Immigration Strategies for LBGT Families

June 16, 2011

      The lesbian, gay, bisexual, and transgender (LGBT) community has long been subjected to unfair and unreasonable discrimination that can be significantly harmful to families and individuals in committed relationships. In recent years, the plight encountered by the LGBT community has thankfully been improving as society begins to recognize that the discrimination faced by the gay community is patently unfair, irrational, and wrong.

     The fight for equal rights by the gay community is now progressing through the legislative and court system. Although the road for equal justice continues to be difficult, there have been significant victories that garner much hope for LGBT families and couples.

     Most significant is the challenge being made to the constitutionality of the Defense of Marriage Act (DOMA), which affects the rights of gay couples to marry and obtain legal benefits based on the marriage. Under Section 3 of DOMA, marriage is defined as a union between one woman and one man. Consequently, although some US states and countries other than the United States allow gay marriages or civil unions, the Department of Homeland Security (DHS) and immigration courts do not recognize gay marriages or civil unions as valid marriages under the immigration laws. Gay families and couples therefore cannot obtain immigration benefits based on the marriage.

     In February 2011, President Obama’s administration provided the gay rights movement tremendous hope and encouragement when it announced that it would no longer support legal arguments defending the constitutionality of DOMA in federal lawsuits. Moreover, on April 26, 2011, the Attorney General issued a precedent decision in a court case that mandates the DHS and immigration courts to re-interpret the immigration laws in light of the constitutional questions surrounding DOMA.

     The court case, Matter of Dorman, 25 I&N Dec. 485 (A.G. 2011), involves a United Kingdom citizen who entered into a civil union with his US citizen partner. The DHS placed Mr. Dorman in removal proceedings for having overstayed his visa. Mr. Dorman sought to apply for relief from removal through an application known as cancellation of removal (COR). One of the requirements of COR is that the applicant have a qualifying relative who would suffer exceptional and extremely unusual hardship should the applicant be removed from the US. Qualifying relatives for purposes of COR are a US citizen or lawful permanent resident spouse, parent, and/or child. The immigration court, as well as the Board of Immigration Appeals (BIA), ruled that Mr. Dorman does not have a qualifying relative for purposes of COR as his civil union is not valid under the immigration laws. The Attorney General’s decision invalidated the BIA’s court decision, and mandated that it reconsider the case now that the constitutionality of DOMA is in question.

     It will certainly take several months, if not years, for the BIA and immigration court to render a new decision in Mr. Dorman’s case. It will also likely take time for other lawsuits challenging the constitutionality of DOMA to be resolved. If resolved in favor of the LGBT community, individuals may ultimately be able to apply for permanent residency based on a civil union, as well as seek relief from removal and waivers of inadmissibility.

     In the mean time, however, individuals in the LGBT community continue to be subjected to removal proceedings. Individuals faced with this dire situation should raise the issues related to DOMA with the immigration court to possibly seek administrative closure, termination or a continuance. Because the laws surrounding DOMA are in such a significant state of flux, individuals may be able to obtain time so that the legislatures and courts can settle the issues and hopefully provide avenues toward favorable resolutions in immigration cases.

     Until such time that the legislatures and courts have settled the issues, individuals who are not in removal proceedings or Immigration and Customs Enforcement (ICE) custody should not attempt to affirmatively apply for immigration benefits. The Attorney General has indicated that the government will continue to enforce DOMA, which means that immigration applications based on gay marriages and civil unions will continue to be denied and removal proceedings commenced against the individual. It is therefore advisable that individuals wait until resolution of the issues surrounding DOMA to submit immigration applications affirmatively seeking benefits. It is hoped that the discrimination faced by the LGBT community will be favorably resolved so that families will no longer be separated and subjected to such patent unfairness. The future of equal rights for the LGBT community appears promising and hopeful, but it is only through continued education and advocacy that equality for all can be achieved.