Same-sex couple challenges DOMA’s impact on U.S. immigration law

On Behalf of | Jul 13, 2012 | US Citizenship |

A legally married lesbian couple recently filed a federal lawsuit hoping to stop the deportation of one of the spouses, a green card holder originally from the Philippines. The original basis for the Phillipina spouse’s green card has been challenged, and she is now slated for deportation.

According to reports, the Phillipina spouse came to the U.S. more than two decades ago. She was sponsored for a green card by her employer, and it was granted with the understanding that she was legally married to a U.S. citizen, in that case a male. However, it was later learned that it was technically only a common law marriage.

Over the course of that time, she has worked as an accounting clerk, and she ultimately did legally marry an American citizen — this time a woman. The two have been married for three years.

When a non-citizen spouse is up for deportation, he or she may seek a waiver, which is granted if it can be shown that the deportation would cause extreme hardship to the citizen spouse. In this case, the citizen spouse suffers from a medical condition that makes it impossible for her to move abroad, so the couple would be separated permanently should the Phillipina spouse be deported. She applied for the waiver, but it was denied because, although she is legally married, she does not count as a “spouse” under federal law.

“It’s clearly the kind of case where typically the waiver would have been granted,” says the president of the Center for Human Rights and Constitutional Law, which filed the suit on behalf of the couple, “but it was simply denied based on DOMA.”

The Defense of Marriage Act, passed in 1996, prohibits the federal government from recognizing same-sex marriages, even when those marriages are legal under numerous state laws. Without federal recognition of the marriage, the Phillipina spouse does not qualify for the deportation waiver.

According to the U.S. Citizenship and Immigration Services agency, DOMA will be enforced unless it is repealed or if a court of law should determine that it is unconstitutional.

This challenge to current family immigration law and DOMA is not unique, and indeed, the couple and their attorneys are seeking class-action status. In April, immigration advocates in New York filed another lawsuit, arguing that since DOMA prevents U.S. citizens in legal same-sex marriages from sponsoring their spouses for citizenship, the law is unconstitutional.

Source: Daily Reporter, “Lesbian couple files federal lawsuit hoping to halt deportation of same-sex spouses,” Amy Taxin, July 12, 2012


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