New Jersey Family Law

ALPINE NEW JERSEY BERGEN COUNTY FAMILY LAW MEDIATOR

This case involves a review of the construction by the Board of Immigration Appeals of Section 203(a)(4) of the Immigration and Nationality Act, which grants a visa preference to qualified immigrants who are siblings of United States citizens. Did the court err in according Chevron deference to the BIA's decision that adopted children may not invoke this preference in favor of their biological siblings? The circuit panel holds that the District Court did not err and affirms.    Kosak v. Aguirre, Jr., etc., et al., Unites States Circuit Court of Appeals; 3d Circuit, March 11, 2008

WEST ORANGE NEW JERSEY ESSEX COUNTY DIVORCE LAWYER

The husband and wife are from China and seek asylum, withholding of removal, and protection under the Convention Against Torture, based on their fear one or both of them will be forcibly sterilized for violating China's family planning regime if they are forced to return. They allege they are at risk because they had a second child while residing here. The BIA determined they failed to show their fear of sterilization was an objectively reasonable one, and denied relief. On petitioners' appeal, the circuit panel affirms, finding the case identical to Matter of C-C, which credited the relevant current State Dept. reports over the opinion of the same expert, Aird, which he based on a pool of documentary evidence from the 1980's and 1990's. The circuit panel has repeatedly recognized that State Dept. reports may constitute substantial evidence and the BIA's explanation of why it decided to credit these reports over the Aird affidavit is well-reasoned.   Yu, et al. v. Attorney General of U.S., Third Cir. (Stapleton, C.J.), January 11, 2008

CHATHAM TOWNSHIP NEW JERSEY MORRIS COUNTY DIVORCE ATTORNEY

He filed a New York complaint for divorce from defendant. Believing he was divorced, he moved to New Jersey and married another woman, Lopez . He had 2 children with Lopez and remains with her. When applying for immigration status, plaintiff was told the Bureau of Immigration and Customs Enforcement did not recognize his marriage to Lopez because his New York divorce was dismissed. Because he remains married to defendant, his marriage to Lopez was invalid. So he filed a new complaint for divorce in New Jersey, ultimately granted. However, the Bureau began deportation proceedings, still claiming his marriage to Lopez was invalid, having occurred while he was still married to defendant. He tried to amend the New Jersey judgment of divorce to a claim for annulment. The judge properly denied this request. Not only was his request untimely, filed 5 years after the divorce judgment, but his alleged mistake of filing for a divorce instead of an annulment was not a permissible ground for relief.    Melendez, etc. v. Calim, New Jersey App. Div., October 19, 2007

NEW JERSEY DIVORCE ARBITRATOR : MUSLIM MARRIAGE

In this New Jersey divorce trial, the wife sought to enforce the parties' "Mahr" agreement, a Muslim marriage contract entered into before marriage, under which husband promises wife a gift when the marriage is concluded. Upon receipt, a woman's Mahr automatically becomes her separate property. In this case, the wife sought enforcement of his obligation under the Mahr to pay her $50,000. While the Mahr has often been misconstrued by American courts as a prenuptial contract, Odatalla v. Odatalla recognized that a simple contract approach should be used to resolve a Mahr dispute. Unlike a prenuptial agreement, the Mahr is a simple contract that serves as a supplement, not a substitute, to other legal obligations between spouses. Therefore, Odatalla is the proper approach for judicial resolution of a Mahr. It is a simple contract, enforceable as long as the requirements of a valid contract are met. Here, those requirements have not been met : the amount of the payment was inequitable and defendant signed the agreement under duress, fearing that, if he did not do so, the marriage would not take place and he would be deported. Wife used husband's immigration status as both a sword and a shield. She also made unsupported allegations of abuse and cruelty against him, was not credible and was guilty of bad faith. This Mahr agreement is unenforceable.   Attia v. Amin, New Jersey Ch. Div., June 12, 2006

Which Parent Has Custody?

Where legal custody has not been determined by decree or statute, the parent having actual uncontested custody is to be regarded as having "legal custody" of the person concerned for purpose of determining that person's immigration status under 8 U.S.C. section 1432(a). Bagot v. Ashcroft, ___F.Supp. 3d.___(3d Cir. 2005), February 11, 2005. http://caselaw.lp.findlaw.com/data2/circs/3rd/042127p.pdf