Immigration Challenge to DOMA

Since the passage of the federal Defense of Marriage Act (DOMA) in 1996 gay and lesbians and many transgender individuals have experienced dramatic discrimination under U.S. immigration law.  One of the primary mechanisms to obtain status in the United States as a foreign national is through family ties.  Family ties are a pillar of U.S. immigration policies and chief among them are spouses of U.S. citizens and green card holders.

These family-based immigration laws have allowed married individuals to confer status on their spouse since the very founding of the U.S.—unless that is—that spouse is of the same-sex.  This discrimination is enforced by the Department of Justice, as well as the Department of Homeland Security.  DOMA too enshrines this discrimination by completely barring federal recognition of same-sex marriage.

With the Obama Administration’s announcement that it will no longer enforce DOMA, many have wondered what will become of DOMA and what are the immigration consequences of this policy reversal.  With the Speaker of the House, Mr. John Boehner vowing to defend DOMA, and with Minority Leader Pelosi’s counter-salvo requesting a funding report on the cost of defending such litigation, it’s anybody’s guess what such a defense of the bill from Congress would entail.

Meanwhile, Immigration Equality, a group that advocates on behalf of LGBT and HIV-positive immigrants and their families, has called on DHS to halt deportations of, and stop denials of individuals seeking green cards on the basis of their same-sex relationship to a US citizen or permanent resident.

Additionally, the chorus of calls for the repeal of DOMA and its harsh immigration consequences continues to grow.  Many, including Immigration Equality are vowing to challenge the law as discriminatory.

These laws are relics of imagined notions of traditional marriage and should be repealed.  The U.S. government should get out of the business of tearing loving spouses apart from each other, from their children, and from their mothers and fathers.  Just ask Judge Pregerson why.

Update: Immigration Judge Terry Bain yesterday (March 22, 2011) granted an adjournment to a Queens-based same-sex couple, Monica and Cristina.  Judge Bain’s decision will allow Monica and Cristina to pursue a marriage-based green card before USCIS, which adjudicates marriage-based I-130’s, or spousal-based petitions for green cards.

It’s unclear what will happen after the couple files an I-130 before USCIS.  USCIS may approve, deny, or hold the petition.  Of course an approval before the USCIS is sought by the couple, but seems rather unlikely. While the Obama Administration is not going to defend DOMA, it is still good law and USCIS is constitutionally bound to enforce the law.  A denial also strengthens any legal challenge to DOMA by providing a strong foundation for standing.  It’s little more than a guess what happens next, but regardless, this development is another brick out of the collapsing wall of DOMA.

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