Articles Posted in Family Law

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children-63175_640-300x216Lawmakers and immigration enforcement officials gathered in a Senate Committee on Homeland Security hearing on Tuesday to discuss a proposal to change the policies surrounding the detention of undocumented immigrant children.

The Trump administration is presently working on revising the rules governing the detention of undocumented children. At present, a 1997 settlement known as the Flores Agreement (from Reno v. Flores, 507 U.S. 292) limits a child’s detention to no more than 20 days. The proposed changes to the policy, however, would indefinitely extend the possible detention period for children and families caught unlawfully entering the country.

Those behind the revisions cite the tremendous case backlog in immigration courts and explain that the new detention policy would give courts the time they need to process and resolve the cases currently in pendency.

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book-1822474_640-300x206With the federal government detaining undocumented immigrant children at federal facilities across the country and, there have been an increasing number of reports of children being deprived of basic health services and due process. A group of detained immigrant children, many of whom came to the US to seek asylum, claimed in a complaint that the Office of Refugee Resettlement (ORR) has been blocking them from accessing legal counsel, giving them psychotropic drugs against their will, and discriminating against disabled children.

The lead plaintiff in the case is a 13-year-old Guatemalan child known only as Lucas R. He was brought to a detainment facility in Arizona upon his arrival at the border in February 2018. While he has family waiting for him in Los Angeles—a sister named Madelyn R.—he was later transferred to the Shiloh Residential Treatment Center in Texas. Lucas is currently waiting to be released to his sister.

Lucas’s experience at the Hacienda del Sol Facility in Youngtown, Arizona is a harrowing tale. The 58-page complaint claims that the child “became depressed, fearing that ORR would never release him to his family” during his confinement at the facility. Lucas told the staff about his condition. ORR staff responded by giving him psychotropic drugs to treat his “moderate” depression – a move made with familial consent.

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writing-1149962_640-300x200In a recent court filing, the US Department of Homeland Security (DHS) reaffirmed its intention to rescind the H-4 rule, which provides employment authorization to spouses of certain migrant H-1B visa holders who are legally living in the United States and are on the path to acquiring a green card. The DHS declared that its “intention to proceed” with the rescission rule proposed last year “remains unchanged.”

The H-1B visa is issued to foreign workers in specialty fields like chemistry, technology, and medicine among others, allowing them to work and stay in the country for as long as they remain employed. A number of H-1B holders have spouses and children who are often unable to move to the United States on their own merit. These immediate relatives can follow the H-1B holder to the U.S. through the H4 visa, a dependent and nonimmigrant visa issued by US Citizenship and Immigration Services (USCIS).

However, the DHS announced in December of 2017 that it would be rescinding the H-4 rule in an effort to align itself with the priorities outlined in the “Buy American, Hire American” executive order signed by President Trump in April last year. The DHS was supposed to publish its proposal to rescind the H-4 as soon as February of 2018, but this was since postponed twice.

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woman-792162_640-300x200U.S. Citizenship and Immigration Services (USCIS) has published a final immigration memorandum updating its newly implemented unlawful presence policy, which changed how USCIS determined whether foreign students and participants of student exchange programs were lawfully in the country.

According to the memo, F- and M-visa holders will not be deemed as being in the country unlawfully while waiting for their visas to be reinstated, so long as they file their reinstatement applications no longer than five months after their status expires.

If, however, their reinstatement application is denied, they will automatically begin accruing unlawful presence the day after being notified of their denial. Likewise, J-1 visa holders with reinstatement applications that are approved will not accrue unlawful presence.

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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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