Tag Archive for: Same Sex Marriage

One Step Forward, Two Steps Backwards: Immigration Benefits for Same Sex and Domestic Partners in India

By Cyrus D. Mehta and Ramya Mahesh

The question of immigration benefits to same sex couples is still a far cry in India. India not only disallows same sex marriages, it also currently criminalizes relationships between same sex partners, terming them as unnatural. Section 377[i] of the Indian Penal Code (“IPC”), an archaic law, was introduced in 1861 during the British rule in India, which criminalized “carnal intercourse against the order of nature with any man, woman or animal” with a maximum sentence of life imprisonment.

The struggle to strike down Section 377 of the IPC as unconstitutional has been a long one, spearheaded by several activists from Non-Governmental Organizations (“NGOs”) fighting for the rights of the Lesbian Gay Bisexual Transgender (LGBT) community.  On July 2, 2009, a historic judgment[ii] decriminalizing homosexuality was passed by the Delhi High Court in favor of Naz Foundation, an NGO working in the fields of HIV/AIDS intervention and prevention and for the rights of the LGBT community. An appeal was filed challenging this decision in the Supreme Court of India. On December 11, 2013, the Supreme Court reversed the decision of the Delhi High Court,[iii]thereby criminalizing homosexual intercourse between consenting adults. The apex court shifted the onus onto parliament to decide whether to repeal the provision, arguing that the courts could not make such decisions under the existing laws. The apex court further observed that there was “no constitutional infirmity” in the 377 law. This judgment has sparked widespread condemnation throughout India and internationally, and has been criticized as regressive. Naz Foundation plans to file a review petition challenging the decision of the Supreme Court soon.

As Indian law does not recognize same sex marriages, there are no provisions in Indian law according immigration benefits to same sex partners.It is therefore not possible to qualify for an entry visa to accompany one’s partner who may be entering India on a long term employment visa.  At the most, the partner can come to India on tourist visa (for a maximum period of 180 days).

However, there have been isolated incidents and trends worth reporting. In November 2013, a senior IFS officer was demoted from her post in the Ministry of External Affairs (“MEA”) passport and visa division for refusing a visa to the same sex spouse of an American diplomat.[iv] She refused the visa on the ground that same sex marriages are not legal in India and the diplomat’s spouse could not therefore be granted a diplomatic visa and recognized as a “spouse” in India. A senior official in the MEA’s American division suggested that although there is no rule in India to give visa to a gay couple, the diplomat’s partner could be given visa as a family member as it had been done in the past. In light of India’s opposition to the arrest of its Deputy Consul General in New York, one politician from the Bhartiya Janata Party has shrilly suggested that the same sex partners of American diplomats be prosecuted under Section 377 as a retaliatory measure. It is hoped that this inappropriate statement be viewed as an isolated one and not consistent with mainstream opinion.

As for domestic and unmarried partners, Indian law did not, till recently recognize the relationships between domestic, live-in partners. On June 17, 2013, the Madras High Court held[v]that for a valid marriage, all customary rights need not be followed and subsequently solemnized. As long as the couple is not disqualified by law from marrying each other, and a third party’s rights are not affected, the couple can be declared to be spouses by the court. This declaration would be on the basis of whether they have had a sexual relationship. The Court held that if a woman aged 18 and above, and a man aged 21 and above, have a sexual relationship, they will be treated as husband and wife, especially if the woman becomes pregnant. Even if the woman does not become pregnant, if there is “strong documentary evidence to show existence of such relationship,” they will still be termed “husband” and “wife.” However, this ruling is only applicable to the state of Tamil Nadu and cannot be enforced elsewhere in India.

In a recent judgment of November 26, 2013, the Supreme Court of India had dealt with the issue of live-in relationships but it was within the purview of the Domestic Violence Act 2005 (the “DV Act, 2005”). The Supreme Court has held[vi]that a “live-in relationship” would not amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f) of the DV Act, 2005 if the lady in such a relationship knew that the male partner was already married. All live-in relationships are not relationships in the nature of marriage, but they can still come within the ambit of the DV Act, 2005.. The judgment was delivered by a Division Bench of Justices KS Radhakrishnan and Pinaki Chandra Ghose in an appeal filed by one Indra Sarma (Appellant) against the decision of the Karnataka High Court. This ruling will only apply to domestic partners of opposite sexes and will not be applicable to same sex partners in view of the recent decision of the Supreme Court in the Suresh Kumar Koushal case[vii]

It has to be kept in mind that as these issues are very recent and path-breaking as far as Indian laws are concerned, there has been no recognition, thus far, in Indian law, of same sex partners or domestic / unmarried partners with respect to  Indian immigration. It is quite obvious that if India does not change its outlook to according benefits to same sex spouses or partners, it will be disadvantageous to the country as fewer people may wish to travel to India for tourism and business. More important, failure to recognize same-sex relationships, especially in light of a regressive penal provision in 377, is not in keeping with the principles and traditions of the world’s largest democracy country that has otherwise accommodated diverse people and beliefs through its history.

Update: In a very positive development, the Indian government filed a review petition in The Supreme Court on December 20, 2013 challenging the earlier judgment upholding Section 377 stating, “Section 377 IPC, insofar as it criminalizes consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution.”

(Guest writer Ramya Mahesh is an Associate at Little & Co., one of the oldest and most highly reputed law firms in Mumbai, India)


[i] Section 377: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.
[ii]Naz Foundation vs. Government of NCT of Delhi 2010CriLJ94.
[iii] Suresh Kumar Koushal  vs. Naz Foundation decided by the Supreme Court of India on December 11, 2013.
[v]Aysha vs. Ozir Hassan2013 (5)MLJ 31.
[vi]Indra Sarma vs VKV Sarma, Supreme Court of India, Criminal Appeal no. 2009 of 2013 decided on November 26, 2013.

[vii] Supra , see footnote 3.

Processing of I-130 Petitions Speeds Up For An Expanding Group of Us Citizens

In Delays for Overseas Spouses of US Citizens Seeking Green Cards I reported about the slowdown in the processing of I-130 petitions filed by US citizens on behalf of immediate relatives, such as spouses, minor children and parents, who are outside the United States. As a result of widespread concern about the delays, the USCIS seems to have reacted positively and sent the following e mail to its stakeholders:

From: U.S. Citizenship and Immigration Services [mailto:uscis@public.govdelivery.com]
Sent: Wednesday, November 20, 2013 3:38 PM
Subject: USCIS Message: Update on the processing times of Form I-130s filed by U.S. citizens for their eligible immediate relatives

Dear Stakeholder,

U.S. Citizenship and Immigration Services (USCIS) has received communications from the public expressing concerns regarding extended processing times for Form I-130, Petition for Alien Relative, filed by U.S. citizens for their eligible immediate relatives. USCIS provides information below in response to the concerns expressed.

USCIS is ever-mindful of the need to process a U.S. citizen’s immediate relative Form I-130 carefully and expeditiously. The need is defined by the immigration system’s goal of preserving family unity. It is for this fundamental reason that USCIS has been focused on addressing delays in the processing of these Forms I-130 for several months.
Through concerted efforts, USCIS is now adjudicating U.S. citizens’ immediate relative Forms I-130 filed as early as February 2013. This is a significant step forward, as previously published guidance reflected the processing of these Forms I-130 filed in October 2012. Furthermore, USCIS expects the processing of these Forms I-130 to be increasingly timely in the ensuing weeks, culminating in the return to an average processing time of five months for these Forms I-130 by May 2014.

USCIS has focused on these Forms I-130 for the very reason that affected members of the public have expressed their concerns; the importance of family unity. Last month, in an effort to expedite the adjudication of these cases, USCIS began transferring stand-alone Forms I-130 filed by U.S. citizens for their immediate relatives from USCIS’s National Benefits Center to its Nebraska, Texas, and California Service Centers. This shift improves USCIS’s ability to adjudicate the cases in a timely manner.

When You Receive a Notice of Transfer of Your Case

If your case was transferred, USCIS will send you a notice listing the transfer date and where your case will be processed. Your original receipt number will not change and this will not further delay the processing of your case. USCIS will take action on your case within 60 days of the transfer date listed in your notice.

How to Track the Status of Your Case

We have recently updated the USCIS website at www.uscis.gov<http://www.uscis.gov/> with processing times for Form I-130 cases filed by U.S. citizens for their eligible immediate relatives. Please check the processing times<https://egov.uscis.gov/cris/processTimesDisplay.do> for your petition before inquiring about your case. If your case is transferred to another USCIS office, you should refer to the processing times for the office that has received your case.

You can check the status of your case at www.uscis.gov<http://www.uscis.gov/> by entering your receipt number in the “Check Status<https://egov.uscis.gov/cris/Dashboard/CaseStatus.do>” field. Additionally, you can sign up to receive automatic case status updates<https://egov.uscis.gov/cris/jsps/selectusertype.jsp;jsessionid=bacEczm0-YrdshKqQwGgu> by email as your case is processed. If you have not received a decision on your case within the published processing time, you may submit an inquiry using e-Request<https://egov.uscis.gov/e-request/Case.do> or contact the National Customer Service Center (NCSC) at 1-800-375-5283. For TDD hearing impaired assistance, please call 1-800-767-1833. When making any case status inquiries, you should reference your original receipt number and indicate that your case was transferred to a new location.

If you have filed a Form I-130 and you receive a request for evidence or any other type of communication from USCIS, please read the notice carefully to ensure that you respond to the same service center that sent you the notice.

If you move while your case is pending, you can change your address on the USCIS website<https://egov.uscis.gov/crisgwi/go?action=coa> or contact the NCSC so that USCIS can notify you of any further action on your case. It is important that you notify USCIS of any change of address as soon as possible after moving.

We appreciate the concerns that members of the public have expressed on this important subject. We are mindful of those concerns and are addressing them with great diligence.

Kind Regards,

USCIS Public Engagement Division

It is indeed welcome news that USCIS is endeavoring to speed up the processing of I-130 petitions of US citizens, and restore the original processing times of five months or less. While the granting of immigration benefits is contentious in today’s political environment, seldom dispute the ability of a US citizen to swiftly bring into this country a foreign national whom he or she has married overseas. The number of US citizens who can file I-130 petitions on behalf of spouses has recently expanded after Section 3 of the Defense of Marriage Act was declared unconstitutional in United States v. Windsor, thus enabling US citizens to  also file I-130 petitions on behalf of same sex spouses. These spouses were unjustly deprived of a benefit for years on end as a result of an unconstitutional statute, and they should not be required to wait that much longer for the I-130 petition to get approved.

As an aside, the class of US citizens who can file I-130 petitions on behalf of overseas relatives may be expanding to even dead petitioners. I heard today that attorney Michael Piston was able to obtain an approval for the unmarried son of a U.S. citizen mother who died after her I-130 petition filed on  his behalf was approved. The son was outside the U.S. and could not take advantage of INA section 204(l), which allows beneficiaries to apply for a green card if they were in  the US at the time of the petitioner’s death. Humanitarian reinstatement was also denied. Mr. Piston, who is widely admired for successfully pushing the envelope on interpretations of our immigration laws, filed suit in the U.S. District Court for the Central District of California contending that the unmarried son of a U.S. citizen remained the unmarried son of a U.S. citizen even after the citizen died. The USCIS settled the law suit and approved the I-130 petition.  Such a law suit could not have been successful outside the court in California where it was initiated because the Ninth Circuit in Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010), held in the context of the INA section 212(a)(1)(H)(I)) waiver that the “spouse, parent, son, or daughter of a citizen of the United States” does not mean that they have to be the spouse, parent, son or daughter of a “living citizen of the United States.” This ruling, which currently is limited to California and other states that come within the ambit of the Ninth Circuit, could potentially be extended to beneficiaries of I-130 petitions too where the citizen has died, and theoretically allow the estates of deceased US citizens to file I-130 petitions on behalf of qualifying relatives who are overseas.

In any event, it is heartening to know that the USCIS heard the widespread concerns of “living” US citizens who justifiably want to unite with their loves ones as quickly as possible. It is hoped that the USCIS could also respond to the concerns of other stakeholders, such as US companies, who often have a hard time transferring their specialized knowledge employees on L-1B visas into the US as a result of unreasonable denials. Our immigration laws have been designed to promote family unity as well as promote economic well-being, and the USCIS would clearly be benefitting the national interests of the country it yielded to the  concerns of all legitimate stakeholders who depend on the fair and expeditious processing of immigration benefits applications.

BAD TIMING ALBERTO: BIA HAS CONFIRMED THAT SAME SEX SPOUSES CAN GET IMMIGRATION BENEFITS AFTER UNITED STATES V. WINDSOR

Former Attorney General Alberto Gonzales, along with an immigration attorney, David Strange, published an Op Ed in the New York Times entitled What the Court Didn’t Say on July 17, 2013. They muddy the waters by contending that despite the recent Supreme Court decision in United States v. Windsor, 133 S. Ct. 2675 (2013) which struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional, it is not clear whether same sex spouses may be entitled to immigration benefits as Congress always intended spouses to be of the opposite sex under the Immigration and Nationality Act (INA). For those who do not know, Mr. Gonzales was the Attorney General who authorized the infamous torture memos during the Bush administration. His essay too involves tortured reasoning as we shall see.

What the Op Ed does not tell us is the dramatic extent to which DOMA was an aberration, a break from the long-standing American tradition that the regulation of marriage belonged to the states:

The durational residency requirement under attack in this case is a part of Iowa’s comprehensive statutory regulation of domestic relations, an area that has long been regarded as a virtually exclusive province of the States. Cases decided by this Court over a period of more than a century bear witness to this historical fact. In Barber v. Barber, 21 How. 582, 584 (1859), the Court said: “We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce . . . .” In Pennoyer v. Neff, 95 U. S. 714, 734-735 (1878), the Court said: “The State . . . has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved,” and the same view was reaffirmed in Simms v. Simms,175 U. S. 162, 167 (1899)

Sosna v. Iowa, 419 U.S. 393, 404 (1975)

From this perspective, it is DOMA that stands out as a radical departure from well-established jurisprudence and its judicial invalidation as a prudent exercise in constitutional restoration. Ambiguity over the immigration impact flowing from DOMA’s demise, contrary to what Gonzales contends, is not created by Windsor’s unremarkable reaffirmation of the Congressional power to disallow any immigration benefit from marriage fraud. This issue was not before the Court. The question of the moment was not whether Congress could define the scope of marriage as part of its plenary power over immigration, something which all acknowledge, but whether DOMA was a constitutionally permissible manifestation of such authority. We now know that it was not.

Ironically, the publication of the essay coincided with the issuance of Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013) by the Board of Immigration Appeals on the same day, which held that United States v. Windsor was applicable to non-citizen same sex spouses seeking immigration benefits. Even before Windsor and Zeleniak, there had been hints of a thaw in the way that federal authorities thought about same sex marriage. In Matter of Dorman, 25 I& N Dec. 485 (A.G. 2011), Attorney General Holder vacated the BIA’s removal order so that it could consider whether, absent DOMA, a same sex spouse could create the kind of familial relationship to sustain remedial relief through cancellation of removal.

Matter of Zeleniak affirms the long held view that the marriage must be legally valid in In Zeleniak the same sex marriage was valid under the laws of Vermont. As with the Windsor decision itself, Zeleniak marked not the breaking of new ground but a long overdue return to orthodox principles that the BIA had repeatedly embraced: 

Therefore, the validity of a marriage for immigration purposes is generally governed by the law of the place of celebration of the marriage… Matter of Luna, 18 I&N Dec. 385 (BIA 1983); Matter of Bautista, 16 I&N Dec. 602 BIA 1978); Matter of Arenas, 15 I&N Dec. 174 BIA 1975); Matter of P-, 4 I&N Dec. 610 (BIA, Acting A.G. 1952)

Matter of Hosseinian 19 I&N Dec. 453, 455 (BIA 1987); See also In re Gamero, 14 I&N Dec. 674 (BIA 1974)

The next question in Zeleniak was whether the restrictions in section 3 of DOMA were applicable, which prior to United States v. Windsor they were. Section 3 of DOMA provided: 

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 work “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. 

On June 26, 2013, while the appeal in Zeleniak was still pending at the BIA, the Supreme Court in US v. Windsor struck down section 3 of DOMA. The following passage of the Supreme Court decision, also cited in Zeleniak, is worth noting: 

The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. 

US v. Windsor at 2693

As a result of the repeal of the section 3 DOMA impediment, the BIA in Matter of Zelenaik held that since the marriage was valid under the laws of the state where it was celebrated, it would be recognized for immigration purposes. The BIA remanded to the USCIS to determine whether the marriage was bona fide, which was the sole remaining issue. The ruling is applicable to various provisions of the INA, including sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status). 

While Zeleniak has clearly interpreted“spouse” to mean someone of the same sex or opposite sex, so long as the marriage was valid in the place where it was celebrated, Gonzales and Strange still argue that there is sufficient legal ambiguity in the definition of spouse in the INA. 

They cite a 1982 case, Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) where the United States Court of Appeals for the Ninth Circuit held that Congress only intended to define a citizen’s spouse as a person of the opposite sex in the INA. It is worth noting the genesis of that case: the marriage petition was denied by the then Immigration and Naturalization Service on the ground that “[Adams and Sullivan] have failed to establish that a bona fide marital relationship can exist between two faggots.” Whatever reliance that Gonzales and Strange may have placed in Adams v. Howerton, it may no longer have any force after Zeleniak since Zeleniak has overruled Adams v. Howerton

How can a lowly decision of the BIA overrule a decision of the lofty Ninth Circuit Court of Appeals? Under the oft-quoted Chevron doctrine that the Supreme Court announced in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837(1984), federal courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 ( 2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute. 

Congress had delegated to the legacy INS, and now to the DHS (and to the EOIR), the authority to unpack the meaning of the INA. Nowhere in this foundation statute do we find any definition of “spouse” though INA Section 101(b) defines both “parent” and “child”.The possibility exists that this is no accident. Under the doctrine of expressio unius est exclusio alterius (the expression of one thing is the exclusion of all else), one logical inference from this conspicuous omission is that Congress did not feel the imposition of a statutory definition was central to its regulation of immigration law or policy, preferring instead to leave it to those federal agencies charged with its administration to interpret what a “spouse” properly meant. That is precisely what the BIA in Zeleniak has done. Rather than seeking to prolong indecision when no reason for it exists, which is the purpose and consequence of the Gonzales and Strong position, the swift and sure response by USCIS to the end of DOMA reflects a deference to the Constitution that Attorney General Gonzales would do well to emulate. As a professor of constitutional law, doubtless Attorney General Gonzales knows full well that “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong…” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 395 (1969).

Thus, under Brand X, the BIA’s interpretation of spouse in the INA, which is undoubtedly ambiguous, has been interpreted to mean a spouse of the same or the opposite sex in Zeleniak. Whatever doubts Adams v. Howerton may have caused with respect to the definition of spouse in the immigration context, and further sowed by Gonzales and Strong, they have been laid to rest by the agency’s interpretation of “spouse” in Zeleniak.

Even if Gonzales and Strong could not have foreseen Zeleniak spoiling their show on the day their Op Ed was published in the New York Times, they ought to have known that the immigration agency has always recognized the validity of the marriage based on where it is celebrated. But for DOMA’s impediment, whether the marriage was been same sex or opposite sex spouses, the marriage would have been recognized. Thus in Matter of Lovo, 23 I&N Dec. 746 (BIA 2005), decided long after Adam v. Howerton, so long as North Carolina recognized the marriage between a male citizen and a post-operative transsexual female, the marriage would be considered valid under immigration law and section 3 of DOMA would no longer be an impediment. 

While Congress has enormous powers over immigrants, and can determine that even a valid marriage has to be a bona fide marriage and not be entered into solely to gain an immigration benefit, it cannot pass laws that our patently unconstitutional – even if those affected are immigrants. Secretary Napolitano recognized this soon after Windsor found section 3 of DOMA unconstitutional by announcing: “I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” Brand X has also done a great hatchet job by allowing the BIA to forever demolish Adams v. Howerton. 

America’s immigration laws have often been a window into our national psyche. The national origins quota of 1924 flowed directly from the widespread disillusionment with World War I and rising concerns over the dangers of foreign radical thought. The myriad ideological grounds of exclusion strewn throughout the McCarran-Walter Act of 1952 were eloquent if silent testimony to the tensions of the early Cold War. The Immigration Act of 1965 which abolished the national origins quota and opened up America to global migration was part and parcel of the civil rights crusade of the Great Society. Just the same way, the judicial emasculation of DOMA supported by the ready cooperation of the BIA, Attorney General Holder and Secretary Napolitano did not happen in a vacuum but, rather, emerged out of a societal sea change on marriage equality that has finally found legal expression. This is as is it should be for the meaning of America has always changed as Americans themselves have changed. The great American poet of the anti-slavery movement James Russell Lowell once famously remarked that “Once to every man and nation comes the moment to decide.” Mr. Attorney General, when it comes to the cause of marriage equality, America has made its decision.

(Guest writer Gary Endelman is Senior Counsel at FosterQuan)

POTENTIAL IMMIGRATION IMPLICATIONS FOR SAME-SEX COUPLES OF JUSTICE DEPARTMENT’S ANNOUNCEMENT REGARDING DOMA SECTION 3

By David A. Isaacson

The Justice Department announced Wednesday, that, based in part on the recommendation of Attorney General Eric Holder, President Obama has determined that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, and will no longer defend it in court. This is because, facing litigation within the jurisdiction of a circuit court of appeals (the Second Circuit) that has never ruled on the appropriate standard of review to be applied to laws concerning sexual orientation, the Administration determined that a heightened standard of review is appropriate, and that Section 3 of DOMA cannot withstand review under such a standard (although the Justice Department had previously argued that Section 3 could survive the looser rational-basis test applicable under the precedent of some courts of appeals). The announcement is available online at http://www.justice.gov/opa/pr/2011/February/11-ag-222.html, and a related letter sent by Attorney General Holder to Speaker of the House John Boehner is available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html. The announcement states, however, that Section 3 of DOMA will remain in effect until either it is repealed or “there is a final judicial finding that strikes it down,” and until such time “the Executive Branch will continue to enforce the law.” The letter to Speaker Boehner states even more specifically that “the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.”

Section 3 of DOMA, 1 U.S.C. § 7, provides that for purposes of federal law, “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.” Among other consequences under federal law, this means, according to the consistent interpretation of USCIS and the former INS, that a same-sex spouse cannot be granted immigration benefits by virtue of his or her marriage to a U.S. citizen or lawful permanent resident. This aspect of DOMA, as interpreted in a 2003 memorandum by William Yates of USCIS, was discussed in a March 2004 web article by Cyrus D. Mehta (https://blog.cyrusmehta.com/News.aspx?MainIdx=ocyrus200591724845&Month=&Source=Zoom&Page=1&Year=All&From=Menu&SubIdx=964).

The recent Administration announcement suggests that, following successful litigation, same-sex spouses whose marriages are recognized by their state of residence may find themselves able to seek immigration benefits based on their marriages, although this will for the moment not be possible without litigation given the Administration’s position that Section 3 of DOMA will continue to be enforced until a court declares it unconstitutional. Litigation is not certain to succeed, however, because Congress or individual members of Congress may intervene to defend the constitutionality of DOMA. Indeed, one of the purposes of the statutory provision, 28 U.S.C. § 530D, that required Attorney General Holder’s notification to Speaker Boehner was to enable such defense by a House of Congress or individual members, and the Attorney General said of the pending challenges to Section 3 of DOMA in his letter that Justice Department attorneys “will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.” Moreover, there is some risk that any challenge to Section 3 of DOMA could be less likely to succeed in the immigration context than in other contexts, given the “plenary power” doctrine and the history of judicial deference to Congress in this context – as in Fiallo v. Bell, 430 U.S. 787 (1977), where the Supreme Court upheld a provision of the INA that discriminated against illegitimate children – although it is also possible that Section 3 of DOMA will be voided in all contexts by a judicial holding that it is, as a general matter, unconstitutional.

Given the uncertainty regarding the timing and nature of final judicial action on this subject, it would be extremely risky for same-sex married couples to affirmatively seek immigration benefits in reliance on this announcement. It could even be quite risky for same-sex couples to marry in reliance on the announcement, if the current status of one of the spouses depends on showing a foreign residence and no intent to abandon it (such as with a B-1/B-2 visitor or F-1 student). This risk and others were discussed in more detail in a July 8, 2010 advisory from Gay and Lesbian Advocates and Defenders (GLAD) following their victory in a district court case challenging Section 3 of DOMA, http://www.immigrationequality.org/template.php?pageid=1115.

Same-sex spouses of U.S. citizens or lawful permanent residents who are already in removal proceedings, however, should consider seeking adjustment of status under INA § 245 based on an I-130 petition filed by their spouse if they are otherwise eligible for that relief, and/or cancellation of removal under INA § 240A(b) based on the hardship to their spouse if they were to be removed if they are otherwise eligible, and preserving the issue for judicial review. Similarly, same-sex couples who are not yet married could consider moving to a state that recognizes same-sex marriages if they do not reside in one already, entering into a state-recognized marriage, and seeking adjustment of status or cancellation of removal for the non-U.S.-citizen spouse based on that marriage—bearing in mind that like any other marriage, a same-sex marriage could only be a basis for immigration benefits if it were established to the satisfaction of the immigration authorities that such a marriage was bona fide, that is, was truly meant to establish a shared life together rather than being done purely for immigration purposes, and that in the case of adjustment of status based on a marriage entered into while one spouse is in removal proceedings, INA sections 204(g) and 245(e) would require a showing by clear and convincing evidence that the marriage was not entered into for immigration purposes. The concerns raised by GLAD in its previous advisory continue to apply, however, and it is therefore this author’s view that the preferable course in cases where removal proceedings have not already been commenced would generally be to await further developments before filing any petition or application based on a same-sex marriage.