GAME CHANGER: Immigration Service to Accept Green Card Applications Filed by Married Gay & Lesbian Couples and Hold Them In Abeyance

[Updated 3/28/2011: Abeyance policy is national, but is temporary pending final legal guidance. Updated 3/29/2011: “Confusion Over Policy on Married Gay Immigrants,” New York Times.]

As was reported Friday by Newsweek/ The Daily Beast, two United States Citizenship and Immigration Services (USCIS) District Offices have confirmed that alien relative petitions and green card applications filed by married same-sex couples will not be denied. Instead, final decisions on these applications will be held in abeyance, i.e. put on hold.  This historic first seems to be directly linked to the Obama administration’s change of position on DOMA announced on February 23.  The DOMA Project welcomes the new and exciting potential this presents for married gay and lesbian couples to obtain legal status and prevent deportations of the foreign partner. However, in this new and rapidly changing legal environment, we urge attorneys and binational couples to proceed with an abundance of caution.

The significance of the “abeyance” policy is two-fold: first, it means that petitions and applications that normally would have been denied because of DOMA, will now remain in “pending” status, and second, this status will give protection and benefits to the applicant for an indefinite period. The “abeyance” policy, it is presumed, will put these cases on hold while the ultimate fate of DOMA is determined by a decision of the Supreme Court or through repeal by Congress.

This tremendous news comes after months of advocacy by national immigration law and policy groups, LGBT organizations and advocates including The DOMA Project. While The DOMA Project has focused primarily on stopping deportations, we have also engaged in wide-ranging advocacy and provided legal representation in related cases where couples are fighting separation or exile.

As readers of this site know, since July 2010 we have filed more than a dozen alien relative petitions on behalf of gay or lesbian American citizens for their spouses as part of our Stop The Deportations campaign.  Our campaign has been successful in slowing and stopping several deportations through a combination of legal strategies and aggressive advocacy efforts, including reaching out to members of Congress and working closely with executive branch agencies.

In the coming days and weeks, the attorneys at Masliah & Soloway, who launched The DOMA Project last year, will be filing green card cases on carefully chosen behalf of several same-sex binational couples who are not currently facing deportation proceedings.  We have been working for months with hundreds of binational couples in an effort to determine which couples are in the best position to file green card petitions and applications. For some couples, we believe that time is now.

This latest evolution in our strategy to aggressively fight for binational couples is the culmination of an 18-year long commitment by our law firm⎯led by two gay immigrants⎯to fight for an end to discrimination against lesbian and gay binational couples.

USCIS District Offices to Accept Green Card Applications 
from Gay Couples and Hold Them in Abeyance

What does this mean for an estimated 36,000 binational couples?

Some married gay and lesbian binational couples will now have an opportunity to take a major leap toward full equality under our nation’s immigration laws.  However, it is important to remember that DOMA is still the law of the land and despite this tremendous news, filing green card applications in this uncertain environment could result in a foreign spouse being placed in removal (deportation) proceedings. For that reason, no couple should make a move toward marrying or filing on the basis of the marriage without first consulting an immigration attorney with specific expertise in both LGBT immigration issues and the developing landscape of DOMA.

Generally, the risk all couples face if they chose to file is that they may ultimately be placed into removal proceedings. Because the announced policy is one that was developed at the discretion of the District Directors of the offices involved, it is not yet known whether this policy will be extended nationally nor whether it may be changed in the future. Again, it bears repetition that couples and their attorneys must proceed with extreme caution.

This development will have the greatest impact on two groups of couples:

1. Married gay and lesbian couples where the foreign spouse lawfully entered the United States but is now an “overstay” and without lawful status.  For these couples, the filing of an alien relative petition and application for adjustment of status to permanent resident should automatically give temporary lawful status to the foreign spouse for the duration of the period that the case is pending. If these applications are in fact held in abeyance until DOMA’s final demise, this could mean that couples who have wrestled for years with the nightmare of deportation, separation and instability caused by a lack of lawful status may now be on the verge of a new reality.  The foreign spouse will not only receive (temporary) lawful status, but also employment authorization and potentially other benefits, as long as they have a pending green card application.  Unfortunately, despite the temptation that this will present to many couples, for many it will be better to wait until there is greater certainty about this policy and the future of DOMA.

2. Married gay and lesbian couples who are already facing removal (deportation) proceedings. It is now likely that we will be able to stop virtually all deportation proceedings involving married gay and lesbian couples who have filed green card petitions/applications and who are, but for DOMA, otherwise eligible to receive a green card based on their marriage.  Even couples in removal (deportation) proceedings must proceed cautiously when considering whether to marry and file a green card petition/application based on that marriage.  However, unlike those who are not in proceedings, the risk of deportation is very real, and the likelihood is that this new development will provide protection to almost every couple facing deportation, if they are currently in proceedings.

There is light at the end of the tunnel for binational couples.  The individual stories of binational couples suffering separation, exile or the threat of deportation continue to be our most important weapon in the fight against DOMA.  There is still a long road ahead before we achieve full equality and we cannot be complacent.  

Please contact us at stopthedeportations [at] gmail.com if you want to get involved in our work or if you have any questions about the new “abeyance” policy.

[Update: March 29, 2011: It now seems certain that the temporary national abeyance policy announced March 28, 2011 will end shortly. Government attorneys working on final guidance suggest that USCIS will retain case-by-case discretion but will not be permitted to put on hold indefinitely all green card applications filed by married gay and lesbian couples.  The DOMA Project will continue to advocate for a uniform abeyance policy, for the interim period while DOMA continues to be enforced.]

CNN: Argentine Lesbian Escapes Deportation Until Status of Same Sex Marriage Made Clearer

“An Argentine woman living illegally in the United States after overstaying her tourist visa will not be deported until the legality of her same-sex marriage is made more clear.
Judge Terry A. Bain and government attorneys agreed Tuesday to halt deportation hearings in Manhattan’s immigration court for Monica Alcota, 35, who came to the United States from Argentina more than 10 years ago.
Alcota and Cristina Ojeda, 25, a U.S. citizen, were married in Connecticut in 2010 and are arguing that their marital status should allow Alcota permanent residency, their attorney, Lavi Soloway, said. The Connecticut Supreme Court has ruled that gay and lesbian couples have the right to get married.
Soloway said no specific reason was given for the judge’s decision to delay the hearing, but added that Bain and the government attorneys were in agreement with several general reasons, including President Obama’s direction to the Department of Justice to enforce, but not defend, Section 3 of the Defense of Marriage Act (DOMA). The act defines marriage as the union between a man and a woman.”

Henry and Josh Speak About Their Fight Against DOMA and Deportation on WZBN-NJ News

This is the best quality video we have at present. We will update this post at a later date.

http://www.facebook.com/v/10150133120614911

Married Binational Lesbian Couple Forced into Exile with 3-Year-Old Matthew Because of DOMA

I knew it was going to be a magical year when I stood at the top of the Hill in South East London with my friends, watching the fireworks above Central London on NYE, and as the bell chimed 12, it started to snow. Precisely at midnight.

Three weeks later, having just returned from travelling in Borneo, I was feeling bored one evening, so decided to head out to a women’s night with some friends. As I recall, they took a bit of persuading but eventually a plan started to take shape and they arrived to pick up my roommate and me. Becs was in the back of the car. We had met a few times in 2009 and socialized with the same group, but our communication had been limited to saying hello in passing. (Of course, I’d always thought she was hot!)  Neither of us were looking for a relationship at that point. I wasn’t that evening in January either, but wonderfully, cupid struck.

From that moment on Becs and I were inseparable. We moved in together shortly afterwards and Becs was there proudly holding my hand and surprising me with a room filled with balloons as I celebrated my 30th birthday with my nearest and dearest.

Becs job was in transition (coincidentally she worked in the same building as I did, although for a different company) and we didn’t know where she would be, so we were initially living for the moment, not knowing where our time together would take us. I also knew that Becs had a 3 year old son and was arranging the custody situation.

We decided to take a weekend trip to Amsterdam in March 2010. I’ll never forget that weekend; the hotel was diabolical. We had to shower in a cupboard within the room and the room itself was at the top of about 4 wonky flights of very steep stairs AND the size of a postage stamp. But the view of the canal was breathtaking and it was this weekend that Becs told me that she loved me, and I in return told her that I loved her too. (Unbeknownst to me, Becs had spent much of my birthday party telling my family this very fact!)

If I am honest, we knew from the start we were falling in love with each other, but it was scary to admit it not knowing where the relationship would go. We did know that we wanted to make it work – no matter what. We’ve both had long term relationships before, but when you meet the love of your life, your soulmate, the person for you – you just know.

Fast forward to May, Becs although in the UK on a Tier 1 Highly Skilled Migrant Visa, has to go back to Texas to sort out the custody situation and is required to remain in Texas throughout the proceedings. We don’t know how long it’s going to take.

Meanwhile, I stay on in the house in London and continue to work. We survive each day by emailing and Skyping at night. You know, they should employ us as laptop testers, we put our two through some serious use. Every single night without fail, we would Skype and fall asleep with our Skype up and running on our beds, so we could be as close as we could be. I would love waking up in the morning and watching her sleeping – but equally would be reminded with overwhelming sadness at not being with her. We would potter around at the weekend, doing jobs around the house and chit chatting to each other as though we were in the same room and watch movies together, starting them on our laptops at exactly the same time, whilst keeping our Skype windows open so we could see each other’s reactions. I’d take her on my laptop to friends houses and the pub. And don’t get me wrong, whilst Skype is marvellous – it’s no substitute for the real thing.
The little things that others take for granted are so important, like being wrapped up in a hug at the end of a difficult day, taking in your partner’s familiar smell and just knowing things will be OK, a little cheeky wink while you are out socialising with friends, being able to fall asleep at night in the arms of your loved one, sharing the washing up, or even arguing about who wants to do it!
Skype, in fact, allowed me to be there to help celebrate Matthew’s* (my step-son) 3rd birthday. Though it would have been a much happier event if the group picture had been of me with the rest of the family, and not the family and a computer screen.
Unable to bear being apart, I flew over for 8 precious days with Becs in August 2010. On the 21st of August, in Becs’ Mom’s living room and in front of her Mom, Becs got down on one knee and proposed to me (I actually thought she was giving me a tacky picture frame as a present and making a big ol’ deal out of it!!) And as my friends and family will agree – I’ve NEVER been happier.

It was a tremendously sad day when we had to part and I had to hide myself in the toilets of the airport once through security until I could stop the tears, but we were hopeful there would be some resolution on the custody case.

Unfortunately, this was not to be. So we made a decision – that if Becs was going to be in the U.S. for a considerable amount of time – I would be there with her. Thinking this would be a straightforward process; I did a bit of research and was gobsmacked to see that as a couple in a same sex relationship, we didn’t have the same rights afforded to us as heterosexual couples do. Heterosexual couples could apply for a fiancée visa, sponsor their partner; they could in essence just order a mail order bride from the internet – and Becs and I, in a loving and committed relationship with children involved, we’re not afforded the same rights. How is it that Becs, a tax paying, law abiding U.S. citizen cannot sponsor her fiancée to be with her?

I think this was about the same time the ‘It gets better’ Campaign was being launched after all those tragic suicides and all I could think to myself, after discovering there was NO way for us to be together was, does it? Does it get better?

Finally in November, we couldn’t bear the 6 hour time difference, the late nights; emotionally and financially it was taking its toll on our family. I handed in my notice, moved from our house, back in with my mother (at 30, having moved out at 16, this was a pretty desperate thing to do) and applied for a B2 Tourist Visa. We met the criteria as far as I was concerned.

Having lived in the UK for all of my life – I could show strong ties to the UK. So armed with my declaration that stated I absolutely didn’t want to live in the U.S., but that my partner was going through a custody battle so I wanted to be there to support her, the fact she had a UK Tier 1 Visa, and the fact we had a home to return to, and of course her job – I applied. It was a lengthy and fairly intimidating process and I was immediately turned down for not showing strong enough ties to the UK. I broke down outside the embassy in London. The fact hit me, I couldn’t be there to hold Becs’ hand during one of the most difficult and stressful times of her life.

I had to return to work immediately afterwards, but was sent home by my boss when I got in; she could see I was devastated. I didn’t even need to say the words to Becs, when I had called her from the pay phone outside of the embassy, she could tell by the way I was breathing.

That weekend, I shut myself off from everybody. I couldn’t see an end to this depressing way of living. Ultimately, we want our family to be in the UK – but if we can’t in the meantime, then we should be allowed to live/stay in the US – just as any other heterosexual couple can. WE should be allowed to make that decision based on what is best for OUR family.

Immediately after the B2 Visa denial, I applied for ESTA. Their website said they had to consider it because of my B2 denial. And they got back to me a day later confirming that I could enter the US, but that the final decision would be made at the border. They would let you spend your hard earned money, to be met at the border and sent home. I can’t even think of anything crueler.

Now, I despise flying. I have a huge fear of it, and rely heavily on valium to travel, but even the valium wasn’t helping my nerves. I flew via another state to break up the flight to make it easier, but it was literally the most nervous I have been, knowing that they could want to question me further and had every right to send me back on a flight that very day. It was a strange mixture of anxiousness and desperation to see my fiancée. I was terrified of my own reaction to the news I wouldn’t be allowed in – and I think that my friends and family were too.

I don’t know if God or somebody up there was looking out for us that day-but thankfully it passed without incident. However, I don’t expect it to be like that next time and I spent a few days trying to get over the stress of it and relax and be with my family again.

We spent 3 months together, in her Mom and stepfathers house, whilst we were tying up the legal arrangements surrounding her sons custody. There wasn’t a day that didn’t go by, when I didn’t hear the familiar tick tock above my head, reminding me that I only had X amount of days left before I would have to leave without Becs. Every happy occasion was tinged with sadness, even as I sat and watched my Fiancée and stepson decorate the Christmas tree with my in-laws I couldn’t help but think to myself ‘what if we’re not together next Christmas’. The thought of having to part with your loved one at the airport is hard enough; not knowing when you will see them again is too much to bear. Becs and I married in Boston in December. We were virtually surrounded by friends and family – who were logged on around the world, watching via streaming video and overjoyed to be a part of our day. One day, when we have a home established somewhere and our family is settled – we will have the big wedding like the one we always imagined. Of course, our marriage will be recognised in the UK as a civil partnership, so it will be recognised whenever we are there, but nothing at all will change for us when we are in the States; as far as the U.S. is concerned, we’re strangers despite the fact we share the same surname.

There are 36,000 other families being affected in this way and I wish more would come forward and share their story – our voices; our stories NEED to be heard. Instead we live in fear that sharing our stories means we are more likely to be stopped at immigration and turned away.

My family loves Becs and I know that Becs’ family love me in the same way; we are so lucky to be surrounded by support. We are not criminals; we work hard and are good people. Why should our family suffer in this way? We consider ourselves extremely lucky in that we were only apart for 4 months; but during this time, we were officially homeless and our life was in limbo while we were forced to live in separate countries. The Defense of Marriage Act (DOMA) is to account for this.  DOMA must be defeated, please help us and tens of thousands of other couples facing separation and exile by contacting your Senators and members of Congress and urging them to support the Respect for Marriage Act.

QUEERTY: Possible DOMA Repeal Stops Deportation of Monica Alcota

From the website Queerty.

NY Daily News: Gay Woman Won’t Be Deported, Couple Can Pursue Their Marriage Based Case

Read full article here.

Judge Terry Bain put a hold on her deportation order while the couple waits to see if the Defense of Marriage Act is overturned and their green card application goes through. “She could have said no,” [Cristina] Ojeda said. “But instead she gave us time. Little by little, we’re building up hope and more courage.” The couple will be back in court in December to give the judge an update on their case.
“I was very pleased that both the judge and the government attorney treated the issue with seriousness and respect,” said their lawyer, Lavi Soloway.
“I think it was a demonstration of respect for Monica and Cristina and their marriage. They were kind and generous about it.”

Gay City News: Monica & Cristina Win in Court

The DOMA Project thanks Paul Schindler from Gay City News for coming to court with us this morning and reporting on this historic day. Full article here.

“It is almost impossible to overstate the significance of what happened in there,” Soloway said immediately after the hearing. “An adjournment based on an I-130. It would never have happened a year ago. I don’t think I even would have filed it.”
Describing the development as “huge,” Soloway also credited Bain with being “very kind, very generous” in her handling of the case.
Masliah echoed her law partner’s assessment, terming Bain’s action “benevolent”; she added, however, that it is also “realistic in light of recent developments.”

Queens Congressman Joseph Crowley: Obama Administration Should Halt DOMA Deportations

From the Advocate:

Rep. Joseph Crowley, a New York Democrat whose district includes a section of northern Queens, praised the government’s decision to suspend deportation proceedings against Alcota.

“In any case involving a married gay couple where one person is [a citizen] and the other person does not have legal residence, the government should suspend deportations,” Crowley told The Advocate in a brief telephone interview. “Ultimately the DOMA law needs to be repealed. But what’s paramount is that families need to be able to stay together.”

Crowley joins two congressional colleagues — Reps. Zoe Lofgren of California and Jerrold Nadler of New York — who have called on executive agencies to stop deportations involving married, binational gay couples who are denied permanent resident sponsorship rights as a result of DOMA.

Immigration Judge Grants Reprieve, Allows Monica & Cristina To Pursue Marriage-Based Immigration Case

Monica and Cristina expressed relief and optimism after leaving court

This morning, Monica Alcota and Cristina Ojeda, became the first married, same-sex, binational couple to successfully argue that deportation proceedings should be adjourned until their marriage-based immigration case had been fully adjudicated. The Immigrations and Customs Enforcement attorney and the Immigration Judge agreed that the couple should be given an opportunity to fight for a green card on the basis of their marriage and generously adjourned proceedings accordingly.  During their brief appearance in court, the discussion centered on an acknowledgement that the couple may have a long road a head of them, but that they should be allowed to pursue their case with U.S. Immigration and Customs Services, the administrative agency that processes marriage-based petitions.  Monica and Cristina will report back to the Judge in December to notify the court and the government attorney of the status of their case.  This is a tremendous victory for The DOMA Project and we hope it will signal a shift in how similar cases will be handled in Immigration Courts across the country.

Given the latest developments concerning the Defense of Marriage Act—the administration’s new positition regarding the unconstitutionality of Section 3 of DOMA, their refusal to defend DOMA in federal court challenges, and the introduction of DOMA repeal legislation in both Senate and House last week—there was a palpable feeling in the courtroom that we had collectively crossed a threshhold to a new era in which a lesbian couple’s marriage, while not legally recognized by the federal government, could at least be respected. And in according this couple the respect they deserve, the Immigration Court has moved us one small but significant step closer to equality.

Read more about Monica and Cristina’s fight against DOMA and deportation here and here.
Excellent reporting from The Adocate and Gay City News.

Monica & Cristina Will Ask Immigration Judge Tuesday to Terminate Deportation Proceedings

Last October we brought you the story of Monica and Cristina, a married, binational couple from Queens, New York who are facing the very real prospect of being torn apart by deportation. On Tuesday, they will become the first couple to face an Immigration Judge and challenge deportation proceedings in light of the Obama administration’s changed position toward the Defense of Marriage Act (DOMA).

What Monica and Cristina will do on Tuesday is historic. They will ask not only that Monica should not be deported to Argentina, but also that the government agree to terminate proceedings against her, so that they can continue their fight for a green card for Monica on the basis of their marriage without deportation proceedings hanging over them. Although this is the first time such a request has been made since the administration’s abandonment of DOMA, it is consistent with existing guidelines that require Immigration and Customs Enforcement (ICE) to exercise prosecutorial discretion in certain deportation cases. With this request to terminate proceedings, as with their fight against DOMA itself, Monica and Cristina are not asking for anything other than to be treated with fairness, dignity and respect.

Of course, if not for DOMA, this story would have ended long ago. Cristina, a U.S. citizen, would have successfully petitioned for Monica’s green card. It would have been a straightforward process regardless of the fact that Monica had over-stayed her entry as a visitor by many years. That is because our  immigration laws, which are designed to keep families together, prioritize spouses of U.S. citizens above all other relatives. DOMA unconstitutionally excludes Monica and Cristina from this process only because they are a lesbian couple.

When Monica and Cristina confront the cruelty of DOMA in Immigration Court this week they will be accompanied in spirit by two powerful allies: Barack Obama and Eric Holder. Monica and Cristina will be the first married, same-sex binational couple to confront DOMA in Immigration Court since the President and the Attorney General announced their conclusion that DOMA is unconstitutional and informed the Speaker of the House that the Department of Justice would no longer defend DOMA in federal court challenges. Monica and Cristina will argue that given the government’s new position, continued deportation proceedings against a married, binational same-sex couple are unfair, unnecessary and inappropriate.

Monica and Cristina have experienced an emotional roller-coaster for the past three years. Like other couples, they met, fell in love and decided to move in together. Almost immediately they struggled with Monica’s immigration status. Their hardest days came in July 2009. Cristina had finished grad school in Buffalo and the couple made one last trip there to move her remaining belongings to Monica’s apartment in New York.  They bought tickets for an express bus, but at the last minute they heard the announcement that the bus would be making local stops. A few hours into the ride, every binational couple’s nightmare unfolded before Cristina’s eyes.  In Rochester, Border Patrol officers boarded the bus for a routine check of identification papers. Monica was pulled off a bus and taken into custody.  That lead to Monica being held for more than three months in detention in Elizabeth, New Jersey.  Cristina traveled hours to visit Monica as often as possible, trying to keep her spirits up. Those visits were heartbreaking. Cristina and Monica was reduced to speaking on a telephone through a plexiglass window.  They tried to stay strong, but many tears were shed during those months. Finally an Immigration Judge ruled that she could not be deported without a hearing, and she was released from detention in October.

DHS’ receipt for Cristina Ojeda’s petition for Monica Alcota refers to Monica as the spouse of a U.S. citizen

It took a while for Monica to recover from the trauma of being held in what is essentially a jail, with limited privacy and very little contact with the outside world. After returning to their home in Queens, the couple started to consider their future together and decided to join Stop The Deportations -The DOMA Project. They participated in a rally for Marriage Equality in September 2010, their first ever act of public protest, carrying signs that read “Don’t Deport My Wife!” and “Recognize our Marriage as Equal.” They stood courageously with other binational couples at the podium as one member of that group eloquently spoke of the pain of living under constant fear of separation. Monica and Cristina themselves had married in Connecticut that summer, and decided to speak to the press and tell their story.  Cristina filed a marriage-based alien relative petition for Monica, the first step in a long-term battle for a green card. In October, The Gay City News published a detailed article featuring them and one other couple fighting deportation. Shortly after the Administration announced its new position on DOMA on February 23, Monica and Cristina were interviewed on the Spanish-language program Pura Politica with one of The DOMA Project founders, attorney Noemi Masliah, who is also a member of their legal team.

Tears of happiness on the wedding day

Monica and Cristina are fighting on behalf of all binational couples who live in fear that they might one day be battling deportation, surely the cruelest impact of DOMA.  Until it is repealed by Congress or struck down by the Supreme Court, DOMA will remain the law of the land. Monica and Cristina will be arguing to the ICE attorney and the Immigration Judge that it is wrong to move forward with the deportation of the spouse of an American citizen when the only obstacle to a green card for that person is a law that the President and the Attorney General believe is unconstitutional and refuse to defend.

Termination of these proceedings does not confer a legal “benefit” on this couple and it does not put ICE at any disadvantage; in fact, ICE can request that the court reinstate proceedings at any time in the future. Importantly, termination of proceedings does not contradict the Executive Branch’s constiutional obligation to enforce all laws including DOMA. Administrative termination is nothing more than an exercise of prosecutorial discretion, a necessity for prosecutors who must allocate scarce resources according to specific agency priorities and objectives. ICE, through several memos over the years, has established that sympathetic humanitarian circumstances and family unification are two criteria upon which a favorable exercise of prosecutorial discretion, including the termination of proceedings, can be based. Monica and Cristina will urge the government to look carefully at its own guidance for exercising discretion and apply those criteria to their case.

Prosecutorial discretion has been used by this administration for vulnerable groups (e.g. for widows of U.S. citizens in 2009 and for DREAM Act eligible young people in 2010) to further important public policy goals and address humanitarian need while corrective legislation has been pending in Congress.   With DOMA repeal legislation now pending in both the House and Senate, immigration advocates and some members of Congress (Rep. Jerrold Nadler and Representative Zoe Lofgren) are calling on the Obama administration to develop policy to halt deportations involving married, same-sex binational couples.  Monica and Cristina need your help to enlist the the support of more members of Congress to call on the administration to halt these deportations.

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.