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Bar News - June 12, 2009

Gay Marriage and Its Impact upon Immigration


Melissa S. Penson

Enrique F. Mesa Jr.
Massachusetts, Vermont, Maine and now New Hampshire have passed legislation recognizing gay and lesbian marriages. Such couples being granted equality on a state level, will also bring gay/lesbian immigrant couples one-step closer to being equally recognized on a federal level. Despite the progression of the states towards equality, no such equality currently exists federally.

One of the main obstacles these immigrants face is that their marriages are not recognized for purposes of immigration and nationality laws, regardless of whether the relationship may be recognized as a "marriage" under the law where the relationship came into existence. Under the U.S. Immigration and Nationality Act, U.S. citizens and legal permanent residents may sponsor their spouses (and other immediate family members) for immigration purposes.But same-sex partners of U.S. citizens and permanent residents are not considered "spouses," and their partners cannot sponsor them for family-based immigration. At this time, immigration laws only "recognize marriage as a union between one man and one woman and spouse as referring only to a person of the opposite sex." According to an estimate in a recent UCLA study, there are some 8,500 same-sex couples in the U.S. who would likely seek immigration rights, including the right to become legal residents or citizens, if their unions were federally recognized.

The common belief is that if a couple "just gets married" they can remain in the country. In reality, however, and even for heterosexual married couples, a petition based upon marital status is quite difficult to obtain and involves a time-consuming process. The couple must complete extensive paperwork with USCIS (United States Citizen and Immigration Services) and provide detailed documentation to demonstrate that they have a valid and legitimate marriage. Once the application is processed, USCIS schedules an interview at a local field office near the coupleís residence.

During the interview, in which the couple may be separated, an officer will review their documentation and inquire of the couplesí relationship to ensure they are legitimately married. While separated, each is asked questions such as, "What is on your nightstand?" or "Can you describe the pictures on the bureau?" or "Is there any beer in the refrigerator?" Although as attorneys we may smirk at some of these questions (wondering if we are even able to answer them ourselves about our own homes) these questions often pose difficulty for the average person. The stressful conditions of an USCIS interview sometimes combined with a limited understanding of the language and a general inattentiveness to the details of our partnerís lives will often cause USCIS to deny admission based upon this questioning despite an otherwise legitimate marriage.

Recently in California, a lesbian couple was thrust directly into this immigration gap when U.S. Immigration and Customs Enforcement (ICE) agents arrested Shirley Tan with the intent to deport her. Mrs. Tan is an illegal immigrant from the Philippines (who has been in the United States since 1986); her wife is a US Citizen. Unlike the stereotypical image of the immigrant who has sneaked into the country, has a lengthy criminal arrest record, or who is otherwise engaged in illegal activities, Mrs. Tan is a state-at-home mom, has no criminal record, and is otherwise the woman next door. Because their California marriage is not recognized federally, Mrs. Tanís wife, Jay Mercado, contemplated having a surgical sex change in order to petition as a man. Ironically, postoperative transgender marriages are recognized federally because the Defense of Marriage Act (DOMA) does not preclude it and so long as the postoperative transsexual marriage is valid under state law.

Fortunately for this couple, on April 22, 2009, U.S. Senator Dianne Feinstein introduced a rare private bill that stayed Mrs. Tanís deportation order, thereby permitting Mrs. Tan to remain in the United States until the bill passes. If the bill does not come up for a vote before the Senate, Mrs. Tan can remain in the United States for the remainder of the duration of Congressís session (approximately one year and nine months). Despite Senator Feinsteinís efforts, the only real security for gay immigrants like Mrs. Tan would be the granting of the Uniting American Families Act (UAFA).

This Act would permit gays and lesbians to sponsor foreign-born partners for permanent residency. The legislation amends the definitions sections of the Immigration and Nationality Act to include definitions for "permanent partner" and "permanent partnership."The Act defines "permanent partner" as an individual who is at least 18 years of age who is in a committed relationship with another individual at least 18 years of age who is not a first, second or third-degree blood relative, with the intent that this be a lifelong commitment.The individual must be financially interdependent with his or her partner, cannot be married or in another permanent partnership, and must be unable to enter into a marriage recognized under the INA with the partner. Essentially, the UAFA would provide gay/lesbian couples the same opportunities already provided to heterosexual couples.

While Senator Feinsteinís private bill provided an avenue of relief for Mrs. Tan, it is very unlikely that similar bills will protect other immigrants, including New Hampshire immigrants. Every state has its own political agenda, varying from administration to administration, and very different budgets. Having a system in which the protection of individuals varies significantly from state to state is highly disorderly, chaotic, and an example of the need to update the current immigration system.

1. PL 104-199, 110 Stat. 2419 (1996) at Section 7.

2. UCLA School of Law, Williams Institute, Census Snapshot, Adam P. Romero, 2008.

Enrique F. Mesa Jr and Melissa S. Penson are a married legal team who practice in Manchester and Nashua, respectively. Enrique is licensed in Florida and practices solely immigration law with Ambassador George Bruno in Manchester, NH. Melissa is a member of the New Hampshire and Florida bars and practices both criminal and civil litigation with Smith-Weiss, Shepard & Durmer.

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