The U.S. Court of Appeals for the Second Court recently struck down Section 3 of the federal Defense of Marriage Act (DOMA) as being unconstitutional and discriminatory. The section of the law defines marriage as being between a man and a woman. Historically, same-sex marriages, regardless of whether they were legal in the jurisdiction performed, have not been recognized by federal agencies including USCIS, due to this secton of DOMA.
This case ia another big win for immigrant same-sex couples that were lawfully married in their home country or in the state they reside where same-sex marriage is legally recognized.
Under DOMA, only heterosexual couples were offered protections from one spouse being deported or benefits, such as permanent residence due to marriage to a US citizen spouse (I-130 Petitions). As a result, same-sex couples have expended significant funds in living thir lives in two different countries or worse, forcing the couple to separate or the US citizen to live abroad.
Circuit Court Rulings
The First Circuit Court earler this year unanimously held that the government needed to show a rational reason for enacting DOMA in the first place. The First Circuit found that, since the government could not provide any sound reasoning, the law is unconstitutional. The Second Circuit was the second circuit to address the constitutionality of DOMA. It came to the same conclusion but used the more heightened scrutiny test due to past discrimination based on sexual orientation. These cases are likely to proceed to the US Supreme Court, which will be the final arbiter on the constitutionality of section 3 of DOMA.
The federal government is going to be hard pressed to prove it has an interest in denying homosexuals the right to marry.
In the Immigration Context
These circuit cases are not the only rumblings disturbing the status quo of no immigration benefits for same-sex couples. On February 23, 2011, the Obama administration announced it would no longer enforce §3 of DOMA in federal litigation. In April 2011, the Attorney General, Eric Holder, also vacated the Board of Immigration Appeals decision in Matter of Dorman, remanding the case for consideration of the constitutionality of DOMA under the 5th Amendment (substantive due process and equal protection). Matter of Dorman, 15 I&N Dec. 458 (AG 2011). The BIA has also issued 4 unpublished decisions in June 2012, remanding I-130 appeals back to USCIS or EOIR to determine if the beneficiary would be eligible for the benefit “absent the requirements of § of DOMA,” relying on the Attorney General’s recent decision in Matter of Dorman.
Despite these fissures possibly leading to a finding of unconstitutionality of §3 of DOMA, USCIS continues with its same policy to deny I-130 petitions and other qualifying applications based on a same-sex relationship. But the times – they are a changin’. Stay tuned on this front.
If you are wondering about how these changes for same-sex couples may apply to you, contact a specialized Denver Immigration Attorney to discuss your case.