On February 23, 2011, White House Press Secretary Jay Carney confirmed that President Obama instructed Attorney General Eric Holder to cease defending the Defense of Marriage Act.  Obama claimed that this was not a political decision, but a legal one.  He and the Attorney General concluded that the Act was unconstitutional.  Read the White House press briefing transcript.

There are several immigration benefits available to all opposite sex married couples that are denied to same-sex married couples including the right to:

1. Petition for a spouse to become a permanent resident
2. File an application to live and/or work in the United States temporarily as the dependent spouse of a temporary worker
3. Serve as the beneficiary or qualified relative for an application for a waiver of a ground of inadmissibility or removability
4. Serve as the beneficiary or qualifying relative in an application for cancellation of removal for non-permanent residents

Proponents of DOMA expressed concern that same sex marriages entered into in a jurisdiction recognizing their validity would force all states and the federal government to give those marriages legal effect for the purpose of marital property laws, child custody, public and private employment and entitlement benefits, and most important for our discussion, immigration benefits.

An Associated Press survey in August 2010 found that 52 percent of Americans support granting federal recognition of same-sex marriage.

Legal challenges to DOMA on various grounds have been successful in federal district courts and circuit courts of appeal, but it is unclear whether and when the United States Supreme Court will take up this important question.  The administration's refusal to defend DOMA in ongoing litigation significantly increases the likelihood that it will be ultimately ruled unconstitutional.

US District Judge Joseph Tauro ruled DOMA in violation of the Due Process Clause of the Fifth Amendment to the US Constitution on July 8, 2010 in a decision titled Gill v. Office of Personnel Management.  Judge Tauro decided a companion case the same day ruling that DOMA violates the Tenth Amendment and the Spending Clause of the US Constitution.   Commonwealth of Massachusetts v. US Dept. of Health.

In Gill, Judge Tauro wrote:

As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

In 2009 Judge Stephen Reinhardt declared DOMA unconstitutional in an employment dispute where the federal government refused to grant spousal benefits to Tony Sears, the husband of then Los Angeles deputy federal public defender Brad Levenson.

In the Matter of Brad Levenson, Judge Reinhardt wrote,

The denial of federal benefits to same-sex spouses cannot be justified simply by a distaste for or disapproval of same-sex marriage or a desire to deprive same-sex spouses of benefits available to other spouses in order to discourage them from exercising a legal right afforded them by a state

The immigration laws do not specifically define the spousal relationship as between a man and a woman, so it is DOMA that specifically results in the immigration laws not recognizing same-sex marriage as a basis for immigration benefits.

USCIS has been very specific about its lack of support for petition rights not only for same-sex marriages, but for transgendered ones.  William R. Yates issued a memo on April 16, 2004 noting that USCIS would not recognize a marriage as valid where one spouse had been the same sex as the other, but was undergoing, or successfully completed sex reassignment surgery.  Memo Re Adjudication of Petitions Filed by or Behalf of Transsexual Individuals, USCIS HQOPRD 70/6, William R. Yates, April 16, 2004.  But in 2005, the Board of Immigration Appeals indicated that if the state where the marriage occurred recognizes the sex change of the postoperative transsexual and the marriage as valid and legal, the marriage may satisfy the legal requirements of the Immigration and Nationality Act.  Matter of Lovo, 23 I&N Dec. 746 (BIA 2005)

Congress introduced the Uniting American Families Act in February 2008, which would have granted same-sex spouses the right to file immigration petitions, but that bill never made it to a vote.

What This Means for You

Although there is no guarantee of success, the President's announcement means that it is possible to attempt to file a spousal petition or waiver application based on a valid same-sex marriage.  The couple bringing a case of this type would have to weather the risk of failure, but this certainly seems like a good time to make a try at overturning the law in the course of an immigration petition.

If we represent immigration litigants in a case to test the constitutionality of DOMA, we will only do so if the foreign national spouse is in a valid status that will protect the spouse from being removed or deported in the event the DOMA challenge fails.  Good candidates are same-sex couples where the foreign national currently holds the following status:

• Pending application for adjustment based on employment
• H-1B status with an approved I-140 petition
• L-2
• H-4
• Asylee or Refugee status

If you are interested in doing your part to fight for the rights of same-sex couples to enjoy the same rights as straight couples under the Immigration and Nationality Act, please contact us and we will evaluate your case.