Cyrus D. Mehta*
Since the ruling by Massachusetts’ highest court that gays have a right to marry, thousands of same-sex couples have been wed by rebellious mayors in cities and towns across the US.
At present, gay people are deprived of equal immigration rights. In a same-sex relationship, the US citizen partner cannot confer immigration benefits on the noncitizen partner even though they may have been validly married in a foreign country that has legalized same-sex marriages.
Also, many waivers under immigration law are predicated on one being married to a US citizen. Thus, if a gay person is put in removal proceedings, and has a same-sex partner, he or she would not be able to assert “extreme and unusual hardship” on the US citizen partner to avoid being removed from the US. Similarly, a gay person with HIV would be unable to establish the spousal relationship to apply for a waiver in order to obtain permanent residence.
In the case of nonimmigrant visas, only a spouse of the opposite sex can accompany an H-1B or L-1A visa holder to the United States on an H-4 or L-2 visa respectively. However, the State Department regulations permit a cohabiting partner of a nonimmigrant visa holder to apply for a visitor’s visa in order to accompany the principal nonimmigrant to the US. Same-sex partners could also qualify under this policy provided they can document the long-term nature of the relationship. Unlike a dependent visa granted to a spouse whose duration is for the length of the principal visa holder’s stay, the visitor visa granted to a same-sex partner generally has a one-year duration and must be renewed every six months. Moreover, cohabiting partners are also ineligible to work while in the US. On the other hand, gay and lesbian foreign nationals can independently apply for immigration status if they can qualify under any of the immigrant or nonimmigrant visa categories.
Immigration Policy Toward Gay Marriages
Assuming that more and more states recognize gay marriages, what impact would this trend have on US immigration law?
In March 2003, William Yates of the United States Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS), issued a lengthy memo instructing DHS officials about various aspects of marriage under US immigration law. One small section of that memo addresses the issue of same-sex marriages, and refers to the Defense Of Marriage Act (DOMA) in 1996. The DOMA provides a statutory definition of marriage as a legal union between one man and one woman as husband and wife and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. The DOMA applies this definition to any federal law or regulation as well as to any interpretation of the various administrative bureaus and agencies of the federal government of the US. Thus, according to Mr. Yates, to qualify as a marriage for purposes of federal law, as well as the Immigration and Nationality Act, one partner must be a man and the other a woman in a marriage. Even though the highest court in a state legalizes same-sex marriage, it would not have any impact on the ability of one same-sex partner in a marriage to confer immigration benefit on the other under current federal immigration policy.
It is just a matter of time before the DOMA is found to be unconstitutional. As more same-sex partners celebrate their marriages in foreign countries, and soon in some states of this country, their marriage must be recognized in other states and by the federal government. The constitutionally enshrined doctrine of “comity” requires one state to recognize the legal acts of another state or foreign country, so long as they do not violate public policy. Attorney General Eliot Spitzer of New York, in a recent opinion, strongly suggested New York’s law requires it to recognize gay marriages and civil unions entered into elsewhere.
The public policy argument against recognition of a foreign marriage, often used in the immigration context in marriage cases involving polygamy or incest, is also likely to be whittled down in the near future with respect to gay marriages. As the New York Times so eloquently wrote in a recent editorial supporting gay marriages (“The Road to Gay Marriage,” March 7, 2004): “This debate follows the same narrative arc as women’s liberation, racial integration, disability rights and every other march of marginalized Americans into the mainstream. Same-sex marriage seems destined to have the same trajectory: from being too outlandish to be taken seriously, to being branded offensive and lawless, to eventual acceptance.”
Taboos of 50 Years Ago
Only fifty years ago, Americans held similar attitudes towards interracial marriages. The ruling of a Virginia judge, who held Mildred Jeter, a black woman, and Richard Loving, a white man, could not marry, sounds absurd today. “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents,” the judge wrote. “And but for the interference with his arrangement there would be no cause for such marriages.” The Supreme Court in 1967 overruled this decision and broke down the last state barrier against interracial marriage. Just as the reasoning used by the Virginia judge appears to be wholly repugnant today, so would the logic being employed by opponents of gay marriage some years down the road.
Around the same time when interracial marriages were taboo, homosexual immigrants in US were considered to be “afflicted with psychopathic personality” under immigration law. In 1956 the Immigration and Naturalization Service (INS) sought to deport George Fleuti, a Swiss national and permanent resident of the US, because he was erroneously admitted when he previously entered the US following a brief trip to Mexico. Under the immigration law existing at that time, he belonged to a group of aliens “afflicted with psychopathic personality” such as homosexuals who could not gain entry into the US. Flueti ultimately won in the US Supreme Court, but not because the Supreme Court ruled that a homosexual could not be barred admission into the US. Instead, the Supreme Court ruled in Flueti’s favor on a legal technicality that his brief trip to Mexico of only two hours did not constitute an “entry” into the US for purposes of barring him admission.
The Immigration Act of 1990 finally eliminated the “affliction with psychopathic personality” ground of exclusion.
Changing Legal Landscape
2003 was a landmark year for gay rights when the Supreme Court in Lawrence v. Texas
struck down Texas’s sodomy law and gave gay people a historic victory. The challenge to Texas’s sodomy law was brought by two men who were convicted of engaging in “deviate sexual intercourse” in a private home. John Geddes Lawrence and Tyron Garner argued that the law denied them equal protection by criminalizing sexual acts of same-sex couples that were legal for different sex couples. The Supreme Court upheld their claim that criminalizing their private sexual acts deprived them of their liberty and privacy rights.
Moreover, international law also prohibits discrimination and other human rights violation based on sexual orientation grounds. The United Nations Human Rights Committee’s 1994 decision in Toonen v. Australia
reaffirmed that sexual orientation is a status protected against discrimination under Articles 2 and 26 of the International Covenant on Civil and Political Rights.
The current policy of the USCIS with respect to depriving same-sex partners immigration benefits is clearly a potential problem under both US and international law as it denies equal protection to a group solely because of their sexual orientation.
Permanent Partners Immigration Act
As a result of the heated debate over gay marriage, a majority of Americans are now moving to a middle ground in favor of civil union of the same-sex. Recent polls have found 54% of respondents favoring civil unions for gay and lesbian couples with 42% opposing them. In a poll conducted in July 2003, 57% opposed civil unions and 40% favored them.
In the immigration arena too, a similar movement has developed. The Permanent Partners Immigration Act (PPIA) was introduced in Congress by Rep. Jerrold Nadler (D-NY) in 2003. This bill would amend the Immigration and Nationality Act (INA) to add the words “permanent partner” whenever the INA contains the word “spouse.” The PPIA defines a “permanent partner” as an individual 18 years of age or older, in a committed, intimate relationship with another individual 18 years of age or older; who is financially interdependent with that other individual; and not married to or in a permanent partner relationship with any other person.” At present, fifteen other countries recognize same-sex couples for immigration purposes. The passage of the PPIA would be an interim compromise for granting immigration benefits to same-sex couples in the US, until such time that gay marriages get completely recognized and then it would no longer be necessary to qualify one as a “permanent partner.” Unfortunately, for now, the PPIA has met with obstacles in Congress against passage.
Ultimately, regardless of how the gay marriage issue develops, it is hoped that people will realize that same-sex partners who are committed to and love each other are prevented from doing so only because one partner happens to be from a foreign country. The US must grant equal immigration benefits to same-sex couples as they would to couples of the opposite sexes. Fifteen other countries grant such benefits, and there is no reason for the US not to do so.
* Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555 or email@example.com.