The Immigration Consequences of Obergefell v. Hodges


The Supreme Court’s holding in Obergefell v. Hodges that the Fourteen Amendment guarantees the right to gay marriage in all states will have profound effects not just here in the U.S., but abroad. Immigration authorities already had recognized gay marriage if it was determined it was lawful where it was performed.  Previously, the Obama administration recognized the unconstitutionality of the so-called Defense of Marriage Act (DOMA). The administration’s position was subsequently justified when the high court struck down key provisions of DOMA in 2012 in United States v. Windsor.  In that decision, the court held that the Fifth Amendment applied to invalidate provisions of DOMA which sought to confine the federal definition of marriage and spouse to apply solely to heterosexual unions. Only after Windsor did the administration begin officially recognizing gay marriage for immigration purposes. Friday's decision in Obergefell goes even further than Windsor. Now, the Supreme Court has held not just the federal government cannot restrict the definition only to heterosexuals but that all the states must allow homosexual marriages, and importantly must recognize any such marriages which were lawfully entered into in other states (and presumably abroad, although the court’s decision does not explicitly say that).  In terms of contiguous countries to the U.S., it is worth noting that Canada has recognized and provided for homosexual marriage for about 10 years now.  In 2010, the Supreme Court of Mexico, by a vote of 8-2 upheld the constitutionality of Mexico City’s same-sex marriage law and also later ruled  that such marriages were valid throughout the entire country. For purposes of immigration, the fact that all states must allow for and provide homosexual marriages will do away with a major impediment which faced some immigrants who resided in states where such marriages previously were not permitted. Under certain situations immigrants who reside in the U.S. can adjust their status if they are in a bona fide, valid marriage to a U.S. citizen. It is no longer an impediment that they are homosexual and living in the U.S. in a state which doesn’t recognize gay marriage. That said, the decision also affects not just people trying to adjust their status but also people who are applying for certain immigration benefits, such as waivers from the immigration courts and administrative bodies, such as U.S. Citizenship and Immigration Services. Waivers may apply, depending on the type of case, where for example a person has a “qualifying relative” such as a U.S. citizen spouse and can show certain equities exist, such as “extreme hardship” to the qualifying relative. Other important relief may be available, such as lawful permanent resident cancellation of removal, and the recognition of same-sex marriage, although not specifically required by statute to make someone qualified for this type relief, will now be considered by the immigration judge as it relates to the overall equities of the case. Most importantly, as the majority of justices duly recognized in Obergefell, a decision to validate same-sex marriage is not just about the spouses involved, but also about their entire family unit:  the son or daughter of same-sex partners can now rest assured that the state will recognize their whole “family” as legitimate. Immigrants who find themselves in immigration proceedings will now be able to point to the Obergefell decision and the immigration authorities will be bound to take into account their entire family.  The government now must recognize them as bona fide parents, spouses, and children as a product of a legitimate same-sex marriage.

This post originally appeared on Immigration Prof Blog. Reprinted with permission.

About The Author

Geoffrey A. Hoffman Geoffrey Hoffman, In 2014, Professor Hoffman received the American Immigration Lawyers Association (AILA) Elmer Fried Excellence in Teaching Award. In 2015, he was the recipient of the University of Houston-wide award for clinical teaching. Professor Hoffman heads the UH Immigration Clinic and specializes in immigration-related federal court litigation, deportation defense, asylum cases, and appeals before the Board of Immigration Appeals. He has served as counsel or co-counsel in over 40 appellate and trial court cases. Professor Hoffman served as co-counsel before the Supreme Court of the United States in the precedent-setting immigration case, Carachuri-Rosendo v. Holder. Prior to joining the Clinic, he practiced immigration law at Kurzban Kurzban Weinger & Tetzeli, P.A. in Miami. Previously, Professor Hoffman was a Visiting Assistant Professor at the University of Illinois, held the Forrester Fellowship at Tulane Law School and was a Lecturer at the University of Miami. In addition to his practice and teaching experience, Professor Hoffman served as a judicial law clerk for the Honorable Paul V. Gadola, U.S. District Court for the Eastern District of Michigan for a two-year term 1998-2000. Professor Hoffman has also published articles on immigration, international law, international human rights, and racial profiling, including most recently, “Immigration Appellate Litigation Post-Deportation: A Humanitarian Conundrum,” 5 HLRe 143 (2015) (co-authored); “A Collision Between Asylum Law and The Hague Convention on Civil Aspects of International Child Abduction,” 5:8 AILA’s Inside Immigration (July 2014); and "The War on Terror as a Metaphor for Immigration Regulation," appearing in the University of Iowa’s Journal of Gender, Race and Justice, co-authored, 2012.

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