Articles Posted in Family Law

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father-656734_640-300x195The Fifth Circuit affirmed a district court’s dismissal of a selective enforcement claim to halt the removal of an immigrant father, citing that it also lacks the subject-matter jurisdiction to conduct a judicial review of the claim.

Martin Duron Esparza moved to Mississippi from Mexico as an undocumented immigrant and has been a valued member of the community for over 20 years. He filed an application for cancellation of removal in 2011, proving that he had the good moral character, lack of a criminal record, and that his removal would cause tremendous hardship for his remaining relatives – many of whom are US citizens.

An immigration judge, however, found that Esparza failed to meet the criterion of having a 10-year continuous presence in the country, and subsequently ordered his removal to Mexico. Esparza appealed to the Board of Immigration Appeals (BIA), but his appeal was dismissed in 2013.

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detentionThe American Civil Liberties Union (ACLU) of Massachusetts filed a class action lawsuit against the Trump administration on Tuesday, claiming a trend of detaining immigrants seeking legal immigration through marriage to U.S. citizens.

The lawsuit comes amid increased calls by President Trump to crack down on illegal and legal immigration, particularly chain migration, or the practice of seeking legal immigration status by sponsoring extended family members seeking legal entry into the United States. These new immigrants, upon legalization, carry on the practice, resulting in a familial “chain” of immigrants entering the country.

The proposed class action, filed in the U.S. District Court in Massachusetts, alleges that immigration officials have been deliberately detaining noncitizen spouses of U.S. residents seeking lawful immigration status, forcibly breaking families apart.

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licenseSeveral immigrant rights advocacy groups have raised concerns over a number of state bills recently introduced in Michigan, which require drivers’ licenses for legal immigrants to bear distinguishing visual markers and the expiration date of their legal status, claiming that such a measure will lead to racial profiling and discrimination.

Two Michigan House bills were proposed last month by Pamela Hornberger(R-Chesterfield Township) and Beth Griffin (R-Mattawan), mandating to have driver’s licenses and state identification cards of noncitizens clearly indicate when the license holder’s legal status is set to expire. Both bills will be discussed in a House Transportation and Infrastructure Committee hearing set on Tuesday.

According to Michigan Rep. Triston Cole (R-Mancelona), chair of the committee considering the legislation, the two bills are likely to “not have a great deal of resistance in the committee,”and will “come out fairly quickly once we can get the hearing process over.”

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ACLU Takes ICE Field Offices to Court for Illegal Detention of Asylum SeekersThe American Civil Liberties Union (ACLU), together with other groups, has filed a federal lawsuit against five U.S. Immigration and Customs Enforcement (ICE) field offices for detaining asylum seekers without cause.Foreigners seeking asylum in the United States are procedurally required to submit themselves to initial “credible fear” exams to determine the legitimacy of their reasons for attempting to enter the country. According to the ACLU, all the asylum seekers in question, who now serve as plaintiffs to the case, had passed their exams but are nonetheless being kept in detention.

In the suit, the ACLU notes that the asylum seekers in question have ready and able sponsors in the U.S.willing to provide housing. Despite this fact, they claim the federal government insisted on detaining them instead of granting them access into the country.

The ICE field offices named in the suit include Detroit, El Paso (which covers West Texas and New Mexico), Los Angeles, Newark, and Philadelphia. The ACLU alleges that more than 1,000asylum seekers have been unjustly detained by these offices since the beginning of the Trump administration. And according to Borderland Immigration Council, an El Paso-based “coalition consisting of local immigration attorneys and advocacy groups,” the success of the case may mean relief for at least 2,000 more asylum seekers detained in El Paso and Sierra Blanca.

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courtroomThe Department of Homeland Security announced on Wednesday that immigration agencies will resume processing of renewal applications under the Deferred Action for Childhood Arrivals (DACA) program, which comes as a result of nationwide injunctions issued by a number of courts over the past months.

DACA is an Obama-era executive order that offers temporary protected status to undocumented immigrants who entered the country as minors. Under the under the immigration program, DREAMers (named after the DREAM Act, a failed bill with the same provisions as DACA) are permitted to apply for two-year-renewable work permits, allowing them to legally work in the country and seek a driver’s license among other things.

In September last year, President Donald Trump announced that he would be rescinding DACA on the grounds that former President Obama had overstepped his executive power in creating the program. He did, however, give Congress six months to draft and pass a legislative-based replacement that would finally protect DREAMers for good.

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The highest court in the Texas judicial system approved the introduction and use of standardized divorce documents in a 5-3 decision. The Texas Supreme Court’s decision was hailed by some low income advocates as an improved mechanism for poor couples to dissolve their marriages, but has proven to be a growing burden upon many lower courts as well as these households. The availability of forms without proper understanding of the language or the appropriate legal procedures has led to widespread confusion which has actually increased the ultimate costs to many of these litigants. As a family law attorney in Austin, I understand the need for individuals to keep legal costs low, but going through a complicated process like a divorce without legal counsel can often be more costly than hiring a competent attorney.

The decision by the Texas Supreme Court may have been based on the belief that standardized forms would streamline the process for family courts, and expedite the resolution of the more than 80,000 divorces occurring annually. The forms approved by the Supreme Court on Nov. 13, 2012 were a result of an 18 month long process. The forms were designed to be specific to Texas law and usable by anyone in a marriage without children. The document creators intended the forms to be used by individuals of all households, but experts warn that only those couples without significant assets and cannot afford an attorney should utilize them.

Numerous complications can arise from the use of these forms if one or both parties possess assets like 401k plans or retirement accounts. Without adequate legal representation, a litigant could be passing up thousands of dollars in potential benefits.
The real cost for those seeking a do-it-yourself divorce is often not a result of lost assets, but rather the costs of a botched legal procedure. Many filers may misunderstand the language and present answers that are inaccurate. This can often result in extended legal proceedings and greater legal costs when an attorney may be required to resolve divorce proceedings that have become tangled due to improper completion of divorce papers.

The solution presented by the Family Law Cares project is to match pro bono attorney with indigent households. This project helps attorney who are willing to work pro bono on divorce cases communicate more effectively with one another, thereby allocating available legal resources to individuals who desperately require them. The Family Law Cares project also helps introduce new law school graduates to the legal system by giving them the opportunity to work in courtrooms and aid these couples.

As a family attorney in Austin, I realize that many couples who want to end their marriages try to take the option that presents the least up-front costs. While the forms that are available may seem attractive, there is often no substitute for experienced legal counsel.

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Filing for a Fiance Visa (K-1) and Spouse Visa (K-3) requires consular processing; that is, the immigration case is processed at the U.S. Embassy located in the country where the fiance or spouse lives.

Adjustment of Status (AOS) is a procedure that allows an eligible applicant to become a lawful permanent resident (green card holder) of the United States without having to go abroad and apply for an immigrant visa. This process is done within the United States and cannot be done abroad, just like consular process must be done abroad and not within the United States.

There are many additional protections and advantages in filing for adjustment of status (AOS) versus consular processing. If adjustment of status is available to you, it is often going to be your best option.

Adjustment of Status has many more benefits than consular processing because it offers: 1) faster processing times; 2) streamlined processing and less delays; 3) it provides you with the right to an attorney, which does not exist at most consular posts; 4) it offers better communication with officers who will be adjudicating your case; 5) if adjustment is denied, you have the right to review the application before an immigration Judge. In contrast, there is no real appeal from consulate adjudications; 6) you can get work authorization while the adjustment is pending; 7) There is no need for police clearances (this is required for consular processing); and, among other benefits 8) with adjustment of status, a green card is stamped on the applicant’s passport on the day of approval (green card arrives in the mail within two to three weeks.

In order to take advantage of the adjustment of status option, you must obviously first be in the United States and you must have entered the United States lawfully. Also, if you enter the United States as a nonimmigrant, you can be denied adjustment of status as a matter of discretion under the notion of what is called “Preconceived Intent” to immigrate. Preconceived intent means that the U.S. Citizenship and Immigration Services makes a determination that when you entered as a nonimmigrant, your intent was not to stay in the U.S. temporarily (the way you claimed you would when you applied for your visa), but rather, you entered with the intent to become an immigrant.
If you come to the United States using a nonimmigrant visa knowing you want to marry a U.S. Citizen and adjust, USCIS may find that you are guilty of visa fraud.

The Department of State has several rules to determine if an applicant has committed visa fraud. Although preconceived intent alone is not enough to deny adjustment of status in an immediate relative petition, it could still be used negatively against your case. When applicants fill out the immigration petitions, there are no questions asked about preconceived intent. That is one of the reasons why it is important to talk to an immigration lawyer before filing anything with USCIS.

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As an Austin immigration attorney, clients often ask me family law questions. There are a lot of areas where family law and immigration law intersect.

I am often asked: Do immigrants who are out of status or who have been deported still have to pay child support?

Yes! Child support payments are your responsibility to your child and it has nothing to do with your immigration status. Many parents do not pay their ordered child support after a divorce. This creates hardships on the parent who has the child most of the time and it also creates hardship on the children involved. There is myth out there that in the state of Texas, if you don’t pay child support, the state will. This is Not true. The state of Texas will not make child support payments for you. Not paying child support may deprive your child of things they need because the custodial parent may not be able to afford everything on his or her salary alone.

Not paying child support means that you can be thrown in jail for up to six months. The legal basis for this punishment is that not paying child support means you are in contempt of Court — it is a violation of a Court order.

If the contempt of Court hearing can result in a jail sentence, and you can prove your income is very low or non-existent, then you can request that an attorney be appointed to your case.

The best thing to do if you think you will be moving out of the country due to your immigration status is to hire a child support modification lawyer. A lawyer can help you in modifying the amount of child support you pay and avoid a jail sentence. Family Courts, at least in Travis County, do not typically inquire about people’s immigration status, which is why it is always better to seek a modification than to ignore your child support payments.

If your child’s parent owes you child support, you should hire an enforcement lawyer regardless of your immigration status. A lawyer would help you by filing a petition in Court asking for the person who owes you child support to pay it with interest.

Regardless of your immigration status, you should always consult with a child custody lawyer or family law lawyer to make sure your child support obligations are met.

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