Immigration Challenges of Bi-National Same-Sex Couples

Erika Portillo

Same sex couples face many challenges in the United States when seeking the same legal benefits available to heterosexual couples.

For instance, in immigration law, U.S. citizens are allowed to petition for certain qualified relatives to remain or come and live permanently in the United States. Eligible immediate relatives include the U.S. citizen’s spouse, unmarried children under the age of 21 and parents.

However, because of the Defense Of Marriage Act (“DOMA”), bi-national same-sex couples are prevented from petitioning for their spouses. DOMA was enacted in 1996 and specifically prevents the Federal Government from recognizing the validity of same-sex marriages. As a result, bi-national same-sex couples are prohibited from legally living in the United States by DOMA’s Section 3.

Section 3 reads in part as follows: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Because immigration law is ruled by the Federal government, the immigration authorities are bound by DOMA.

Although DOMA has been declared unconstitutional by some states (including California) for violating equal protection of the laws guaranteed by the Due Process Clause, no definitive decisions have been issued as the courts’ rulings are under appeal.

In June, in an attempt to show that the Immigration and Customs Enforcement (ICE) focus was the detention of criminal aliens, the director of ICE, John Morton, sent out a memo instructing the agency’s attorneys to use their discretion in pursuing deportation cases against individuals. Specifically, he advised his attorneys to take into consideration several factors, including, but not conclusive, having an American citizen spouse. Soon after, ICE began to grant deferred action/administrative closures of cases to individuals with sympathetic cases. Some of those have included gay or lesbian individuals married to American citizens.  Although it is a temporary relief, as it essentially puts the case on an indefinite hold, individuals may be able to receive a work permit while the case is pending review. Whether they get to permanently remain in the United States will depend on whether Congress repeals Section 3 of DOMA, or the judicial branch renders a definitive decision against the law’s constitutionality.

DOMA may not be the only obstacle that bi-national aliens face under U.S. immigration law. Some questions have been raised as to the number of fraudulent applications that may be filed if bi-national same-sex marriage is recognized.

However, that should not be a concern. The safeguards that are currently in place are designed to prevent scam marriages. Those safeguards, although sometimes extreme and invasive, have served as a deterrent to diminish the number of scam marriages in the immigration field.

Currently, when filing an ICE application for a spouse, a US citizen must provide sufficient evidence to prove that there is a bona fide marriage. That evidence may include joint assets, children’s birth certificates, photographs, etc. They also have to go through an interview process which sometimes can be videotaped and may even take a few days.  In a videotaped interview, the couple is questioned individually and asked intimate questions about their relationship. If there are contradictions as to whether or not the curtains of their bathroom are green, for example, the petition can be denied. That process is related to cases where the foreign national entered the United States legally.

Undocumented individuals go through a much different process. Once a petition by a US citizen has been filed and approved, the foreign national must depart the United States and have an interview in a U.S. consulate. They must also file a waiver for entering the United States without documents. He or she has to establish to the satisfaction of the Attorney General that the refusal of admission of such an immigrant alien would result in extreme hardship to the citizen or lawful resident spouse of such an alien. The foreign national can end up waiting outside the country not only for months but, in many cases, years before the waiver is approved.

Once the related petitions and applications are approved in either of those processes, if the marriage is less than two years, the foreign national is granted a conditional residence for two years as a safeguard. After those two years, a joint petition must be filed, along with evidence in support of their marriage asking the immigration authorities to remove the conditions and grant permanent residence. As to citizenship, the foreign national is able to file for naturalization in three years rather than five, so long as there is proof the couple is sharing a life together.

Certainly these safeguards will serve as a deterrent in bi-national same-sex couples cases.

The reality is that bi-national same-sex couples have a long way to go before their marriages are finally recognized by the Federal Government. Let’s hope for a well thought out law allowing the same benefits to bi-national same-sex couples as are currently received by heterosexual couples.

Erika Portillo is a partner at the firm of Guichard, Teng & Portello, APC, general focus of her practice is immigration.

In related news, close to home:

Bradford Wells and Anthony Makk, a bi-national same-sex married couple living in San Francisco, continue to live in legal limbo. In August of this year, mere days before Anthony Makk faced deportation to his native Australia, President Obama made the surprise announcement to prioritize deportations and to consider same-sex marriage as a factor in deportation decisions. Two bi-national same-sex couples have so far successfully appealed their deportation orders under the new guidelines. Bradford Wells and Anthony Makk, meanwhile, continue to hope that their deportation order will also be dropped.

Amy Goodman of Democracy Now! interviews Bradford Wells and Anthony Makk in the video below. Also joining them is Rachel Tiven, Executive Director of Immigration Equality.

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