Wednesday, March 27, 2013

The Two Supreme Court Cases and Their Potential Impact on Family-Based Immigration


The two cases currently before the U.S. Supreme Court both could have significant impacts on immigration law. The first is Hollingsworth v. Perry, which considers the constitutionality of California's gay marriage ban, Proposition 8. The second is United States v. Windsor, a case where the petitioner challenged the constitutionality of a section in the Defense of Marriage Act (DOMA). The case will address whether legally married gay couples should have access to the federal benefits afforded to married straight couples. The oral arguments for both cases are this week and decisions on both are anticipated in June.

Under the Immigration and Nationality Act and the regulatory scheme, USCIS generally looks to the place of the marriage to determine whether a marriage between a U.S. citizen and a foreign national is valid. The INA, section 245, permits a U.S. citizen to petition for a foreign national spouse if certain requirements are met such as a lawful admission. The federal government has routinely denied marriage-based adjustment in same-sex cases where the marriage occurred even in a state where the marriage was legally obtained. To date there are 9 states as well as the District of Columbia which allow for same sex marriages. If for example DOMA were found unconstitutional then USCIS would be in a position to give full faith and credit to those marriages which are lawful in the states which allow for such marriages. To date, the federal government has instead denied such cases under DOMA.

The irony is that the federal government, as expressed in a February 2011 letter from AG Eric Holder to Congress, has made it clear it will not defend DOMA in the courts; in fact the government believes that DOMA is unconstitutional because the law is subject to “heightened scrutiny.” USCIS has then been put in the paradoxical position of having to enforce an unconstitutional law. Following the AG’s letter, advocates were hopeful USCIS would start granting such cases but they have not. They have not even been put on hold. The fact that I-130s (petitions for alien relatives) have been denied is continuing, and cases have been denied even as recently as last week. For those of us who teach immigration law, it is a troubling if not interesting conundrum in which an administrative agency has perceived itself as being duty-bound to enforce the plenary power of Congress even where the Administration has made its position be known in court that the law is clearly unconstitutional.

It is too early to tell on what basis the high court will rule, whether it will hold DOMA to be constitutional, unconstitutional, arrive at a middle ground position affecting a limited number of states, or reject one or both cases out of hand as lacking in jurisdiction. It is possible given the fact that the Obama administration agrees that the law is unconstitutional that the Court could find there is no case or controversy. In the Proposition 8 case the Court could also find no standing and therefore leave the lower court’s decision to stand, invalidating Proposition 8. This would limit the effect of the case to California only. On the other hand, the Supreme Court could go the other way and find there exists a fundamental right to same-sex marriage under the Due Process clause. Such a broad ruling would have significant implications for immigrants. In such a case, all states would be required to recognize such marriages and many people would be helped in such event. The beneficiaries could be thousands if not tens of thousands of intending immigrants.

Geoffrey A. Hoffman

Director-University of Houston Immigration Clinic

See also Professor Hoffman's previous post on DOMA

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