What part of “unconstitutional violation of equal protection don’t they understand?

” That
is a question being asked of United States Citizenship and Immigration Services
(Immigration) by same-sex binational couples1 and immigration advocates across the
country after an apparent Defense of Marriage Act (DOMA) victory celebrated all too
prematurely.

The Law Today

One of the main purposes of the Immigration and Nationality Act is to unite families.
Consistent with that aim, Immigration has allowed gay U.S. citizen couples to adopt
foreign children for the last eighteen years2 and, since 2005, has granted post-operative
transsexual binational married couples the same recognition and treatment currently
enjoyed by traditional binational married and engaged couples.3 Nonetheless, bona fide
same-sex binational couples still do not enjoy the same immigration benefits shared by
opposite-sex counterparts due to the 1982 case Adams v. Howerton.4 There is still some
hope that the nearly 40,0005 same-sex binational couples who live in the United States
may eventually enjoy equal protection due to the Obama Administration’s February
determination that Section 3 of DOMA violates the Fifth Amendment as applied to
legally married same-sex couples6 and a recent decision by Attorney General Holder.

Catch 22

Same-sex binational couples still find themselves in an immigration conundrum because,

according to Immigration Spokesperson Christopher Bentley, the agency “has not
implemented any change in policy and intends to follow the president’s directive to
continue to enforce the law” despite the administration’s new position on DOMA.
Immigration, nonetheless, continues to deny the same married aliens even non-immigrant
status such as Student or Visitor due to a presumption of immigration established upon
marriage.

With more states proposing and enacting anti-immigration efforts (unconstitutional in

their own right) and the unwillingness of Congress to fix the broken immigration system
faced by all Americans, same-sex binational couples’ hopes lay in three avenues: 1) the
enactment of the Uniting American Families Act7; 2) a judicial finding that strikes down
DOMA; or 3) a trend of Immigration Court findings that U.S. citizen same-sex spouses
would suffer hardships if their alien spouses were deported. None of these scenarios,
unfortunately, will likely play out any time soon. So what to do?

1
A same-sex binational couple is comprised of a U.S. citizen or Lawful Permanent Resident/”Green Card”
holder and a foreign national.
2
A72 457 702 (AAU September 3, 1993) (ESC) (NYC).
3
Matter of Lovo, 23 I&N Dec. 746, 748 (BIA 2005)
4
673 F.2d 1036 (9th Cir. 1982)
5
2000 Census
6
Justice.gov/printf/printout2.jsp
7
A bill which would grant SSBCs the same rights and privileges accorded to heterosexual binational
married and engaged couples.
Advocate and Educate

The Uniting American Families Act was reintroduced this year by New York Democratic
Congressman Jerrold Nadler and Vermont Democratic Senator Patrick Leahy. If passed,
the Act would rectify the inequality faced by same-sex binational couples and amend
U.S. immigration law to allow citizens and Green Card holders to petition their spouses
for residency. Not surprisingly, however, it has little bipartisan support. For that reason
it is imperative that readers educate their Congressional leaders, especially Republicans8
about the injustices faced by same-sex binational couples and their families.

Sue

Until immigration law changes, aliens who live in states that recognize same-sex
nuptials9 could consider marrying and forming a class for purposes of a lawsuit. But to
ensure that the most winnable cases are litigated first, marriage for couples who live in
states with their own DOMA-like legislation10 should still shy away from such a
maneuver and pursue less risky strategies such as dual-intent employment-based
immigration benefits like Intracompany Transferee or Specialized Worker.

Use Creative Legal Strategies

The discretionary relief of Cancellation of Removal11 may be appropriate, at least as a last

ditch effort, for those aliens facing removal. A huge step forward was made in May when
the Attorney General vacated a decision of the Board of Immigration Appeals (BIA) to
determine whether a respondent’s same-sex partnership qualified him to be a spouse
under New Jersey and Immigration laws and whether the respondent would be able to
satisfy the exceptional and unusual hardship requirement.12 How the BIA responds could
have huge ramifications for same sex-binationals.

The Rundown

It is about time same-sex binational couples be granted the same immigration benefits as
couples of the opposite sex. Ardent advocacy and sound legal strategies are an utmost
necessity to ensure family unity consistent with immigration laws and the Constitution.

Elizabeth Ricci is the managing partner of Rambana & Ricci, PLLC in Florida’s capital
where she concentrates on complex immigration issues including health, religious and
national interest waivers. She may be reached at 866 224 4529.

8
Congressional contacts and advocacy tools can be found at aila.org under “Legislature
9
Connecticut, Washington, DC, Iowa, Massachusetts, New Hampshire, New Jersey, New Mexico, New
York, Rhode Island and Vermont.
10
Florida, California and Arizona.
11
Cancellation is an underused immigration regulation that generally requires aliens to prove 10 years of
physical presence, no serious criminal history and hardship to U.S. citizen or Permanent Resident family
(especially spouses).
12
25 I&N Dec. 485 (A.G. 2011)