Many in the LGBT community (in the pre-Windsor era) were placed in removal/deportation proceedings and were ordered removed/deported. This is because they had no “form of relief” available for them at the time of their hearing—meaning they had no way to get a green card, resulting in the immigration judge (IJ) ordering their removal. This was the case even though they were in a committed, same-sex relationship with a US citizen partner.
Then, along came the Supreme Court’s decision in Windsor that declared the Defense of Marriage Act (DOMA) unconstitutional, opening the door for same-sex couples to marry, and for immigration purposes, for one spouse to petition the other, just like opposite – sex couples.
Recently, the Office of the Principal Legal Advisor (OPLA) of Immigration and Customs Enforcement (ICE) stated that if an alien had been previously removed and has now entered into a lawful, bona fide marriage with a same-sex spouse, it is possible to go back to immigration court to obtain a green card through their spouse’s petition.
If you were previously ordered removed/deported, but are now in a same-sex marriage, making you eligible for a green card on the basis of that marriage, consult with an attorney, who can evaluate your situation and eligibility for various forms of relief that may now be available to you, such as adjustment of status, cancellation of removal, etc. The attorney can help you obtain your green card.
While there are no guarantees or assurances, this is great news for people previously ordered removed/deported but have now married a same-sex partner, making them eligible for a spousal petition. But there are still many other factors that would need to be evaluated, such as: whether you have previous fraud or crime issues; whether the manner you entered the US still makes you eligible (i.e. you entered as a crewman, fiancé, snuck across the border, etc.); whether you have the benefit of Section 245(i), if you are married to a green card holder but are now out of status, to name a few. That is why it is important that if this change in ICE policy benefits you, see an attorney for assistance.
