DOMA and Binational Couples

Among the many issues raised by the decision yesterday by the Obama administration to stop defending Section 3 of the Defense of Marriage Act are those related to the immigration consequences for binational LGBT couples. Does this mean that DHS will start adjudicating family based petitions filed by binational same sex couples?

Currently under DOMA same-sex relationships are not recognized by DHS. United States Citizens and Legal permanent residents can not sponsor their same-sex partners within the family based petition categories. This is true even if the couple married in a country or a state that recognizes same sex marriages and civil unions. Consequently binational families have been forced to live in different countries or find limited alternative ways to enter and remain in the United States.

The Board of Immigration Appeals has been supportive of marriage-based cases involving transgender individuals, but not same sex couples. The BIA has pointed out in those cases that the marriage relationship is consistent with federal law because the couples were of “opposite sexes.” In re Lovo-Lara, 23 I&N Dec. 746 (BIA 2005). There the BIA stated that:

There is also nothing in the legislative history [of DOMA] to indicate that, other than in the limited area of same-sex marriages, Congress sought to overrule our long-standing case law holding that there is no Federal definition of marriage and that the validity of a particular marriage is determined by the law of the State where the marriage was celebrated. While we recognize, of course, that the ultimate issue of the validity of a marriage for immigration purposes is one of Federal law, that law has, from the inception of our nation, recognized that the regulation of marriage is almost exclusively a State matter.

The Board of Immigration Appeals is part of the Executive Office of Immigration Review (EOIR). As an office within the Department of Justice, EOIR is headed by a Director who reports directly to the Deputy Attorney General. Under 8 C.F.R. § 1003.1(h)(1)(i) (2008) the Attorney General can review the decision of the Board of Immigration Appeals. Does this means that the next time a same sex married couple files an appeal before the BIA, the attorney general will request the case to be referred to him in order to clarify the unconstitutionality of Article 3 of DOMA? Is any instruction regarding this matter to be included in the Immigration Judges Bench Book?

According to an analysis of the 2000 U.S. census performed by the The Williams Project on Sexual Orientation Law and Public Policy UCLA School of Law there were more than 35,000 binational same-sex couples in the country. At this point, same-sex binational couples who want to remain together in the United States have to rely on work or student visas, or seek other legal loopholes.

Will the Administration instruct the Department of Homeland Security to amend the Field Adjudicators Manual so that  adjudicating officers evaluate  each same sex marriage family petitions according to its validity in the country or state of its celebration,  absent constitutionally sound public policy concerns?  Or even better. Will the Administration instruct USCIS to ignore state legislation against same sex marriage as it  may be unconstitutional, violating the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution?

On October 2010  an internal memo of DHS entitled Administrative Alternatives  to Comprehensive Immigration Reform was made public.  The draft memo’s stated purpose was to “offer administrative relief options to promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization.”

Any comprehensive immigration has to include a pathway to legalization and also family unity.  Does this means that this Administration is going to propose alternatives  to the LGBT community that   define the concept of family in a way that leaves no doubt  that same-sex couples and their binational relationships are part of families?

These are but a few of the questions raised by the Administration´s courageous decision to expose the unconstitutionality of DOMA.    It must be noted however that even the repeal of DOMA  would not result in a clear, uniform rule recognizing all same-sex marriages under the Immigration and Nationality Act.

The decision announced yesterday by the Attorney General is a step in the right direction,  however  given that the the United States immigration law  has a long history of overt discrimination against homosexual immigrants  I am not so optimistic that  we will see the same courage reach the immigration arena,  at least not so soon.  I hope I am wrong. In the meantime  the  Uniting American Families Act might be a good place to start.

-Sheila I. Velez Martinez