Will Binational Same-Sex Couples Get Justice?

Published in: July-August 2011 issue.

ONE OF THE 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 years 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. Nonetheless, same-sex binational couples still do not enjoy the same immigration benefits shared by opposite-sex counterparts (due to a 1982 case, Adams v. Howerton).

There is still hope that the nearly 40,000 same-sex binational couples who live in the U.S. 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 couples, along with a recent decision by Attorney General Holder.

For now, however, same-sex binational couples still find themselves in an immigration conundrum. 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 continues to deny even non-immigrant status such as “student” or “visitor” to same-sex married aliens on the presumption that citizenship will be conferred by marriage.

With more states enacting anti-immigration laws (which are unconstitutional in their own right) and the unwillingness of Congress to fix our broken immigration system, same-sex binational couples’ best hopes lie in three avenues: 1) the enactment of the Uniting American Families Act (UAFA), which would grant them the same rights accorded to heterosexual binational married and engaged couples; 2) a judicial finding that strikes down DOMA; or 3) a trend in Immigration Court findings toward reasoning that the American half of a binational couple would suffer hardships if his or her alien spouse were deported. None of these scenarios, unfortunately, is likely to play out any time soon. So what to do?

The UAFA 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. However, the bill has little bipartisan support. Readers are urged to educate their Congressional leaders, especially Republicans, about the injustices faced by same-sex binational couples and their families.

Until immigration law changes, aliens who live in states that recognize same-sex marriage (Connecticut, Washington, DC, Iowa, Massachusetts, New Hampshire, New Jersey, New Mexico, New York, Rhode Island and Vermont) could consider marrying and forming a class for purposes of a lawsuit.

A huge step forward was made in May when the Attorney General vacated a decision of the Board of Immigration Appeals (BIA) that could have resulted in the deportation of a New Jersey resident’s same-sex partner. The BIA must now consider a range of factors that could qualify a same-sex couple to be defined as spouses under New Jersey and Immigration laws.

It’s about time same-sex binational couples be granted the same immigration rights as heterosexual couples. Ardent advocacy and sound legal strategies are in order to promote family unity consistent with immigration laws and the Constitution.


Elizabeth Ricci is an attorney who practices complex immigration law in Tallahassee, Florida.



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