void-able marriages as valid.35 Immigration prac-titioners trying to guide clients through thisFamily Code loophole should expect a fight,however, since the last precedent BIA case onthis issue for purposes of granting immigra-tion benefits was decided over 30 years ago.36Immigration lawyers should protect them-selves and their clients against unwanted sur-prises by conducting a thorough inquiry intothe marital, citizenship, and residential historyof not only the client but also of the client’sspouse and all former spouses. A similarthoroughness in the intake inquiry for couplesor individuals who are visiting a familylawyer’s office for a prenuptial or maritalagreement may also help a family or immi-gration case later.The complex interplay between state andfederal laws leaves many immigration andfamily law clients confused, frustrated, andlooking for someone to blame. Family andimmigration lawyers can expose themselvesto malpractice liability if they fail to takeinto account the many factors that can ren-der a marriage void and thus destroy animmigrant’s hope for permanent residency.Among these factors is the deference thatfederal immigration authorities pay to statelaws concerning marriage. I1 Matter of Lovo-Lara, 23 I. & N. Dec. 746, 748(B.I.A., May 18 2005), Boddie v. Connecticut, 401 U.S.371 (1971); Sherrer v. Sherrer, 334 U.S. 343 (1948).2 Federal Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at 28 U.S.C.§1738C.3 See, e.g., http://www.keennewsservice.com/2011/03Los Angeles Lawyer June 2011 19
  • 6. /31/doj-to-married-green-card-applicants-doma-still-applies/.4 Matter of Lovo-Lara, 23 I & N Dec. 746.5 Id. at 748.6 Id. at 753.7 Matter of H., 9 I & N Dec. 640 (B.I.A. 1962).8 United States v. Gomez-Orozco, 28 F. Supp. 2d 1092,1095-98 (C.D. Ill. 1998).9 Immigration and Nationality Act, 8 U.S.C.§1101(a)(35).10 Matter of E., 4 I & N Dec. 239 (B.I.A. 1951).11 FAM. CODE §420(b).12 8 U.S.C. §1325(c) (up to five years in prison and/or$250,000 fine for marriage fraud felony conviction);8 U.S.C. §1227(a)(1)(G) (marriage fraud deportationground).13 FAM. CODE §§2200-01.14 See FAM. CODE §2346(c)-(d) (nunc pro tunc);Mukherjee v. INS, 793 F. 2d 1006 (9th Cir. 1986)(Failure of INS to detect an invalid termination of aprior marriage does not constitute affirmative mis-conduct for equitable estoppel to attach.); Matter ofMorales, 15 I & N Dec. 411 (B.I.A. 1975).15 FAM. CODE §2210.16 FAM. CODE §§5001-02 (effective Jan. 1, 1970) (noreference to immigration status in determining per-sonal jurisdiction).17 Dominican Republic, Ley No. 142 (adding ¶IV andV to Art. 28 of Ley No. 1306) (Gaceta Oficial No.9229, June 1971, amended 2000).18 See Lopes v. Lopes, No. 081803 (Fla. 5th Dist. Ct.App. 2003) (A foreign divorce that evaded state’s res-idency requirements is invalid.).19 FAM. CODE §§5001-02 (effective Jan. 1, 1970).20 Matter of Hosseinian, 19 I & N Dec. 453 (B.I.A.1987).21 Id.22 See redacted administrative decision of Robert P.Wiemann, Chief, Administrative Appeals Office, U.S.Citizenship and Immigration Services (Feb. 1, 2008), avail-able at http://www.uscis.gov/err/A2%20%20Certification%20of%20Cuban%20Adjustment/Decisions_Issued_in_2008/Feb012008_04A2caa.pdf (last visited Jan. 27,2011).23 Matter of Zambrano, 18 I & N Dec. 46, InterimDecision #2864 (May 5, 1981).24 Matter of Ma, 15 I & N Dec. 70 (B.I.A. 1974). Seealso Matter of Weaver, 16 I. & N. Dec. 730 (B.I.A.1979).25 U.S. CONST. art. IV, §1.26 Matter of Hossenian, 19 I & N Dec. 453 n.1 (B.I.A.1987).27 Matter of Luna, 18 I & N Dec. 385, 386 (B.I.A.1983).28 Id. at 386.29 Franchise Tax Board v. Hyatt, 538 U.S. 488, 494(2003) (quoting Baker v. General Motors Corp., 522U.S. 222, 233 (1998)).30 Adams v. Howerton, 673 F. 2d 1036 (9th Cir.1982), cert. denied, 458 U.S. 1111 (1982); Matter ofArenas, 15 I & N Dec. 174 (B.I.A. 1975).31 PENAL CODE §§281, 283 (bigamy); 8 U.S.C.§1182(a)(10)(A) (polygamy).32 8 U.S.C. §1154.33 FAM. CODE §2210.34 Id.35 See, e.g., Matter of G., 9 I & N Dec. 89 (B.I.A. 1960)(recognizing marriages that are merely voidable but notvoid). See also Matter of Arenas, 15 I & N Dec. 174(B.I.A. 1975) (Depending on state law, a second mar-riage, where divorce is not final, may only be voidable,not void.).36 Matter of Nigoghossian, 15 I & N Dec. 256 (B.I.A.1975). Cf. Wilcox v. Wilcox, 171 Cal. 770, 776 (1916);Goff v. Goff, 52 Cal. App. 2d 23 (1942) (good faithbelief in death of prior spouse).20 Los Angeles Lawyer June 201120 Los Angeles Lawyer June 2011Law Offices ofBrian D. Lerner• Admitted in Circuit Courts of Appealacross the US• Re-certified by California State Bar untilSeptember 2015• Specializing in all areas of ImmigrationLaw• Handle all deportation/removal cases,appeals, and waivers• We prepare multiple business andinvestment visas• We help with Family Visas and PermitsMAIN 562.495.0554866.495.0554blerner@californiaimmigration.us3233 E. Broadway, Long Beach, CA 90803BRANCH OFFICE IN MANILA OPENING IN LATE 2011Licensed since 1992CERTIFIED SPECIALIST IN IMMIGRATION ANDNATIONALITY LAWTOLLFREEwww.linc.bizJAN ROUGHAN, RN114 W. COLORADO BLVD., MONROVIA, CA 91016 | 626.303.6333 EXT. 16 OR 17• LIFE CARE PLANS Comprehensive (Trial) – Mini (Mediation/Settlement Conference) – Critique• EXPERT TESTIMONY Trial – Arbitration – Mediation/Settlement• VIDEO SERVICE Day in Life – Mediation/Settlement Documentary• MEDICAL RECORDS Review – Chronology• IME Attendance Report/CritiqueLife CarePlanningA PROFESSIONAL CORPORATIONIMMIGRATION ATTORNEY