NY Times Details Problems with Immigration Judges

A New York Times article yesterday shows how frustrated the Federal appeals courts have become with the quality of work from many Immigration Judges. Importantly, the article notes that many Federal judges feel that a huge workload has been shifted from the Board of Immigration Review to the Federal appeals court.

Draconian Immigration Bill Passes House

A bill that could make felons out of binational couples passed the House of Representatives this week. The measure would make it a crime to overstay a visa or to help undocumented aliens do so. Currently, it is a civil violation to do so.

According to Sarah Sohn at Immigration Equality, an immigrant could be considered in violation of the bill one day after their visa expires or if they forget to inform the government about a change of address. In addition, the bill could lead to jail sentences of up to five years for family members, partners, churches, friends, and lawyers because it redefines "smuggling" so broadly.

While the bill has yet to be introduced in the Senate, it could easily be tacked onto a larger bill, especially since the White House supports it.

Queer Law Watch’s Top Issues for 2005

There have been a number of changes across the country in areas effect the LGBT community this year. We've seen steps forward and backward and, perhaps more importantly, a broadening of the legal issues where sexual orientation comes into play.

In keeping with my blog's focus on LGBT immigration and family issues, here is my first annual round-up of the five biggest developments in these areas for 2005.

Marriage, marriage, marriage. Whether it was the legislative success in California or the defeat in Texas, same-sex marriage tops my list for the biggest legal development this year. Not only because of the substantial changes it creates to the rights of same-sex couples, but also because I predict that the same-sex marriage issue will be one of the biggest issues in national politics for many years to come.

Parental Rights. Courts in several states--—including West Virginia--—recognized parental rights for same-sex parents this year. This is an incredibly important development for queer families and their children as it gives more stability and support to same-sex parents. Meanwhile, the US Supreme Court let stand Florida's ban on "homosexuals" adopting.

REAL ID Act & Asylum. Early this year, a new Federal law went into effect which changes the standards used to grant or deny asylum. As I've written about before, the changes will mean many queer applicants will be denied asylum. The main reason why is because the Act allows an Immigration Judge to reject an asylum if there are any discrepancies in an applicant's narrative even when--and here's the important part--the discrepancy is immaterial. In other words, if an applicant first says that he was carrying a brown suitcase but it turns out it was actually black, an IJ can use that discrepancy to determine credibility. While this example is somewhat absurd, it is useful to show how little the drafters of this law understood about refugees and how a story can change over time as they recover from post-traumatic stress disorder.

Trans rights. Suddenly this year, transgender rights hit the mainstream. (Here's a case in point.) There were more resources and more discussion of transgender issues and several positive legal developments. Of course, there were many more legal setbacks, but the point is that trans issues were now coming to the forefront.

LGBT Youth & Schools. High school students this year stood up for their rights in a big way. The Advocate even named high school senior Kerry Pacer their Person of the Year, but examples of young people coming out and being proud were everywhere this year and led to important court victories.

Appeals Court Denies Asylum for Gay Zimbabwian

A federal appeals court ruled against asylum for a gay man from Zimbabwe Tuesday, saying that he had not experienced past persecution for "being gay" but rather for his conduct which included having sex with two male classmates.

In both instances, the opinion says, there was enough evidence to suggest that the man, William J. Kimumwe, was in trouble with authorities for reasons other than his homosexuality. For example, in the second instance, the court says that Kimumwe was arrested because he had "got [his classmate] drunk...and slept with him", suggesting that the sex was coerced.

Judge Heaney dissented from the majority's ruling, saying that both the majority and the Immigration Judge discounted evidence of past persecution and "mischaracterized" the record. For example, the evidence did not suggest that the sex with his classmate was coerced; rather, Kimumwe's testimony showed that both he and his classmate both got drunk and had sex and that the sex was not compelled in any way. Further, Judge Heaney wrote, "Importantly, the IJ also overlooked Kimumwe's unrefuted testimony that the officers who arrested him made it clear he was arrested for being gay, not for having sex. Thus, the IJ's finding that Kimumwe had not established past persecution based on his status as an openly gay man is not supported by substantial evidence."

Finally, Judge Heaney wrote "Our court ought not sanction the return of an openly gay man to a country whose leader has vowed to rid the country of homosexuals. Zimbabwe's government's past conduct, both generally and with specific reference to Kimumwe, indicates an intent to further persecute him on the basis of his sexual orientation."

The majority's opinion is troubling because it seems to go out of its way to allow the IJ's decision to stand even though it does not appear to be supported by the record. Unfortunately, the trend of late has been to deny asylum applications based on LGBT status even in a case like this where the specific facts of the case and the general conditions of the country would seem to obviously support asylum.

NY Appeals Court Says No to Gay Marriage

A New York appeals court today overturned a lower court's ruling by Judge Doris Ling-Cohan that would have permitted same-sex marriage in New York. The court said, among other things, that Judge Cohan had overstepped her authority by "rewriting" legislation, something that historically is done by the legislature, not the courts.

Some troubling language in the decision: "Marriage...is based upon important public policy considerations and has been recognized as a fundamental constitutional right.... These considerations are based on innate, complementary, procreative roles, a function of biology, not mere legal rights. '[T]he reasons justifying the civil marriage laws are inextricably linked to the fact that human sexual intercourse between a man and a woman frequently results in pregnancy and childbirth.'"

As we've known all along, this case is going to New York's highest court, the Court of Appeals, where it will probably be consolidated with several other same-sex marriages cases currently winding their way through the state courts.

Groups File Briefs in Custody Case

Several groups filed friend of the court briefs yesterday in a Delaware care involving custody of triplets born to a lesbian couple, including Lambda Legal and the National Center for Lesbian Rights.