SCOTUS strikes down DOMA; Impact on Immigration Law

Issue August 2013 By Michael D. Greenberg

On June 26, 2013, the United States Supreme Court invalidated the Defense of Marriage Act in United States v. Windsor. The decision struck down a key section of DOMA, which defined marriage as between a man and a woman for the purpose of federal law.
In a 5-4 decision authored by Justice Anthony M. Kennedy, the United States Supreme Court determined that Section 3 of the Defense of Marriage Act violated equal protection guaranteed under the Fifth Amendment of the Constitution. Section 3 prohibited any federal benefits for same-sex spouses and defined marriage, for federal purposes, as between a man and a woman. Section 2 allows states not to recognize such same-sex marriages. It was not before the court.

In 1996, when the bill was passed and signed by then U.S. President William J. Clinton, not a single state recognized same-sex marriage. Now 13 states and the District of Columbia recognize it (effective Aug. 1, 2013).

The timing was especially interesting when Republican senators had rejected any attempt to expand same-sex immigration benefits in the bipartisan Senate Immigration Reform Bill. The ruling essentially makes such consideration irrelevant.

It is reported that this decision will impact some 1,000 federal benefits. However, I am only going to address one, immigration benefits for same-sex spouses. Under Section 3 of DOMA, the federal government would not recognize same-sex marriages for immigration benefits. Therefore, a U.S. citizen, or Lawful Permanent Resident spouse, could not petition for his/her spouse to become a lawful permanent resident.

In addition, a spouse would not be accorded derivative asylum benefits or derivative benefits as the spouse of one who is the beneficiary of some other family-based petition.

On July 1, 2013, Janet Napolitano, secretary of the Department of Homeland Security, announced that the department would immediately take steps to implement the decision and John F. Kerry, secretary of the Department of State, also announced that state would implement the decision as it pertained to consular processing. The departments have always recognized the place of performance of the marriage as the law determining validity.

What this means is that individuals who were married in a state where same-sex marriages are permitted, e.g., Massachusetts, may immediately file for immediate relative visas for their spouses, even if they live in a state that specifically does not recognize gay marriages performed in other states, e.g. Pennsylvania. However, other federal benefits may not be so clear. Some federal statutes or regulation look the state of residence. Step-parents will also be able to petition for their spouses children under the same rules as heterosexuals.

In addition, persons should be able to file for fiancée visas provided they establish they will marry in a state and or country permitting same-sex marriages. An individual granted admission as a fiancée must marry within 90 days to the person named as fiancée.

Since the status of civil unions remains unclear, it would be the safest course at this time to marry in a state permitting same.

The burden of proving the bone fides of the relationship still remain in addition issues of support and medical examinations will be the same as for heterosexual marriages.

All other immigration restrictions remain. Unless grandfathered under 245i of the Immigration and Nationalization Act (INA) persons who entered without inspection will not be able to adjust. Any unlawful presence, or criminal activity bar, remains unchanged. Persons presently in proceedings or who have been ordered removed and not left the country, will have to proceed in immigration court.

In addition to the family petitions, persons who were abused in a same-sex marriage will now be eligible to self-petition.People who were denied the right to have an adjudication of a visa petition during immigration proceedings should be able to reopen the case and or remand it if before the Board of Immigration Proceedings for consideration of the marriage.

This is an exciting new era in immigration law, where many of our citizens and their spouses will no longer be treated as a second class. It is exciting to see how fast the affected departments reacted positively to the new circumstances.