With the passage of same-sex marriage legislation by the New York state legislature on June 24, 2011, many same-sex couples stand to legally benefit from the law’s passage in a variety of ways. For example, one benefit that will immediately be felt by same-sex couples will be in matrimonial and probate proceedings. Similarly, same-sex couples will benefit from spousal benefits in a range of other areas, including workers’ compensation and other entitlements.
But the new law raises a few questions regarding immigration and citizenship for those in a same sex marriage: First, what effect will the law have on same-sex couples in immigration proceedings? More specifically, can a non-citizen same-sex spouse apply for legal permanent residency status (green card) after marrying his or her U.S. citizen partner? Second, does marriage to a same-sex U.S. citizen spouse prevent deportation of a non-citizen spouse currently in removal proceedings? An affirmative answer to these questions would undoubtedly benefit thousands of couples navigating this country’s immigration system. Unfortunately the answers are not so simple - at least not just yet. But the tide is slowly turning and same-sex couples in New York have more options today than they did prior to July 24, 2011.
One common misconception is that marriage to a U.S. citizen automatically leads to legal permanent residency (green card) for the non-citizen spouse. However, immigration law is complex and marriage to a U.S. citizen does not automatically entitle a non-citizen spouse the right to live and work in the U.S. as a legal permanent resident. Factors beyond marriage to a U.S. citizen - such as when and how the non-citizen spouse entered the U.S., are dispositive. But despite the application of specific criteria to an eligible heterosexual spouse, under existing immigration laws, a non-citizen same-sex spouse will NOT derive the same benefit of legal permanent residency through marriage. This is because of the Federal Defense of Marriage Act (“DOMA”), which prevents same-sex New York couples from deriving the full benefits of same-sex legislation. Section three of DOMA defines “marriage” for federal purposes as a union only being between one woman and one man. As a result, immigration law, which is federal law, does not recognize same-sex marriages (and civil unions).
But the tide against this inconsistency is turning - On February 23, 2011, the Obama administration, through Attorney General Holder, issued a letter stating that the Department of Justice would stop defending DOMA because “section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. . . .”. More recently, on July 19, 2011, the Obama administration publicly endorsed a bill that will repeal DOMA. The passage of the legislation, sponsored by Senator Dianne Feinstein of California, is uncertain due to the hostile national political environment on the issue. However, such legislation will point in a direction that should ultimately result in same-sex couples being placed on equal footing with their heterosexual counter-parts. Other steps by the Obama administration include an inquiry on April 26, 2011 by Attorney General Holder to the Board of Immigration Appeals (“BIA”) to determine, among other things, whether in spite of DOMA’s existence, same-sex partnership or civil union would qualify as a “spouse” under immigration laws. The BIA has yet to issue a ruling, although not much is expected to change as a result of such ruling. Nevertheless, unless and until the BIA recognizes same-sex marriage for immigration benefits or until Congress repeals DOMA or the Supreme Court rules DOMA unconstitutional, it remains the law of the land. Non-citizen same-sex couples in New York will not be eligible to benefit in the same manner their heterosexual counterparts continue to do with respect to application for legal permanent residency through marriage.
On the other hand, passage of same-sex marriage legislation in New York should have an immediate impact on some non-citizen same-sex spouses in removal proceedings. Again, the rules and regulations pertaining to removal proceedings are complex and individual facts and circumstances govern the relief available to non-citizens in removal proceedings. For example, in some circumstances, depending on how the non-citizen entered the U.S. and the duration of his or her stay here, a non-citizen in removal proceedings may be eligible to remain in the U.S. as a legal permanent resident and have his or her removal proceedings terminated, if deporting that individual would cause hardship to a US citizen spouse or child.
While there are no official reported decisions of Immigration Judges granting Cancellation of Removal due to hardship on same-sex US citizen spouses, several reports suggest that Immigration Judges are willing to stay or suspend removal cases involving same-sex couples until the legality of DOMA is settled. Both the New York Times in an article dated June 29, 2011 and the NY Daily News in an article dated March 23, 2011 reported such cases. Additionally, there is good reason to believe that immigration advocates could succeed in pushing for the Chief Counsel’s Office of the Department of Homeland Security (attorneys representing the Government in removal proceedings) for stays of removal proceedings on behalf of their clients on discretionary grounds. On June 17, 2011, John Morton, the head of Immigration and Customs Enforcement (ICE) issued a memo to his staff urging increased discretion before removing non-citizens based on a variety of factors, including marriage to a U.S. citizen. Although his memo does not explicitly refer to same-sex marriages, this memo, paired with the shifting legal and political climate surrounding DOMA, arguably provides an additional avenue of argument (if not relief) now available to same-sex couples in removal proceedings.
This article is authored by Yogi Patel, Esq. & Robert Kim (Legal Intern) – July 21, 2011
The Patel Law Firm
www.ypatellaw.com 
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