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Potential effects of DOMA decision on binational couples
by Yasmin Nair, Windy City Times
2011-03-16

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The news that the Department of Justice would no longer contest parts of the Defense of Marriage Act has generated tremendous excitement in the LGBT community and ripple effects in various groups especially affected by the policies set in place by DOMA. Among them are binational same-sex couples who, because of DOMA, have been prohibited from sponsoring their partners for citizenship, even though opposite-sex couples are allowed to do so.

A binational couple is defined as one where one partner is a U.S. citizen or legal permanent resident (LPR) and the other is a citizen of another. DOMA's invalidation of same-sex marriages has meant that many U.S. binational couples have been in limbo, if the non-citizen or non-resident partners are unable to find jobs in the United States, with several of them negotiating complex travel and living arrangements between countries while keeping their marriages or relationships going.

In the wake of the DOMA announcement, there have been indications that some attorneys and activists working on the issue of binational couples will be pursuing more aggressive methods to bring their cases to the attention of the DoJ. In recent news, the SF Weekly reported that Immigration Equality (IE), a non-profit based in New York and Washington, D.C., is looking to represent couples in a lawsuit "to challenge DOMA on the grounds that it bars them from sponsoring a gay foreign spouse for a visa like straight couples can." (IE did not respond to a request for an interview.) From Maryland comes the news, as reported in Metro Weekly, that one couple—Edwin Echegoyen and Rodrigo Martinez who married in DC March 1—was able to gain a stay on the deportation of Martinez, who is from El Salvador.

Illinois state Rep. Luis Gutierrez recently pledged to support and include the Uniting American Families Act (UAFA) in the next Comprehensive Immigration Reform Act (CIR). Before that, in March 2010, U.S. Sen. Charles Schumer addressed a letter to LGBT constituents in New York stating, "I support this principle of immigration reform and I am working on introducing a comprehensive package that would address this issue along with a host of immigration issues, including a pathway to legalization, the future flow of immigrants and border enforcement measures." UAFA would have ensured the right of gays and lesbians to sponsor their partners for immigration exactly as straight couples are able to do.

Such news items are likely to renew hope amongst binational couples, especially in the wake of the recent failure of UAFA to make headway in the 111th Congress as part of CIR. So far, there has been little indication that the 112th Congress is likely to take up CIR, and while there have been some murmurs of UAFA operating as a stand-alone bill, that prospect appears dim at present. In fact, Schumer, who is considered the political heavyweight on immigration, also stated in his letter, "I believe that the only way to pass meaningful and effective immigration reform is through a comprehensive bill, not through piecemeal legislation." UAFA had been introduced in the 106-111th Congresses as a stand-alone bill.

Schumer's statement highlights the fact that the issues facing binational couple operate in the larger context of immigration reform in the United States, which currently has 12 million undocumented immigrants and where reform of what many on all sides call a "broken" immigration system has been difficult to achieve. Complicating the issue is that the immigrants or would-be immigrants in binational relationships might also be undocumented or not be qualified to apply for permanent residency or citizenship for a number of reasons.

Historically, gay immigrants were barred from entering the country on account of their sexuality under the Immigration Act of 1917, which excluded people from entering the United States if they were found "mentally defective" or who had a "constitutional psychopathic inferiority." A 1965 amendment to the 1952 Immigration and Nationality Act added "sexual deviation" as grounds for denying entrance. It was only in 1990 that the U.S. Congress withdrew the phrase "sexual deviation" from the INA and it could no longer be grounds for barring entry to the United States.

Currently, people cannot be legally barred from entry because of their sexual orientation and cannot be asked about their sexual orientation. However, even with straight people, any sign that a visitor to the country is engaged in a romantic relationship with a U.S. citizen or permanent resident, unless he or she is entering on a previously approved spousal or fiance visa, can mean that their application for entry is denied.

Eric Berndt is a supervising attorney for Chicago's National Immigrant Justice Center's National Asylum Partnership on Sexual Minorities. He works on issues relating to LGBT and HIV-positive immigrants and spoke to Windy City times about the implications of the new DOMA developments and the options available to binational couples, especially in Illinois which recently passed a civil unions bill but does not recognize gay marriage.

Berndt said that "DOMA is the reason why UAFA is necessary for individuals who have otherwise valid state marriages ... so if you get rid of DOMA, then a same-sex couple married in Iowa or Massachusetts could petition for the alien spouse ["alien" is the legal term used by the government]. Massachusetts and Iowa both conduct marriage ceremonies for non-residents, so if DOMA is gone then U.S. citizens and legal permanent residents can sponsor spouses if they make the effort to travel to a state that solemnizes same-sex marriages."

Once the marriage has been solemnized, and if DOMA is struck down, the U.S. citizen or LPR can then file a family-based petition for non-resident or non-citizen spouse, "and backing up that application they'd have to overcome the presumption that applies to all marriage based petitions, that the marriage is intended for immigration benefits only."

From this stage on, the U.S. government is generally very stringent in its investigation of marriages, and couples have to prove that they are in committed, exclusive relationships, "that you intend to spend your lives together, that you have lives and finances commingled together finances, although you can get around that if you're not living together for work reasons," Berndt said. He emphasized that the process is very involved and that NIJC generally recommends that people go through it with an attorney. He added that the government will conduct a "searching review" of the relationship and that might involve interviewing people who know the couple and even looking at their facebook pages and web references. Using the Facebook option of "in an open relationship" might not work favorably for such petitions.

An Illinois couple could travel to a state like recognizes both same-sex marriages and marriages for non-residents, like Massachusetts, and get married in the hope of DOMA being struck down as unconstitutional. However, while there is much optimism about DOMA, Berndt cautioned that it is by no means a sure thing and that someone might well get married, file an I-130, a Petition for Alien Relative (in this case, relative meaning spouse), and then find themselves in open immigration court if their petition gets rejected and DOMA has not been struck down.

Asked what the main reasons for refusal of spousal sponsorship, Berndt said that it was frequently"just the failure of documentation—they don't provide enough evidence of commingled finances." In addition, he said, all immigrants have to prove they are admissible to the U.S. in order to get their green card. and there are criminal bars to admissibility and many of those bars are quite low. For example, "even after you get status you can be removed based on criminal acts such as possession of more than extremely small amounts of marijuana, certain kinds of drugs, other kinds of convictions called aggravated felonies which in the weird world of criminal immigration law can include misdemeanors and can mandate removal with no opportunity for release." In addition, people also have to prove they will not become public charges and can support themselves. If the immigrant spouse lacks sufficient resources, their spouse can submit an affidavit of support saying they have the resources and finances to support them [at 125 percent above the mandated poverty line].

In many cases, as with the Maryland couple, the non-citizen or non-LPR partner may be undocumented and subject to removal. In that case, those who have "entered without inspection" - which means they entered the country in what is considered an unlawful and undetected manner—are not eligible to be sponsored as spouses. However, if the immigrant was originally inspected and admitted into the U.S. and then later fell out of status (as, for instance, on a tourist visa), they can still get green cards through family-based petitions. [Complicating this even further is the fact that an undocumented person who has more than one year of "unlawful presence" (even if overstaying a visa) who leaves the country and attempts to return may be subject to a 10-year ban from re-entering the United States.]

Given Obama's recent announcement and his positions on gay marriage and DADT, many LGBT activists and community members have begun to demand that he invoke his presidential powers to eliminate such restrictions like DOMA outright. On that, Berndt explained there are a couple of different ways in which the administration is being used in the immigration context. One, he said, "is planned litigation at a national level in the appellate courts to find the disparate treatments of same sex and opposite sex couples for immigration purposes unconstitutional. So that's a longer-term strategy ...there's a case in the ninth circuit that might raise this but none of the national advocacy groups have any cases before the circuits right now that squarely presents a same-sex binational couple issue." He said that the other piece is that "immigration attorneys have decided to ask for discretion on the part of the government in not executing removal orders against [immigrants in same sex relationships] on the rationale that: the only thing that's preventing them from getting a green card and staying here permanently is DOMA and it looks like DOMA's going to go in the near future so why don't we hold off and give these families an opportunity to stay together?"

Could Obama conceivably simply stop the enforcement of DOMA? On that, Berndt pointed out the reasons why that would not be the best option for all. Right now, the state department is saying "as a matter of discretion, we're going to allow people to get this different kind of visa that isn't predicated necessarily on a marriage-based petition to come in." But with regard to Obama simply ending DOMA, he said, "I think we have to look at the different scope of executive discretion. The executive always has prosecutorial discretion whether to inflict a punishment or bring a case against certain individuals. So the government could decide for example, in this case, we're not going to execute removal orders against same-sex spouses or same-sex fiances. However in the broader DOMA context, there is a clear statutory prohibition against extending formal benefits to same-sex spouses. So it wouldn't be the same thing for Obama to say, 'we are going to give social security survivor benefits to same sex spouses.' In that sense, he would be not exercising prosecutorial discretion but refusing to follow a law. And there's a danger to executives doing things like that, because what the Bush administration did is they sub silentio, under the table, decided that some statutes limiting war powers were unconstitutional and then refused to follow the prohibitions in those statutes. What Obama's saying is: we're not going to defend this law in court but until the court tells us we can no longer enforce it and it's no longer the law of the land, we're going to continue applying the law. And meanwhile it seems that they're going to exercise prosecutorial discretion to ameliorate the impact of the law."

Asked about the impact of other immigration issues on LGBT immigrants in binational relationships, Berndt pointed to the need for the reform of asylum laws, since many partners might also be here as refugees escaping from violence based on sexual orientation. Currently, they are still subject to an "arbitrary" one-year deadline from the time of their entrance which makes it impossible to apply if many of them don't know about the deadline on entry or if their initial and time-consuming effort on getting here is taken up with readjusting and building a new life.

He also said that, "[t]he issues around this administration's policies around enforcement should be of concern to LGBT people." In particular, he pointed to initiatives like 287(g), which was enacted in 1996 and expanded after 9-11 as an anti-terrorism tool. It allows for "partnerships" between the Department of Homeland Security and local police authorities to further immigration enforcment "into the daily lives of just about everyone in this country." According to Berndt, "it places a lot of discretion in the hands of local authorities to report people that they don't like for whatever reason to immigration authorities and to harass people that they don't like on the pretext that they're hoping to enforce immmgration laws. So this is going to impact marginalized communities like LGBTs disproportionately."

As the LGBT community watches to see what comes next with DOMA, binational couples will be watching with particular anxiety to see how their situations might be resolved. Meanwhile, according to Berndt, it is likely that UAFA will keep being reintroduced as well.


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