Fighting DOMA and Preparing for the Post-DOMA Universe
In this post I would like to address a concern that has been the subject of some discussion lately: that some same-sex binational couples seeking immigration benefits may experience difficulties in the post-DOMA universe if they reside in states that do not recognize their marriages. I believe this concern is fundamentally misguided, as I explain in detail below.
Beginning in July 2010 our law firm, Masliah & Soloway, launched a pro bono campaign called The DOMA Project (www.domaproject.org) to directly address the impact of DOMA on married gay and lesbian binational couples and to pave the way for a smooth transition to a post-DOMA universe. As part of this project, we have filed over 60 “green card” petitions for same-sex couples over the past 30 months. Thus far, about half of these petitions have been adjudicated by the USCIS; some received denial letters based solely on DOMA Section 3 (regardless of whether they were domiciled in non-recognition states) and the remaining cases are being held for further review, often pursuant to a request for abeyance. The petitions that were denied were immediately appealed to the Board of Immigration Appeals (BIA). Responding to these appeals, the BIA has not upheld a single denial by USCIS based on DOMA Section 3. In fact, of those appeals that have been decided by the BIA, ten so far, all have been remanded to USCIS with orders instructing USCIS to determine only (1) whether the marriages in question were legal under the laws of the states in which they were solemnized and (2) whether the couple met their burden of proof (evidence of cohabitation, commingled finances, a joint life together as spouses) of a bona fide marital relationship for the purpose of qualifying the beneficiary as a “spouse.” In each remand, the BIA clearly ordered the USCIS to confirm the validity of the marriages under the state law where the couple was married (and not where they reside), and asks for a determination, based on the bona fides of the marital relationship, that the foreign spouse would be eligible for a green card “notwithstanding DOMA Section 3.”
In none of these cases did the BIA or the USCIS ever assert that lack of recognition of the marriage in the state of domicile would prevent approval, absent DOMA Section 3. Nor did the fact that the couple resided in a non-recognition state (as was true for many, if not most, of the cases) impede our ability to request “abeyance” on the final decision, i.e. our request that the case be put on hold until Section 3 of DOMA is resolved by the Supreme Court. In fact, there is no evidence from this body of cases (i.e. no arguments by USCIS in their briefing, no references to state “non-recognition” laws in USCIS “DOMA denial” letters, and no language in the BIA remands) that suggests that the BIA or the USCIS will treat married same-sex couples differently depending on state of residence in the post-DOMA universe.
Creating a favorable post-DOMA context that ensures swift approval of green card petitions filed by qualified same-sex couples has been a continuing objective of The DOMA Project. We have received no feedback from any executive branch agency or from the Obama administration that suggests that binational couples can expect to face future complications arising from their domicile in states that do not recognize their marriages. However, while we remain vigilant in our advocacy for a smooth transition to a post-DOMA universe, it should be noted that the Immigration & Nationality Act looks to the law of the jurisdiction in which the marriage was entered into to determine whether the marriage is valid. The BIA explicitly affirmed this general rule in the BIA ruling in the Lovo-Lara case (involving a marriage in which one party was transgender), stating that “[t]he issue of validity of a marriage under State law is generally governed by the law of the place of celebration of the marriage.”
Historically, there have been very rare circumstances in which consideration of the law of the state of domicile has been taken into account for immigration purposes (involving prohibited marriages that were found to violate state criminal statutes). We do not expect the federal government to withhold immigration benefits from some same-sex couples based on the law of their state of residence at the time they file a green card petition after DOMA Section 3 has been struck down by the Supreme Court.
Although I feel strongly that we should not be distracted by speculation about hypothetical scenarios, the clarification and information offered here will hopefully serve to empower more members of our community to join the fight against DOMA in the court of public opinion. Make no mistake. We must stay engaged. We must challenge DOMA every day by our conduct and our belief that we are equal and that no law can ever make us unequal. We must hold accountable all government agencies that deny recognition of our marriages, deny our humanity and tear apart our families. We must hold accountable all government officials that continue to enforce a law against us that is unconstitutional and immoral. We must hold the President to his word, and insist that he take action to protect our families by putting our green card petitions on hold until the Supreme Court has ruled on DOMA. We must tell our stories every day and continue to build a movement for equality. We are getting closer to the finish line, but that does not mean we can wait for equality to come to us.
Contact us at [email protected] to find out how you can get involved.
Lavi S. Soloway, co-founder, The DOMA Project
Masliah & Soloway, PC