01/26/13 - Courthouse News Service - Cuban Immigration Law a Boon for Brazilian
By ADAM KLASFELD
A quirky old law enables a Brazilian woman to backdate her resident status over
two years before she married a Cuban man in Florida, the 11th Circuit ruled.
Camila Silva-Hernandez overstayed her visa while visiting the U.S. for pleasure
in late 2001.
Nine years later, she married Eduardo Hernandez, a citizen of Cuba who became a
permanent resident in the U.S. on April 9, 2000.
The U.S. Citizenship and Immigration Services initially recorded
Silva-Hernandez's permanent resident status as of Aug. 27, 2010, the date of her
Silva-Hernandez filed a complaint stating that this determination violated the
Cuban Adjustment Act of 1966, meant to encourage the immigration of refugees
fleeing Fidel Castro.
A federal judge in Florida initially threw out Silva-Hernandez's challenge, and
the case went to the 11th Circuit on appeal.
As summarized by the Atlanta-based court, the 1966 law at issue "dictates that
the lawful permanent resident status of a non-Cuban spouse cannot predate the
date of the non-Cuban spouse's marriage to a Cuban national."
On Tuesday, a divided three-judge panel sided with Silva-Hernandez. Immigration
officials must issue Silva-Hernandez a new card saying "Resident Since" April 5,
2008, a date 30 months before her wedding, according to the ruling.
The Immigration Service had argued that this result would be "absurd." But the
majority insisted that their ruling was "no more absurd" than the 1966 statute
causing this outcome.
"Congress gave Cubans this special benefit, and giving a non-Cuban spouse the
same benefit is no more absurd than giving Cubans this special benefit,"
according to the unsigned opinion from Judges Susan Black and Stanley Marcus.
"Even if a particular application of the rollback formula may lead to an
arguably anomalous result (such as granting permanent resident status to a
non-Cuban applicant as of an earlier date than the Cuban spouse), we cannot say
that Congress could not have intended to apply a uniform rollback formula to all
applicants, Cuban and non-Cuban alike.
Indeed, there is nothing absurd about using a single rollback formula for all
CAA applicants, if only for greater ease of administration."
U.S. District Judge Orinda Evans, sitting by designation from Georgia, wrote in
dissent that the law intends to benefit the existing immediate families of
emigrating Cubans and relieve the administrative burden of refugees.
"Permitting a later married spouse to apply for adjustment under the CAA - ten
years after the Cuban himself has moved through the immigration process and has
settled in the United States - furthers neither of these congressional
purposes," Evans wrote.
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