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  • Article: Recognizing Gay Marriage in Immigration by Christopher M. Pogue

    Recognizing Gay Marriage in Immigration
    A Look ahead to what same-sex immigration benefits could look like if DOMA meets its demise, but Proposition 8 stands.

    by Christopher M. Pogue, Esq.

    This article is a brief thought experiment, which assumes for a moment that the 1996 Defense of Marriage Act (DOMA) is unconstitutional, but that California’s Proposition 8 will stand. Based upon this assumption we will look to the impacts this will have in US immigration law, in particular on immigration benefits for same-sex spouses and children of same-sex couples.

    Setting the Scene:

    While five years ago my premise may have seemed an unlikely stretch to many, today the Supreme Court of the United States is set to rule on two cases that have the potential to re-shape the existing legal landscape of same-sex marriage for immigration and beyond.

    The first case of these two cases, Hollingsworth v. Perry, deals with California’s Proposition 8, which bans same-sex marriage in the State of California. The second case, U.S. v. Windsor, examines whether the federal blanket ban on recognition of same-sex marriages, known as DOMA, should be struck down as unconstitutional.

    It is not my intent to delve into the legal arguments of the cases before the court. Rather for our purposes we will simply assume that the Supreme Court will follow court tradition, and the decisions made by the court will be narrowly crafted to limit the reach of their impact, and extend only so far as necessary to rule on the cases at hand.

    Taking this in mind, let’s begin our experiment. First, we will assume the court will rule that there is no basis in the United States Constitution to enforce DOMA; not that DOMA is right or wrong, simply that the federal government lacks the authority under the constitution to recognize same-sex marriage or outlaw it.

    Second, we will assume that the court will rule the ban on same-sex marriage in California is constitutional, under the theory that the 10th Amendment provides to each state all the powers that are not vested in the federal government, which would effectively end the same-sex marriage debate on a federal level.

    Why you ask? By deciding in this way the Supreme Court will limit the reach of its decision, doing away with a federal blanket ban on same-sex marriage, and in its place leaving a patchwork of state laws that will define what a legal marriage is in the US. Neither side of the debate will be happy with this compromise, but neither will be completely unhappy either. Each side will get a little of what it wants, and the Supreme Court can thereby avoid making a truly polarizing decision by completely siding with one side or the other.

    While many states have laws that ban same-sex marriage either implicitly or explicitly, a growing number of states affirmatively recognize same-sex marriage. And it is to these states (and growing number of nations that also recognize same-sex marriage) we will look to below.

    What the impacts of DOMA’s demise will be on US immigration petitions:

    Now that the scene is set for our experiment, let’s look at the impact this will have on immigration cases. With the demise of DOMA, US Citizenship and Immigration Service and the US Department of State, the two federal agencies with the most influence on US immigration law, will likely recognize same-sex marriage as indistinguishable from opposite-sex marriage. Here’s why, but first a brief review of existing immigration law.

    As those familiar with US immigration law will know, the burden generally rests on the petitioner or applicant to prove that a foreign national is eligible for the immigration benefit they are seeking. In other words, if you want a visa to travel you need to prove to the government that you qualify. It’s not for the government to find reasons a given traveler is not eligible for a visa alone.

    The legal standard that the petitioner or applicant must generally meet is “preponderance of the evidence”, i.e. that it is “more likely than not” the foreign national is eligible for the immigration benefit sought.

    Traditionally opposite-sex couples established that their marriage was bona fide by providing evidence that the marriage was legally entered into under the law where the marriage took place, and then providing additional evidence to establish that on the day they married they “intended to spend their lives together.”

    Take a traditional marriage in Ghana and a Christian Orthodox marriage in Lebanon as examples for the broadness of this current standard.

    So long as a traditional marriage involving the exchange of livestock in a rural village is registered with the government of Ghana, the marriage will be considered a legal marriage in Ghana. As this was enough under the laws of Ghana to establish a marriage, it qualifies as a marriage for US immigration purposes.

    Similarly a Christian wedding conducted in Lebanon in the Orthodox Church does not even be registered with the government at all under Lebanese law for it to be legal. Therefore US immigration needs only written confirmation from the bishop that presided over the ceremony to confirm a legal marriage, the same standard that the Lebanese government requires.

    As we can see from these vastly different marriage ceremonies, evidencing a legal marriage to US immigration authorities allows for a large amount of flexibility. And more importantly, the standard is readily adaptable for the recognition of same-sex marriage - with some limitations.

    For example, likely all a same-sex couple would need to do is show they entered into a legal marriage, is provide evidence that they complied with a nation’s laws in entering into their marriage in that nation. In the absence of DOMA, if a state recognizes a same-sex marriage or civil union this then should be sufficient for evidencing a legal marriage is in existence. In such a case the couple’s state marriage certificate will be all they need.

    Of course showing a legal marriage is in existence is only half the battle to getting an immigration benefit. As we all know from the movies, a couple must also demonstrate that their marriage is bona fide (entered into for the purpose of spending ones’ lives together).

    Unfortunately this process is rarely as much fun as in the movies. However existing standards for evidencing the bona fides of opposite-sex couples could easily be applied to same-sex couples.

    For example US immigration recognizes the following as persuasive evidence of marriage bona fides: joint financial dealing, joint living arrangements, photos of life spent together, regular communication via email or phone, affidavits from family and friends, and even social media printout of Facebook. All of these indicia of a bona fide marriage are arguably as available to same-sex couples as they are for opposite-sex couple.

    Taking our experiment a step farther:

    Once a bona fide same-sex marriage is established, additional immigration benefits, beyond just petitioning for a spouse’s immigration status, will also be available to same-sex couples.

    These benefits will likely include petitions for foreign national children based on a step-parent relationship, defenses to prevent removal (deportation) form the US, claims under the Violence Against Women Act (VAWA), and eligibility for certain waivers of inadmissibility that require a US citizen spouse or child to qualify. In all these cases establishing a bona fide marriage is the key to success.

    With that said, there will be significant hurdles for some same-sex couples to overcome before they will qualify for family based immigration benefits in the US.

    In particular same-sex couples that are not married under the laws of a nation allowing same-sex unions will not be considered legally married. However it does not take much of a stretch of the imagination to get around such a hurdle.

    For example, same-sex couples could relatively easily marry under any country’s law or any state’s law that allows same-sex marriage. Residency in a country is rarely required to obtain a marriage license, and as long as the couple is following the law of the country or state they marry in, their marriage will be recognized as a legal marriage by the US federal government, regardless of whether the state or nation the couple actually reside in recognizes their same-sex marriage.

    A few parting thoughts:

    I hope that for those that have taken the time to read this brief thought experiment, you have found it useful, and that it has provided you with some context and understanding of the positive changes I hope we can look forward to if DOMA is found unconstitutional by the Supreme Court.

    Unfortunately, this article is merely musings at the present moment; it is not the law of land; yet. The future US immigration landscape will likely not be a panacea, but a patchwork of local state laws through which same-sex couples will need to navigate.

    Yet it seems to me that we are on the eve of change, and that change will be one for the better. This change will offer most same-sex couples a right to seek immigration benefits on par with opposite-sex couples. And this change will also bring with it a strong inducement for those living in states that do not yet recognize same-sex marriage to push their state to get on the “right side of history.”


    About The Author

    Christopher M. Pogue, Esq. is Of Counsel with the Fleischer Law Firm, LLC. His law practice specializes in representing individuals, families, and businesses around the United States and around the world in US immigration matters. Contact: cpogue@immigrate2usa.com and Websites: www.PogueImmigrationLaw.com / www.immigrate2usa.com


    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
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