Fate of DOMA and LGBT Immigration Rights Still Uncertain

admin — Sun, 01 Aug 2010 04:37:17 +0000

In recent postings on this blog this author has discussed the Defense of Marriage Act (DOMA) and the ongoing US Court proceedings that are aimed at overturning this legislation in order to accord same-sex bi-national couples with privileges equal to their different-sex counterparts. Recently, a Court in Massachusetts found that the provisions of DOMA run contrary to the United States Constitution. As a result, this decision could greatly modify the framework by which Immigration petitions are adjudicated. Apparently, the Court wishes to delay radical modification of US Immigration law and procedure until such time as all issues can be addressed in an appellate proceeding. It would appear that many same-sex bi-national couples are waiting with baited breathe to see the practical implications of the recent Court decision overturning certain aspects of DOMA. However, there is some delay as the Immigration Equality blog explains. To quote directly from the Immigration Equality blog as of July 27, 2010:

Many of you have had questions about the status of the DOMA case. Just like you, we are waiting for the court to issue an order which should be happening any day now. Once the order is issued, there will be an automatic 14 day stay. We are almost certain that during that 14 day period, the government will file an appeal and we are almost certain that the stay will remain in effect during the course of the appeal. But we will keep you updated as soon as we learn of any further developments.

Those reading this post are probably curious about the practical ramifications of the “stay” of this decision. The “stay” means that the current mechanism for adjudicating US Immigration petitions will remain in place, at least for now. Therefore, those Americans and Lawful Permanent Residents with a same sex loved one living abroad will still be unable to petition and apply for same sex family visa benefits pursuant to the provisions of DOMA. Many feel, and this author concurs, that the American appellate courts, including the United States Supreme Court, are likely to find DOMA unconstitutional pursuant to American legal doctrines such as “Full Faith and Credit” and “States’ Rights“. However, as the issue remains unresolved it is unwise for anyone to make any irrevocable decisions regarding US LGBT Immigration until a final judgment is handed down without reservation.

It should be noted that judicial intervention is not the only method available for those wishing to see same sex visa benefits accorded in the same manner for those in a same sex marriage or relationship as those in a different sex marriage or relationship. The Uniting American Families Act (UAFA) would provide a statutory framework whereby same sex “permanent partners” could be granted the same Immigration benefits as those in a different-sex marriage or relationship. Although UAFA-like legislation has seen unfailing support from legislators such as Jerry Nadler, many feel that the issue of LGBT Immigration rights will ultimately be adjudicated by the US Courts.

Dedicated US Legislators Continue to Push for LGBT Immigration Legislation

admin — Sat, 24 Jul 2010 03:25:19 +0000

This blog routinely posts information regarding LGBT Immigration and announcements regarding the campaign for equal immigration rights for same-sex bi-national couples. In a recent blog posting on the Stonewall Democrats blog, it was announced that members of the United States House of Representatives are continuing to call for equal immigration rights for same-sex as well as different-sex couples. To quote directly from the blog:

Supporters of immigration and LGBT rights are renewing their calls on Congress to pass comprehensive immigration reform legislation this year that includes protections for bi-national same-sex couples.

At a press conference Thursday on Capitol Hill, several U.S. House members emphasized the importance of passing legislation to make the nation’s immigration laws more fair and enable LGBT Americans to sponsor their foreign partners for residency in the United States.

The strengthened call for passing comprehensive immigration reform comes as limited time remains in the legislative calendar for this Congress, raising questions about whether lawmakers will be able to address major legislation such as immigration reform this year.

Same-sex partners currently have no recourse under any portion of family law in the U.S. immigration code. The policy threatens to keep an estimated 36,000 bi-national same-sex couples from remaining together in the United States.

Among those who spoke in favor of passing immigration reform inclusive of this language is Rep. Jerrold Nadler (D-N.Y.), who sponsors the Uniting American Families Act, a standalone bill that would address the situation for LGBT families.

Nadler said passing immigration reform that includes protections for the LGBT community is “absolutely essential.”

“In particular, binational LGBT couples must be granted the right to sponsor their permanent partners for immigration, just as other committed and straight married couples can,” he said.

Rep. Mike Honda (D-Calif.), the sponsor of another UAFA-inclusive bill known as the Reuniting Familes Act, also addressed the importance of passing such legislation.

Honda said “ending discrimination” against bi-national same-sex couples is “in line with American values and is good for our economy.”

“We know that American workers who have family by their side are happier, healthier and more able to succeed with this essential social safety net,” he said.

Rep. Luis Gutierrez (D-Ill.), a pro-immigrant lawmaker, said passing inclusive legislation is politically viable.

“On a more political note, I am confident that we can pass immigration reform that includes the provisions of UAFA this year,” Gutierrez said, according to his prepared remarks. “Including UAFA makes the tent that much bigger and makes the coalition that much stronger.”

Late last year, Gutierrez introduced immigration legislation that was seen as a more liberal alternative to the working bill expected for introduction in Congress. Although his legislation at the time didn’t include UAFA-like language, he recently revealed his support for including bi-national LGBT families as part of immigration reform.

Other lawmakers who appeared at Thursday’s event to show their support for such legislation were Rep. Jared Polis (D-Colo.), a gay lawmaker and proponent of immigration reform, as well as Rep. Mike Quigley (D-Ill.).

Erwin de Leon, a gay D.C. resident and Blade contributor, also called for UAFA-inclusive legislation at the press conference.

He said passage of such a bill would help him obtain a green card to remain in the United States with his spouse, whom he married earlier this year in D.C.

“Thanks to vagaries of the U.S. immigration system, I still do not have my green card, even though I consider the United States my home, have lived here legally for several years and in my heart know that I am as American as my native-born cousins,” he said.

Along with lawmakers, a coalition of 37 organizations — including LGBT, immigration and faith-based groups — joined in the the chorus of voices calling on Congress to act on immigration reform.

Immigration Equality, one of the organizations working to pass UAFA, is a leading voice among these groups. Other LGBT groups in this coalition include the Family Equality Council, the National Gay & Lesbian Task Force and the Human Rights Campaign.

Rachel Tiven, Immigration Equality’s executive director, said current law is taking LGBT families “and sending them into exile.”

“Together we will fight for immigration reform that protects all families,” she said. “We will organize, we will protest, we will demand that the Uniting American Families Act and the Reuniting Families Act be part of a just, humane and comprehensive immigration reform bill.”

Still, challenges remain in passing UAFA-inclusive legislation. Patrick Egan, a gay political science professor at New York University, said the chances of Congress passing reform inclusive of LGBT families are “pretty low.”

“It’s going to be very difficult to get the 60 votes together in the Senate to move the bill forward and they’re going to be reluctant to put anything in there that jeopardizes its passage,” Egan said. “And this, unfortunately, is one of those issues that can cause you to shed a few votes on the Republican side. And I would be very surprised if that would be in any bill that gets passed by the Senate and the House.”

Sean Theriault, a gay government professor at the University of Texas, Austin, said “there is no chance” that an immigration bill immigration reform will pass this year whether or not it includes UAFA-like language.

“The reason that Democratic leaders and the White House have begun talking about immigration is because it divides Republicans from Hispanics,” he said. “On that score alone, the bill very well may contain [this] language. It is easy to be in favor of wholesale reform when the chances of it passing our zilch.”

Still, Theriault said if Democrats had to start making concessions to pass immigration reform, he couldn’t imagine “they would sacrifice the entire bill for inclusive language.”

Capitol Hill observers expect the U.S. Senate to debate and vote on comprehensive immigration reform legislation before a bill is taken up in the U.S. House. Sen. Chuck Schumer (D-N.Y.), chair of the Senate Judiciary immigration subcommittee, is expected to introduce the legislation in the Senate.

While the Senate bill has yet to be introduced, framework for the legislation made public earlier this year shows support for passing a bill inclusive of LGBT families.

In a brief interview with the Blade on Capitol Hill late last month, Schumer noted the UAFA language was in the framework for immigration reform legislation. Asked whether the provision would be in the bill upon introduction, Schumer replied, “I believe so.”

“I believe in it and I want to see it stay in,” Schumer said.

Asked when he would introduce the legislation, Schumer replied, “We have the proposal and we’re still trying to get some Republican support.”

Schumer said he’s talking to several Republican senators who would be original co-sponsors for the legislation, but declined to identify any lawmakers.

Although no U.S. senator attended Thursday’s press conference, Tiven said advocates wanted to emphasize the support of U.S. House members for UAFA-inclusive legislation.

“We wanted to show what the House is doing to match the Senate’s leadership on inclusive comprehensive immigration reform,” she said.

Julie Kruse, policy director for Immigration Equality, said her organization is planning additional events throughout the country to draw attention to passing UAFA-inclusive comprehensive immigration legislation.

She said cities in Florida, California, Texas, New York and Minnesota are potential places where these events would take place.

Supporters of immigration and LGBT rights are renewing their calls on Congress to pass comprehensive immigration reform legislation this year that includes protections for bi-national same-sex couples. At a press conference Thursday on Capitol Hill, several U.S. House members emphasized the importance of passing legislation to make the nation’s immigration laws more fair and enable LGBT Americans to sponsor their foreign partners for residency in the United States. The strengthened call for passing comprehensive immigration reform comes as limited time remains in the legislative calendar for this Congress, raising questions about whether lawmakers will be able to address major legislation such as immigration reform this year. Same-sex partners currently have no recourse under any portion of family law in the U.S. immigration code. The policy threatens to keep an estimated 36,000 bi-national same-sex couples from remaining together in the United States. Among those who spoke in favor of passing immigration reform inclusive of this language is Rep. Jerrold Nadler (D-N.Y.), who sponsors the Uniting American Families Act, a standalone bill that would address the situation for LGBT families. Nadler said passing immigration reform that includes protections for the LGBT community is “absolutely essential.” “In particular, binational LGBT couples must be granted the right to sponsor their permanent partners for immigration, just as other committed and straight married couples can,” he said. Rep. Mike Honda (D-Calif.), the sponsor of another UAFA-inclusive bill known as the Reuniting Familes Act, also addressed the importance of passing such legislation. Honda said “ending discrimination” against bi-national same-sex couples is “in line with American values and is good for our economy.”

Frequent readers of the blog will recall the the Uniting American Families Act (UAFA) is considered to be a key piece of legislation for those Americans seeking immigration benefits for their same sex foreign partner.

It should be noted that many States in the USA have either promulgated legislation legalizing same sex marriage or creating civil unions for same sex partners. However, notwithstanding the fact that same sex marriages may be solemnized and recognized by a State, the Federal government, based upon legislation such as the Defense of Marriage Act (DOMA), refuses to recognize these marriages for purposes of awarding immigration benefits. Therefore, as of the time of this writing, there is no “Same Sex Visa” accorded to LGBT bi-national couples. However, there are currently cases pending in the US Courts which may overturn this practice as many feel that this type of discrimination violates States’ Rights as well as the Equal Protection Clause of the US Constitution. However, the ultimate adjudication of these issues may have to be addressed by the United States Supreme Court if legislation is not promulgated which would grant equal immigration benefits to the same sex partner of a US Citizen or Lawful Permanent Resident.

For further details about US visas for different-sex couples please see: K1 visa.

Integrity Legal Blog » LGBT K1 visa

Fate of DOMA and LGBT Immigration Rights Still Uncertain

Dedicated US Legislators Continue to Push for LGBT Immigration Legislation