Tuesday, June 30, 2015

The Immigration Consequences of Obergefell v. Hodges by Geoffrey A. Hoffman


The Supreme Court’s holding in Obergefell v. Hodges that the Fourteen Amendment guarantees the right to gay marriage in all states will have profound effects not just here in the U.S., but abroad. Immigration authorities already had recognized gay marriage if it was determined it was lawful where it was performed.  Previously, the Obama administration recognized the unconstitutionality of the so-called Defense of Marriage Act (DOMA). The administration’s position was subsequently justified when the high court struck down key provisions of DOMA in 2012 in United States v. Windsor.  In that decision, the court held that the Fifth Amendment applied to invalidate provisions of DOMA which sought to confine the federal definition of marriage and spouse to apply solely to heterosexual unions. Only after Windsor did the administration begin officially recognizing gay marriage for immigration purposes. Friday's decision in Obergefell goes even further than Windsor. Now, the Supreme Court has held not just the federal government cannot restrict the definition only to heterosexuals but that all the states must allow homosexual marriages, and importantly must recognize any such marriages which were lawfully entered into in other states (and presumably abroad, although the court’s decision does not explicitly say that).  In terms of contiguous countries to the U.S., it is worth noting that Canada has recognized and provided for homosexual marriage for about 10 years now.  In 2010, the Supreme Court of Mexico, by a vote of 8-2 upheld the constitutionality of Mexico City’s same-sex marriage law and also later ruled  that such marriages were valid throughout the entire country. For purposes of immigration, the fact that all states must allow for and provide homosexual marriages will do away with a major impediment which faced some immigrants who resided in states where such marriages previously were not permitted. Under certain situations immigrants who reside in the U.S. can adjust their status if they are in a bona fide, valid marriage to a U.S. citizen. It is no longer an impediment that they are homosexual and living in the U.S. in a state which doesn’t recognize gay marriage. That said, the decision also affects not just people trying to adjust their status but also people who are applying for certain immigration benefits, such as waivers from the immigration courts and administrative bodies, such as U.S. Citizenship and Immigration Services. Waivers may apply, depending on the type of case, where for example a person has a “qualifying relative” such as a U.S. citizen spouse and can show certain equities exist, such as “extreme hardship” to the qualifying relative. Other important relief may be available, such as lawful permanent resident cancellation of removal, and the recognition of same-sex marriage, although not specifically required by statute to make someone qualified for this type relief, will now be considered by the immigration judge as it relates to the overall equities of the case. Most importantly, as the majority of justices duly recognized in Obergefell, a decision to validate same-sex marriage is not just about the spouses involved, but also about their entire family unit:  the son or daughter of same-sex partners can now rest assured that the state will recognize their whole “family” as legitimate. Immigrants who find themselves in immigration proceedings will now be able to point to the Obergefell decision and the immigration authorities will be bound to take into account their entire family.  The government now must recognize them as bona fide parents, spouses, and children as a product of a legitimate same-sex marriage.

Geoffrey A. Hoffman, Professor and Director, University of Houston Law Center Immigration Clinic


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