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SCOTUS Ruling Striking Down DOMA Also Means Victory for Same-Sex Bi-National Couples

 

Update: the DOMA ruling has already had an effect.  From Think Progress:

A New York City immigration judge immediately stopped the deportation proceedings of a gay Colombian man who is legally married to an American citizen soon after the Supreme Court struck down the Defense of Marriage Act (DOMA) for being unconstitutional, as was first reported by Americablog on Wednesday. The federally-sanctioned DOMA only recognizes marriage between a man and a woman, so Sean Brooks and his Colombian husband Steven’s marriage did not exist in the eyes of the U.S. Citizenship and Immigration Services (USCIS). Therefore, USCIS cancelled Steven’s green card petition.

The ordeal for the couple started in 2011 when Sean, the American citizen tried to file a green card petition for his husband based on their same-sex marriage. This left Steven in a visa limbo and vulnerable to deportation. Steven, who had not been back to Colombia for twelve years, applied to have his deportation cancelled based on the hardship that his deportation would incur on his spouse. The request was denied because federal law does not let the immigration judge recognize their marriage as valid.


This morning, the Supreme Court issued a historic ruling striking down the Defense of Marriage Act, resulting in a major victory for couples in same-sex relationships—Americans and immigrants alike.  Post-DOMA, US citizens and permanent residents will be able to petition for green cards for their foreign-born, same sex spouses—the same way straight bi-national couples are currently allowed to.

“DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment,” wrote Justice Anthony Kennedy for the majority in a 5-to-4 decision. “The federal statute is invalid.”

The ruling effectively leads to the policy change that Sen. Patrick Leahy (D-VT) was attempting to achieve last month, when he considered adding a marriage equality amendment to the Gang of 8 Senate immigration bill.  The amendment was deemed too controversial for some Republican Senators to support, but this morning’s ruling effectively makes the addition a moot point.

In a statement, Rachel Tiven, executive director of the LGBT-rights group Immigration Equality, said, “Today’s decision closes a discriminatory chapter in American immigration law. For 40 years, LGBT individuals were turned away at our borders; Congress called us unfit to be Americans. For LGBT couples, that exclusion continued until today. The court did what Congress would not, and recognized that all loving couples are the same under the Constitution.”

A Huffington Post article from Elise Foley captured the response from young immigrants and DREAMers:

Felipe Sousa-Rodriguez, 27, is undocumented and married to 24-year-old Juan Sousa-Rodriguez, a soon-to-be U.S. citizen. Felipe works with getEQUAL, an LGBT rights group, and received a permit from the Obama administration’s deferred action policy for Dreamers.

“I’m going to finally be able to plan for our life together in the U.S.,” he said in an email after the ruling. “It’s impossible to build a family when one needs to renew their work permit every year.”

Dreamer-led group United We Dream, which includes the Queer Undocumented Immigrant Project, called it “a huge day not only for the LGBT movement, but also for the immigrant rights’ movement.”

Department of Homeland Security Secretary Janet Napolitano indicated that DHS would move immediately to start allowing bi-national same sex couples to start applying for visas:

I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits.  I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.