LGBT
Immigration Issues
Bryon M. Large, Senior Associate Attorney
Kolko & Associates, P.C.
(303) 371-1822
BL@kolkoassociates.com
What is a “marriage?”
 A Marriage is a Marriage
 Not a Civil Union
 What about Common Law Marriage?
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
Good Law (Post-DOMA)
 United States v. Windsor, 570 U.S. __ (2013)
Immigration Benefits
 Immigrant Visas
 Fiancée Benefits
 Dependent Children (Step-Children)
 Non-Immigrant Benefits
 Benefits in Removal Proceedings
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
Special concerns with
adjudications
 New area for adjudicators too!
 Combating fraud suspicion and allegations
 Sham marriages
 Past marriages
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
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
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”)
Case Law
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
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”
Hernandez Montiel vs. INS
225 F.3d 1084 (9th Cir. 2000)
 Gay men with female sexual identities constitute a
particular social group
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.”
Matter of S-E-G24 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
Matter of M-E-V-G-; Matter of W-G-R26 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
Document Issues
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