ON October 18, 2012, the Second Circuit Court of Appeals in New York declared that the Defense of Marriage Act (“DOMA”) was unconstitutional, to the extent the law attempted to ban (or refuse to recognize) same-sex marriages. Although the decision may still be appealed to the US Supreme Court, this could be great news (and new hope) for gay and lesbian couples who are married, and one spouse hopes to be petitioned by the other spouse.
By way of background, the DOMA defines the word “marriage” as, “only a legal union between one man and one woman as husband and wife…”. Therefore, same-sex marriages would not be recognized as valid or legal under this definition. While the Obama administration had stated that it would no longer “defend” this law, the law was nevertheless “still on the books”. Therefore, if a gay or lesbian couple legally married each other in a state that recognized same – sex marriages, the federal government continued to refuse to recognize the validity of that marriage for various federal benefits, including spousal petitions.
So, if there was a gay or lesbian couple, and one was a US citizen, and the other was TNT, the USCIS would not accept, process, or approve an “immediate relative” spousal petition by the US citizen spouse, because it was a same-sex marriage, which was outlawed under DOMA.
In its opinion, the Court recognized that, “homosexuals have been the target of significant and long – standing discrimination in public and private spheres”, and therefore any law potentially discriminating against them must be “substantially related to an important government interest”. The Court found that refusing to recognize same sex marriages was not related to any important government interest. Therefore, the law was declared unconstitutional.
While this decision could still be appealed, it looks like we’re heading in the direction of same – sex marriages finally being accepted and recognized as valid, legal unions, such that there could be a “petitionable relationship” between a US citizen and his or her same sex spouse. In addition, ICE has already stated that if someone is facing deportation/removal and they have a same – sex spouse or partner, that relationship could also qualify the person for leniency under “prosecutorial discretion”.
If you think this new court decision, (or ICE’s willingness to recognize same – sex relationships as a grounds for exercising prosecutorial discretion) could benefit you, you should seek the advice of an immigration attorney, who can evaluate your situation and advise you on the best course of action to help you achieve and live your “American Dream.”
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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