Wednesday, June 26, 2013

Comments on the Impact of Windsor v. United States on Immigration Law?

As you may have heard by now, the Supreme Court held in Windsor v. United States that DOMA is unconstitutional. According to Justice Kennedy, who wrote the majority opinion joined by Justices Ginsburg, Breyer, Sotomayor and Kagan that, "[DOMA] is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity."

What are your thoughts on the impact of Windsor v. United states on immigrants?

Here's one view from Geoffrey Hoffman of the University of Houston Law Center.


"My take on immigration consequences of today's decision-reply to me with any more thoughts--thanks The Supreme Court's 5-4 decision in U.S. v. Windsor today striking down DOMA on Fifth Amendment equal protection grounds will have profound effects on immigrants and immigrant rights. Under the Immigration and Nationality Act (INA) and principles of comity, the immigration authorities are required to respect and apply the law where the marriage took place. The law of the place of marriage normally applies to determine the validity of the marriage. In the immigration context that might mean applying the law in Massachusetts if, for example, the U.S. citizen petitioner and foreign national beneficiary were married there, or in some other state where same-sex marriage has been legalized. Petitioners and beneficiaries who are in legitimate same-sex marriages sanctioned by the state  --  or country  --  in which the marriage arose will now under the Supreme Court's decision today be entitled to be recognized by the immigration authorities. There are three separate areas within the context of immigration where this will have the greatest impact: (1) in family-based cases involving marriage adjustment of status or consular processing;  (2) in employment-based cases where the principal applicant has a sponsoring business but also seek to bring his/her same-sex spouse as a dependent beneficiary; and (3) in waiver cases and other cases involving relief from deportation, such as for example cancellation of removal, where there must be an appropriate "qualifying relative" who is U.S. citizen or lawful permanent resident spouse. The immigration courts and the administering agency, U.S. Citizenship and Immigration Services, now will be obliged to recognize those lawful same-sex marriages. As a result, more people will be potentially eligible to apply for waivers and/or relief from removal."

Do you agree? If you're interested in having your views posted, please contact me at [email protected].


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