Month: May 2014

Not too long ago, I experienced the impact of the decision of the U.S. Supreme Court in the case of U.S. v. Windsor. While going over my snail mails, I found a handwritten envelope from a certain Eddie claiming to be member of a church group in Glendale CA. I browsed through a 5-page handwritten letter and realized it was not an inquiry letter the likes of which I typically receive, but a hate mail. It was five pages of venomous ramblings, barely coherent, condemning me for being a supporter of same sex marriages. The letter writer said, “ I consider you evil Ms. Tancinco because you support and help same sex marriages, in which God Yahweh don’t accept same sex marriages and homosexual is a sin.” In addition to judging me as evil, the letter sender declared that, “God Yahweh can give you early death..” and will “punish you with your future death.”

Should I take this seriously? Maybe not. I respect each person’s right to speak his mind and espouse his own particular set of beliefs. The letter sender may just be expressing his opinion. But after the shooting at the Isla Vista, Santa Barbara, such expressions of disgust and malevolence may be accompanied by the infliction of physical harm and violence.

It is easy to say that the letter should be ignored. Being human, however, it is difficult not to take offense at the slanderous insinuations and judgments made for being an advocate of same sex couples’ rights.

I realize, of course, that in the greater scheme of things, this 5 page letter is nothing compared to what most of our lesbian, gay, bi-sexual and transsexual (LGBT) community members experience dealing with these types of individuals day in, day out, going through everyday life.

Religion and civil rights are distinct from one another. There is a reason why the founding fathers deemed it wise to separate matters of State from matters of religion. Each society must strive towards the ideal that each individual should have equal rights before the law, regardless of race, sex, religion, and yes, sexual orientation.

The Defense of Marriage Act (DOMA) passed by Congress in 1996, defined marriage as a legal union between one man and one woman. Back then, no states recognized gay marriage. In the past decade and more so, in the past year, several states now have legalized gay marriage. Over 100,000 same-sex married couples live in the United States; 36,000 of these couples are bi-national or partners of different nationalities, and about half of these married couples are raising children. Gay marriage is definitely an immigration issue to bi-national couples.

The Supreme Court in the case of The United States v. Windsor decided on June 26, 2013 that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman, was unconstitutional. The United States government now legally recognizes same-sex marriage. As a consequence of this ruling, bi-national same sex couples with partners in the Philippines or of Filipino nationals have filed petitions for immigrant visas or for fiancé visas.

Hostility towards same sex marriage

The Catholic Church and other religious institutions condemn same sex union as a sin and totally unacceptable. This condemnation of same sex couples certainly has the effect of marginalizing the members of the LGBT community, even though the Pope, in his public pronouncements, tried to be inclusive, by choosing to embrace and show compassion towards all gays and lesbians. Since it is totally unacceptable, supporting a good faith relationships in immigration petitions becomes challenging.

Proving that the marriage was not entered into solely for purposes of the green card is key to approval of spouse petitions. Just like opposite sex couples, it must be shown through supporting documents that both parties intend to establish a life together at the time of marriage. The subjective intention, which is to enter into such union for love and companionship, must be supported by objective evidence. This may include joint documents of assets or obligations to show a commingling of finances. A serious challenge may be faced if one of the parties to the same-sex relationship has not publicly disclosed their sexual orientation in the past because of the hostile environment at home and at the work place. Considering the culture and religious implications of a same sex union, admission of sexual orientation may not come easy. When there is no evidence of relationship with the petitioning spouse, the USCIS most likely would deny the petition.

Like opposite sex petitions, the non-citizen in same sex petitions may be petitioned as either fiancé or spouse. Since same sex marriage is not legal in the Philippines, fiancé visa applications are the applications typically filed. Another reason why fiancé visas are filed prevalently for same sex partners in the Philippines is that it would be more apt to apply for a fiancé visa than to apply for a visitors visa to enter the United States. In rare cases where the noncitizen is not in the United States, the same sex couple marries in a different jurisdiction outside the Philippines . If this happens, marriage petitions are filed.

Achieving Marriage Equality

Same sex marriage is fairly new. Even though it is legal, it takes a while for society at large to completely accept such unions, with all its rationale, implications, and consequences. In isolated cases, there are those whose task is to determine which same sex union applications should be granted or denied who may not be immune to personal prejudices and bigotry. To assess each same sex relationship in the same manner, and under the same legal paradigm as any other opposite sex relationship should be our goal. It is important to steer away from hateful speech and condemnation, understand that discriminating against the LGBT community impacts greatly on how immigration laws are enforced, and ultimately, on whether or not marriage equality may, indeed, be truly achieved.

(Atty. Lourdes Santos Tancinco may be reached at law@tancinco.com or (02)721 1963 or visit her website tancinco.weareph.com/old)

Janice appeared for an interview before a consular officer at the U.S. Embassy. She was applying for an immigrant visa based on a petition filed by her U.S. citizen daughter Amelia. When asked whether she violated any law during her prior trips as a visitor to the United States, she answered in the negative. The consular officer denied her the visa. She was told that she misrepresented herself during the interview and on her visa application when she concealed her past trips to the United States. The consular officer had access to information on their database showing that Janice had overstayed her visitor visa a few times. Janice committed the serious mistake of not being truthful on her immigrant visa application. She would now need a waiver to be able to apply again for the visa.

The husband Robert, on the other hand, had returned to the Philippines hoping to accompany his wife Janice back to the United States. He is a lawful permanent resident having obtained his green card while he was in the United States. Since Janice’s application for visa was denied, he had no choice but return to the US on his own. Upon entering the United States after his brief trip to the Philippines, the Customs and Border Protection (CBP) inspector placed Robert on a secondary inspection. He was allowed to enter the United States but he was also issued a Notice to Appear for his removal proceedings. The CBP inspector told him that he has a criminal conviction relating to a controlled substance that would render him inadmissible. Robert claims that this criminal case is based on an offense he committed many years back; and, that he had previously traveled to the Philippines and returned many times without any problems. He was taken aback by this CBP action and wished that he did not travel back to the Philippines. He is now facing the risk of removal or deportation.

Both Janice and Robert are suffering the consequences of their past violations of immigration and criminal law. Unknown to many, despite attempts to conceal unauthorized stay and criminal records, the U.S Department of Homeland Security has expanded its database system enabling different federal agencies to identify criminals and visa violators. What are these database systems? Who may be on the “lookout” list? How can one determine whether his name is on the lookout list and if the name was placed erroneously on the list, is there a way to correct this?

“TNT” Hot List

Unlike in the past, the Department of Homeland Security is now able to identify and target for enforcement action those who have overstayed their period of admission and who present a public safety and/or national security threat. The Immigration and Customs Enforcement (ICE), which is the enforcement arm of the DHS, has within its agency an office called the ICE Overstay Analysis Unit or the OAU. One of the significant function of the OAU is to analyze the biographical entry and exit records stored in a biometric system to support DHS’s ability to identify international travelers who have remained in the United States beyond their authorized periods of admission.

The OAU analyzes and validates two types of nonimmigrant overstay lists: (1) out-of-country overstays and (2) in-country overstays (ICO). The first pertain to visitors who stayed beyond their authorized admission period and subsequently departed the country. While the second list refers to visitors who remain in the United States with no evidence of departure or adjustment of status upon expiration of their authorized stay.

The out-of-country overstay violator is identified on this overstay list. It is intended to be used as a way to alert and notify Department of State consular officers and CBP officers of a traveler’s violation before he or she is granted a visa or re-entry to the United States.

Access to Database

Both the U.S. Embassies’ consular section and the CBP at the port of entry have access to the names on the database collected by other agencies; specifically, the list mentioned above from the U.S. Department of Homeland Security. There are several other database systems being utilized before a visa is issued or prior to entering the United States. Of particular note is the CLASS system at the consular section. This is a name checking system designed to interconnect with all consular affairs automated system that runs name checks and visa issuances. The information from the CLASS is derived from other consular posts, and, also from the various lookout lists and database of other agencies.
The other system being used is the Enforcement Operational Immigration Records/Automated Biometric Identification System or the ENFORCE/IDENT. This data system includes biometric information on individuals who have any civil, criminal, immigration and national security violations.
The database or lists being utilized by DHS and other federal agencies is accurate most of the time. Unfortunately, there are individuals on the list who may have been relieved of their offenses or immigration violations and whose relief may not have been noted or updated on the system. If one believes that an individual’s name was erroneously included in the list, there is a travelers redress process called the DHS-TRIP or the Travel Redress Inquiry Program. Many times, however, because of serious legal enforcement issues, and especially on national security issues, access to one’s record may be denied. If this occurs, an opportunity may be afforded during the immigration hearing or during the immigrant visa application to explain that the ground for removal or denial of visa no longer exists.

In the same way that laws change, enforcement of laws are also constantly changing with better technology. It is no longer a safe assumption to think that since one has gotten away with violations in the past, then one will already be immune from the consequences of such violations in the future. Nowadays, technology provides easier accumulation and access to records. With or without our knowledge, with or without our consent, good or bad, information about everyone is digitized and once it is in the digital world such information becomes public that is readily accessible.

(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 721 1963 or visit her website at tancinco.weareph.com/old)