Wall Street Journal
By Joe Pallazzolo
July 18, 2013
When the Supreme Court struck down part of Defense of Marriage Act last month, granting same-sex couples the same federal benefits enjoyed by married couples of the opposite sex, the justices also fueled a debate over how U.S. immigration law treats foreign-born spouses of gay Americans.
Legal experts are divided over whether the court’s June 26 ruling cleared a path to a green card for foreign-born spouses — a path that already exists for those in opposite-sex marriages via a Petition for Alien Relative a.k.a. a Form I-130.
On the one hand are lawyers and scholars who say the ruling brought about automatic change in the 13 states where same-sex unions are permitted; the Obama administration appears to share this view.
Homeland Security Secretary Janet Napolitano has instructed the U.S. Citizenship and Immigration Services to make no distinction between a visa petition filed on behalf of a same-sex spouse and one filed on behalf of an opposite-sex spouse.
And on Wednesday, the nation’s top administrative immigration court, the Board of Immigration Appeals, weighed in on the issue for the first time since the Supreme Court dismantled DOMA.
David Neal, chairman of the BIA, which is part of the Justice Department, concluded in a three-page decision that DOMA “is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act” of 1952.
But perhaps there other impediments.
For instance, a federals appeals court held in 1982 that Congress intended to define a citizen’s “spouse,” in the Immigration and Nationality Act only as a person of the opposite sex, former Attorney General Alberto R. Gonzales and immigration lawyer David N. Strange point out in an op/ed published in Thursday’s New York Times.
The decision by the U.S. Court of Appeals for the Ninth Circuit was based primarily on the language of the law, and Congress hasn’t made any significant revisions in decades, they note. (Congress removed homosexuality as a grounds for exclusion in 1990.)
“In our view, the DOMA decision does not appear to override the Ninth Circuit’s 1982 ruling,” they write. “As Congress debates proposals to overhaul our immigration laws, it should also take up the issue of immigration benefits for same-sex couples, to provide clarity given the legal uncertainty around this matter. The Supreme Court has not settled this question, and the Obama administration should not act as though it has.”
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