California Immigration Lawyer Blog

As a California immigration lawyer who files many asylum cases, I am used to thinking of a the United States as a place of refuge and to documenting the horrible country conditions of other countries. I have successfully represented applicants for asylum who feared staying in their countries because while serving in their countries' armies, they were harmed on account of their sexual orientation.

It is therefore rather surprising to come across a story of a U.S.soldier who is fleeing to Canada because she fears harm in the U.S. Army on account of her sexual orientation. According to CBC news, U.S. Army Pte. Bethany Smith fled Canada in September 2007 from a U.S. Army base in Fort Campbell, Ky. She applied for refugee status in October 2007, saying that she was harassed and threatened by fellow soldiers over her sexual orientation and feared that her life would be in danger if she were deported and returned to the army. The Canadian authorities initially rejected in her claim in February 2009. However, on appeal, the Federal Court of Canada held that the refugee board must reconsider the case again because the Board made several mistakes in initially reviewing her claim.

The Federal Court's decision noted that the refugee board failed to fully consider the evidence pertaining to the situation of gays and lesbians in the U.S. Army to determine whether Pte. Smith could have availed herself of protection in the United States. The Federal Court also noted that the Board failed to determine whether Pte. Smith would be persecuted on account of her social group - as a lesbian in the U.S. Army if forced to return. There were other errors mentioned in the decision.

It is sad that the U.S. policy of "Don't Ask, Don't Tell," is the basis of an asylum claim in Canada. Pt. Smith was only 19 years old when she fled to Canada. From everything I read, it appears that she wanted to serve in the U.S. Army and no real desire to leave the United States. At a time when we apparently need people to serve in the Armed Forces and in fact give non-citizens a way to immigrate to the United States faster for their service, it seems ridiculous that an American citizen should have to leave. It it is time to eliminate the "Don't Ask, Don't Tell" policy.

The issue of applying or having applied for Selective Service comes up a lot when applying for naturalization. Recently I have seen a number of clients at my San Francisco office who have not registered for Selective Service. I will write a couple of blog posts on the issue of Selective Service and naturalization.

Applicants for naturalization need to establish good moral character for the five years prior to the filing of the naturalization application (Form N-400) up to the time the oath of allegiance is taken. Although there is no specific law, USCIS (United States and Citizenship Services) interprets a failure to register for Selective Service as an act that reflects negatively on an applicant's ability to establish good moral character.

The Selective Service agency is the agency responsible for maintaining a list of men who are eligible the military draft, if we should have one. All men, even if in the United States illegally, between the ages of 18-25, must register for Selective Service. (If you 26 or older, you are too old to register.) A Social Security number is not required to register. The only exception to the registration requirement is for men who are in the United States in valid non-immigrant status (i.e., students on F-1 visas or professionals on H-1B visas). Women are not required to register.

You may register for Selective Service online on their website or you can use the link at the bottom of this page. You may also register at a post office. In addition, you can register if you are applying for a student loan by completing a Federal Student Financial Aid (FAFSA form). You can check "Register Me" on Box #22 of that form, and the Department of Education will furnish Selective Service with the information to register. Finally, if you are applying for adjustment of status in the United States, you will automatically be registered upon USCIS' acceptance of your Form I-485. (The last page of the form indicates that you agree to have USCIS transmit your information to Selective Service.)

If you are not sure whether or not you have registered with Selective Service or you want proof that you have registered, you may go to their website and click on the link to check registration.

My next few blog posts will discuss how to obtain a status letter from Selective Service and what to do if you have not registered with Selective Service.

Yesterday President Obama announced the elimination of the HIV inadmissibility ban at the signing of the Ryan White HIV/AIDS Treatment Extension Act of 2009. Currently individuals with HIV are inadmissible to the United States. As part of the new legislation, individuals with HIV will be admissible and individuals seeking permanent residence will no longer have to be tested for HIV as part of the medical exam that is given to all new immigrants.

The final rule was published yesterday and goes into effect on January 4, 2010.