By Attorneys Robert L. Reeves and Steven J.Malm

The issue of gay marriage has received much attention from the media. In May, President Obama declared his support for gay marriage. Also garnering attention is the impact of the Defense of Marriage Act (“DOMA”) on the immigrant community. Under DOMA, a US citizen cannot petition a same-sex spouse for a green card.DOMA prevents Federal immigration law from recognizing same-sex marriages entered into in Massachusetts, Connecticut, California (before Prop 8 passed on November 8, 2008), Iowa, Vermont, New Hampshire, New York, and the District of Columbia.  Ironically, in the same-sex marriage context, Federal law grants greater rights to non-immigrants than to US citizens.

For example, same-sex spouses of certain non-immigrant visa holders may remain in the United States on a tourist visa and extend their stays.  Although there is the potential for fruitful litigation on the issue of petitioning same-sex alien spouses, US citizens have been advised not to file such green card petitions for fear of inviting a removal (aka deportation) proceeding.

Once in removal proceedings however a gay or lesbian respondent may be able to invoke the existence of a same-sex marriage to request relief from removal.  One form of relief available to aliens the government seeks to remove from the United States (aka respondents) is Cancellation of Removal.

In general, to qualify for this relief an alien must have resided continuously in the United States for 10 years, possess good moral character and not have committed certain crimes, and have a US citizen child, spouse, or parent.  In the past, Federal agencies, the Department of Justice and Department of Homeland Security have refused to acknowledge or accept a same-sex US citizen spouse as a qualifying relative for Cancellation of Removal or for other purposes.

However, the Attorney General weighed in on this issue in 2011 with specific instructions to the Board of Immigration Appeals to consider whether a same-sex spouse should be considered as a qualifying relative.  This is an especially momentous decision because the Attorney General is the head of the Department of Justice, which oversees the administration of the United States Immigration Courts.

Also, in removal proceedings, there have been examples of the Department of Homeland Security agreeing to temporarily not pursue the deportation of aliens in same-sex marriages with US citizens through what is known as prosecutorial discretion.  So, recent developments provide a glimmer of light for respondents facing deportation proceedings in Immigration Court.

On the cutting edge of DOMA and immigration law are various lawsuits in Federal court.  In fact, the constitutionality of DOMA may be destined for the United States Supreme Court.  The First Circuit Court of Appeals recently held against DOMA as did a Ninth Circuit panel without either Court going so far as to say that same-sex couples have a constitutional right to marry.

There have been lawsuits filed against United States Citizenship and Immigration Services (“USCIS”) in Federal courts for denials of petitions for same-sex spouses.  Though the Obama administration has taken the position that they will not defend the constitutionality of DOMA, the House of Representatives has voted to fund the defense of DOMA.

Ultimately, whether same-sex spouses will be entitled to remain in the United States or face deportation comes down to the federal courts and/or a new law from Congress. In the meantime, same-sex couples should visit with a reputable immigration attorney for an update on recent developments and to explore whether another avenue towards legal residency in the United States exists.

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