Usually we are talking about federal legislative proposals or
debates in statehouses over proposed state laws. Today we will discuss the decision issued by
the US Supreme Court in United States v.
Windsor, 570 U.S. _______ (2013).
In that case, a same sex couple living in New York traveled
to Canada to marry, where same-sex marriage was legal. They returned to New York and continued
living there until one of the spouses died.
By that time, New York also recognized the marriage as legal. Even so, IRS imposed a substantial tax bill
on the survivor, who paid it and then sued for a refund. Ruling in favor of the taxpayer, the Court
held that, under the 5th Amendment to the constitution, there was no
logical or rational basis for discriminating against a same-sex survivor of a
marriage deemed to be valid in the jurisdiction where the couple lived at the
time that the deceased spouse passed away, when a heterosexual survivor would
not be subject to that tax.
Promptly after that ruling, DHS issued a short Memo and FAQ,
confirming that DHS would abide by and implement that ruling. In particular, in the FAQ section, DHS
confirmed that USCIS would abide by the ruling, even where the parties live
in a state that does not recognize same-sex marriages. In stating that such a couple could file a
proper green card case, DHS said:
“Yes, you can file the
petition. In evaluating the petition, as
a general matter, USCIS looks to the law of the place where the marriage took
place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited
exceptions under which federal immigration agencies historically have
considered the law of the state of residence in addition to the law of the
state of celebration of the marriage. Whether those exceptions apply may depend on
individual, fact-specific circumstances. If necessary, we may provide further guidance
on this question going forward.”
(Emphasis supplied.)
DHS Memo and FAQs, “Implementation of the Supreme Court
Ruling on the Defense of Marriage Act,” July 2, 2013.
Whether a court in North Carolina ultimately would recognize
a same-sex marriage that was celebrated in a state where such marriages are
legal is an interesting question that involves conflicts of law provisions and
creative judging. What we do know,
however, is the current position of USCIS at the local level, which is the most
important thing. Based on meetings held
on July 24 and July 25, USCIS intends as a general rule to approve these cases
filed in North Carolina, as long as the parties can prove the marriage was
celebrated properly and pursuant to all rules of the jurisdiction where it took
place. USCIS confirmed that this policy
is based on a directive it had received from DHS. It also confirmed that it did not have any
direction as to what exceptions DHS might have been considering in issuing the
above FAQ, but promised to advise AILA as soon as it received any further
guidance on that question or any others related to this larger issue.
In addition, in a recent deportation case, the Board of
Immigration Appeals decided that, pursuant to US v Windsor, the marriage of same-sex partners should be held
valid if it met the normal rules for marriages under immigration law. Notably, in that decision, the BIA made no
mention of the need to refer to the law of the parties’ residence. Since BIA decisions are binding on DHS, we
anticipate that this will become a uniform rule.
AILA has asked DHS to confirm that this will be the rule
applied by DHS; it also has asked DHS to confirm that the rule will apply to
fiancé visa cases, cancellation of removal cases, and a number of others.
We encourage anyone in a same-sex relationship who wants to
file a green card case, or to use that relationship as a defense to a removal case,
or for any other proper purpose in an immigration case, to contact Chapman Law
Firm as soon as possible so that we can advise you of the proper strategy to
pursue.
