Bloggings on Immigration Law


Roger Algase

While Waiting For The Supreme Court To Rule On DOMA, Thousands Of Valid Same Sex Marriages May Be At Risk Of Being Broken Up By Deportation.

While the Supreme Court examines arcane issues such as the "level of scrutiny" to apply to the Defense of Marriage Act (DOMA) under the equal protection clause of the 14th Amendment, and the degree, if any, to which the "states rights" guarantee of the 10th Amendment may prohibit the federal government from denying benefits to same sex couples who are legally married under state law, thousands of real life people may be in danger of having their marriages broken up by deportation while the Obama administration continues to enforce DOMA, in defiance not only of basic fairness and morality, but the rulings of federal circuit courts. 

One such couple, Fabiola Morales and Kelly Costello, are the subject of a December 29, 2012 Washington Post article: Federal marriage law may force deportation of many immigrant gay spouses. The article describes the traumatic effect that deportation of Morales, who is from Peru and living in Maryland with her legally married spouse, Costello (who is expecting twins), would have. 

Morales, according to the Post, earned US bachelor and master degrees in nursing at Georgetown University and suffers from multiple sclerosis, for which she is receiving experimental treatment at the same university. She and Costello are requesting the Department of Homeland Security to hold her green card application "in abeyance" pending the expected Supreme Court decision on DOMA's constitutionality. 

Another couple mentioned in the same article, Santiago Cortez and his marriage partner, Pablo Garcia of Venezuela, have been together for 20 years. These couples, and many others like them are in danger of being broken up by deportation because the the Obama administration's rigid insistence on enforcing DOMA to the letter, even though it refuses to defend DOMA's constitutionality in the courts. 

It is hard to imagine how the concept of law enforcement would suffer if pending same sex marriage green card cases were kept on hold pending the Supreme Court decision. If the administration blindly goes ahead with deporting same sex marriage partners, then even if the Supreme Court strikes down DOMA, it may be too late for many people.

In terms of how the Supreme Court might be likely to rule on DOMA, it is noteworthy that in his dissent in US v. Arizona, 567 US       (2012) Justice Scalia used the 10th amendment as authority for his view that the states should be given great leeway in adopting their own immigration enforcement policies. Will he and his fellow conservatives on the Court be as eager to uphold states' rights with regard to marriage benefits for same sex couples? We will have to wait and see.

Happy New Year to all ID readers.

About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.

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