Rachel Browning’s Legal Blog

In his campaign for the presidency, President Barack Obama vowed to promote policies that would reform our nation’s immigration system comprehensively, those that focused not just on border security, but reforms that would “bring people out of the shadows,” keep families together and remove the various hurdles that encourage people to enter and remain in the country illegally.  So far the administration has chosen to focus on a few select issues in need of redress, such as expanding the Children’s Healthcare Program to remove barriers preventing legal immigrant children from being covered, and providing interim relief to immigrant widows and widowers of U.S. citizens who died before their spouse’s immigrant petitions could be adjudicated.   Congress seems to be taking a similar approach to reforming the system, introducing bills that target one area of reform, such as the Dream Act.  The latest suggested reforms would go to individuals involved in same-sex relationships who seek to sponsor their domestic partners for permanent residency. 

Earlier this year, Senator Patrick Leahy of Vermont introduced a bill in the Senate, the Uniting American Families Act, which would amend the Immigration and Nationality Act (INA) to eliminate discrimination in the immigration laws by permitting “permanent partners” (i.e., same-sex partners) of United States citizens and lawful permanent residents to obtain lawful permanent resident status in the same manner as spouses of citizens and lawful permanent residents.  On June 3, 2009, the Senate conducted hearings on the issue and so far the bill has 19 cosponsors.  A related bill (H.R. 1024) was introduced by Rep Nadler, Jerrold [NY-8] in the U.S. House of Representatives on March 16, 2009 and has 111 cosponsors. 

Proponents of the bill seek to end the discrimination against same-sex couples and the hardship that bi-national same-sex couples face under current provisions of the INA.  The Senate bill would amend the text of the INA by expanding eligible U.S. citizen and permanent resident petitioners to include same-sex “partners” of immigrant beneficiaries.  The bill would define “permanent partner” as an individual 18 years of age or older who: (A) is in a committed, intimate relationship with another individual 18 years of age or older in which both individuals intend a lifelong commitment; (B) is financially interdependent with that other individual; (C) is not married to, or in a permanent partnership with, any individual other than that other individual; (D) is unable to contract with that other individual a marriage cognizable under this Act; and (E) is not a first, second, or third degree blood relation of that other individual. The term “permanent partnership” refers to the relationship that exists between 2 permanent partners. 

Under current law bi-national same-sex couples do not have the benefit of immigration sponsorship based on their relationship.  The law forces these couples to make the impossible choice of living apart, or of immigrating to another country – such as Canada – which does recognize their partnership or marriage for immigration purposes.  Same-sex marriages are also recognized in Netherlands, Belgium, Spain, Canada, South Africa, Norway and Sweden.  And with the current recognition of same-sex marriage in states like Massachusetts, Connecticut, Vermont and Iowa and most recently, Maine and New Hampshire, proponents of the bill believe the timing is optimal for achieving equal rights for same-sex couples for purposes of immigration in the United States. 

After the latest California Supreme Court decision upholding Proposition 8 which defined marriage to be only the union between a man and a woman, the fight for equal rights for same-sex couples has shifted to the federal courts.  The American Foundation for Equal Rights recently filed a lawsuit on behalf of a California couple challenging the federal constitutionality of Proposition 8 and seeking an injunction of the proposition until the case is resolved, ultimately by the U.S. Supreme Court.  Other equal rights advocates have called upon President Obama to work with Congress in repealing other discriminatory laws, such as the Defense of Marriage Act and the military’s “Don’t Ask Don’t Tell” policy. 

It is unclear what impact, if any, these legal developments will have on one another, whether they will lead to an expansion of the marriage definition overall, or whether the various proposed reforms will wind up competing with one another and only complicate what should be a clear-cut equal protection issue.  Thus, the debate continues….