Immigration, passport agency actions raise questions for same-sex married couples
DAVID TAFFET | Senior Staff Writer
Jenny Nolan left an abusive family in Ireland last April and came to Texas on a visa waiver, a program that allows people from certain countries to visit the U.S. for three months without a formal document.
Once she was here, Nolan met Lily Flores. The two fell in love and married in Collin County right after the Obergefell decision legalized same-sex marriage throughout the U.S. They immediately began the process of applying for a green card for Nolan, a document entitling the spouse of an American citizen to remain in the U.S.
Because Flores is a student, Nolan’s form was rejected at one point because immigration officials wanted proof that Nolan would have adequate financial support. The couple live with Penny Abbott in her Plano home. Abbott said she signed papers guaranteeing that additional support and Nolan was told to reapply — with no deadline given.
But on Thursday, Jan. 7, Homeland Security special agents appeared at Abbott’s house and arrested Nolan.
Abbott immediately hired Moises Medina, an immigration attorney, to represent Nolan. Medina told Nolan they’d have a few days before she’d be transferred from Dallas to an ICE facility, based on his prior experience in such cases.
Instead, immigration officers transferred Nolan that day. But instead of sending her to the Johnson County Detention Center just south of Fort Worth, where most people arrested in Dallas for immigration violations are sent, Nolan was transferred to Rolling Plains Detention Center in Haskell.
Normally, people sent to Rolling Plains, located about 200 miles west of Dallas near Abilene, are those who have committed crimes since arriving in the U.S. or who have a criminal record. Because she came to the U.S. on a visa waiver, Nolan was told she has no right to go before an immigration judge, and that she would be deported this week.
Abbot said that as Nolan was being checked into the facility, the guard looking at her paperwork kept asking her, “Why are you here?” Nolan had no answer.
Medina called the case unusual.
“She did everything right,” Medina said. “She’s not an enforcement priority.”
In November 2014, Thomas Winkowski, acting director of U.S. Immigration and Customs Enforcement, issued new policies for the apprehension, detention and removal of undocumented immigrants, setting new enforcement priorities.
“In general, our enforcement and removal policies should continue to prioritize threats to national security, public safety and border security,” Winkowski instructed.
The top priority for enforcement would be people suspected of being involved in terrorism, espionage or other threats to national security, people apprehended at borders entering the country unlawfully, those involved in street gangs and those convicted of a felony.
“She’s not in that group,” Medina said.
The next levels of priority would be those convicted of three misdemeanors other than traffic offenses, domestic violence, drug trafficking or driving under the influence or those who have significantly abused the visa or visa waiver program. Nolan didn’t fit those categories, either.
John Nechman, an immigration attorney not involved in Nolan’s case, said in cases of visa waiver, if someone changes his or her status within 60 days of arrival, immigration officials may charge fraudulent entry. But Nolan and Flores didn’t marry until almost 90 days after entry.
While Nolan overstayed her visa waiver, she had begun her application process before the waiver expired, Medina said, and doesn’t fall into the category of those who have “significantly abused” the process.
The final priority targets noted in Winkowski’s order are those who have been issued a final order of removal on or after Jan. 1, 2014. No warrants or orders had been issued previously in Nolan’s case.
Medina filed a stay the day after Nolan was picked up by ICE and he remains hopeful of her release, rather than immediate deportation without a right to appear before an immigration judge, as immigration officials originally threatened.
Again, Medina stressed that he has no evidence that ICE is intentionally discriminating against same-sex couples in immigration cases. Still, he noted, all the “unusual” cases, like Nolan’s, his office is working on all involve gay or lesbian couples.
That includes Darryl Minor’s case.
Minor applied for a visa to bring his fiancé to the U.S. from Peru. According to immigration law, in order to maintain the status of being engaged, a couple has to see each other once every two years.
Medina said exceptions are granted for extreme hardship. Because homosexuality is viewed negatively in Peru, Minor could only see his fiancé in Lima, the capital.
Because of the way the application process has dragged on, it’s now been almost three years since the Minor and his fiancé have seen each other.
Medina said they’ve started the process from scratch, something he doesn’t think would have happened had it been a straight couple.
Meantime, in the State Department
Another North Texas couple are also having trouble getting a federal agency to adhere to the Obergefell decision and treat them the same as a hetero couple: Marvin Vann Griffith hasn’t been able to update his passport to include his now-legal married last name. Passports are issued by an agency of the U.S. State Department.
After Marvin Vann married Clark Griffith, both men changed their last name to Vann Griffith. Texas changed their drivers’ licenses without question and Social Security, which is run by the federal Department of Health and Human Services, issued a name change.
So when Marvin Vann Griffith’s “amended” passport was returned to him with his last name still listed as Vann, he called the Passport Agency to get an explanation.
The first person he spoke to told him he needed a court ordered name change because his marriage license was rejected as insufficient, although marriage licenses are all the Passport Agency requires for name changes after marriage.
So Vann Griffith asked to speak to a supervisor. The supervisor told him, “not all states recognize these kinds of marriages.”
Vann Griffith called Rep. Marc Veasey’s office.
Jennifer Ward is the director of constituent services in Veasey’s Fort Worth office. She said the congressman made inquiries to the Passport Office on Vann Griffith’s behalf and the case is under review. But this is the first time she’s heard of a name change with a marriage license being rejected.
With cases like Nolan’s that Medina can explain only as ICE refusing to recognize a same-sex marriage and Vann Griffith’s, which was already explained to him as the
Passport Agency not recognizing his same-sex marriage, why is the federal government not following orders of the U.S. Supreme Court?
Medina has advice for couples applying for change of immigration status after marriage: “Contact an immigration attorney or an organization that handles these kinds of cases,” he advised. “Don’t try to do it all yourself.”
If picked up by ICE, he said, read every document carefully before signing anything. “And if you don’t understand, contact someone to help,” he said. “Voluntary deportation orders have very adverse consequences.”
This article appeared in the Dallas Voice print edition January 15, 2016.