In a letter to Congress on September 27, 2012, Homeland Security Secretary Janet Napolitano announced that same-sex partnerships would be considered "family relationships" when weighing discretion in noncitizen removal cases. This action is the latest in several policies by the Obama administration since 2011 to recognize same-sex relationships in immigration matters. These policies are workarounds to state and federal restrictions on recognizing gay marriage, including the Defense of Marriage Act (DOMA), which is increasingly likely to come before the Supreme Court in the months ahead.
The Napolitano announcement expands one of the factors that are to be taken into account when exercising discretion in removal cases. In addition to factors such as prior military service, or the fact that the noncitizen was brought to the United States as a child, the June 2011 Immigration and Customs Enforcement (ICE) memo outlining prosecutorial discretion criteria states that "the person's ties and contributions to the community, including family relationships" should be considered.
In additional guidance beyond the Napolitano letter to members of Congress, ICE issued a memo on October 5, 2012 stating that a long-term same-sex relationship will typically qualify as a family relationship when three factors are present: the individuals in the relationship are each other's sole domestic partners and intend to remain so indefinitely; they are not in a marital or other domestic relationship with anyone else; and, they maintain a common residence and share financial obligations and assets.
Civil liberties and immigrant advocacy groups hailed the new policy, which constitutes one of the first instances in which LGBT relationships have been formally recognized in federal immigration law, as a "huge step forward" and an "important breakthrough." Others criticized Napolitano's letter as the latest in a string of efforts by the Obama administration to sidestep Congress.
Significantly, the new policy applies not only to gay and lesbian noncitizens who are married to U.S. citizens or permanent residents, but also to individuals who are the "long-term same-sex partners" of U.S. family members. This means that the new guidance will benefit noncitizens who currently reside in states that do not permit gay marriage, as well as those who choose not to marry but are in committed relationships. A 2011 study by the Williams Institute indicates that there are nearly 29,000 same-sex couples with a U.S. citizen partner and a noncitizen.
This new policy guidance closely follows earlier policy shifts benefitting same-sex couples. In February 2011, the U.S. Department of State (DOS) issued new guidelines to allow the foreign-born same-sex partners of members of the Foreign Service to receive J-1 visas. Such visas, typically granted to exchange visitors, permit noncitizens to reside and work in the United States for up to five years. While the number of persons who have benefitted from this J-1 policy shift is not publicly available, there is no limit on the number of J-1 visas that may be granted each year.
Similarly, media reports also indicate that since 2011, a number of immigration judges at the Executive Office for Immigration Review (EOIR) have terminated or postponed the deportation proceedings of gay or lesbian partners of U.S. citizens despite non-recognition of LGBT partners under DOMA.
Immigration Benefits and DOMA
Under current law, important immigration benefits are granted based on marriage to a member of the opposite sex. U.S. citizens and permanent residents are generally allowed to petition for permanent residence status for their noncitizen spouses. The spouses of temporary visa holders in many visa categories are allowed to come to the United States on "derivative" visas. Additionally, noncitizens facing removal from the United States may be allowed to stay in the country if they demonstrate that their removal would cause exceptional hardship for their U.S. citizen or lawful permanent resident spouse.
None of these benefits are currently available to noncitizens who are in long-term domestic partnerships or even marriages with members of the same sex. Section 3 of DOMA states explicitly that for the purposes of granting all federal benefits (including immigration benefits), the term "marriage" encompasses only heterosexual marriages. As a result, individuals who lawfully married their same-sex partners outside the United States or in one of the six states that now permit gay marriage (see box) are not considered "married" for federal immigration benefits purposes.
Criticism, Legal Challenges, and Legislative Responses
DOMA's restrictions on immigration benefits for same-sex couples have garnered significant criticism, legal challenges, and legislative responses. In April 2012, five U.S. citizens and their foreign-born same-sex spouses filed a lawsuit in U.S. District Court for the Eastern District of New York, seeking a judicial order requiring DHS to grant their spouses' applications for immigration benefits. The plaintiffs alleged that DOMA, in its application to federal immigration law, violated the 5th Amendment's Equal Protection Clause. A similar legal challenge brought as a class-action suit was filed in Los Angeles in August. Both cases are pending.
Meanwhile, congressional advocates for same-sex partners have pushed for new legislation that would amend current immigration law and allow DHS to grant legal status to the same-sex partners of U.S. citizens and permanent residents despite DOMA. In April 2011, Representative Jerrold Nadler (D-NY) re-introduced the Uniting American Families Act (UAFA), a bill which would allow U.S. citizens and lawful permanent residents to petition for their "permanent partners" — a term defined in the bill as individuals who are currently in committed, intimate relationships and are financially interdependent with their significant others but are unable to legally marry them. These factors are similar to the factors cited in the ICE guidance memo issued on October 5th.
However, while UAFA now enjoys significant congressional support, and has 142 congressional cosponsors, the bill's prospects for passage remain uncertain. Several incarnations of UAFA have been introduced since 2000, both as standalone measures and as part of a comprehensive immigration reform bill. However, the measure has garnered criticism from multiple sectors, including from members of Congress who support restrictions on immigration, as well as some religious groups that traditionally oppose same-sex marriage.
The most significant chance of eliminating DOMA's remaining consequences for immigration purposes may come in the form of a broad legal challenge to the law itself. Last May, the United States Court of Appeals for the First Circuit, in a unanimous decision, struck down Section 3 of DOMA as unconstitutional under the Equal Protection Clause of the 5th Amendment. Though it is as yet unclear whether the U.S. Supreme Court will accept the First Circuit case for review, recent media reports may provide some clues. According to press reports from an event at the University of Colorado-Boulder, Supreme Court Justice Ruth Bader Ginsburg declined to answer a student's question about the Equal Protection clause's application to sexual orientation, stating that it was "most likely that we will have that issue before the court at the end of the current term."
Policy Beat in Brief
STEM Visa Bill Dies in the House. Congressional Democrats blocked passage of a bill in the House of Representatives which would have eliminated the U.S. diversity visa program and re-allocated its 55,000 immigrant visas to non-citizens holding advanced degrees in science, technology, engineering, and math (STEM) fields. While many House Democrats supported granting additional visas to STEM graduates, they were unwilling to eliminate the diversity visa program. The program, created through the Immigration Act of 1990, allows non-citizens from countries that have not sent large numbers of immigrants to the United States in recent years to apply for immigration visas through a randomized lottery process.
Romney Goes Back and Forth On Whether to Continue Deferred Action. Republican presidential nominee Mitt Romney sent somewhat mixed signals during October on how he would treat the Obama administration's Deferred Action for Childhood Arrivals (DACA) policy if elected. In an interview with the Denver Post on October 1st, Governor Romney stated that as president, he would not take away deferred action status from individuals who already had received the two-year relief from deportation and eligibility for work authorization. Two days later, the Romney campaign stated that if elected, his administration would immediately end the policy and not issue any new deferrals. Governor Romney has indicated that he may support alternative legislative remedies for potential DACA beneficiaries. Under deferred action, qualified unauthorized immigrants who are under 31 years of age and who were brought to the United States as children may be eligible to receive protection against deportation and work authorization. According to newly-released DHS statistics, 4,591 requests have been approved between August 15th and October 10th.
Legal Battle Continues Over SB 1070. In a sign that the legal battle surrounding Arizona immigration enforcement law SB 1070 is far from over, Arizona Governor Jan Brewer announced on September 27th that she would appeal a new federal district court decision blocking implementation of SB 1070's "harboring" provision. The provision makes it unlawful for any person in Arizona to conceal, harbor, or shield from detection an unauthorized immigrant.
Also in September, the U.S. Court of Appeals for the Ninth Circuit denied an emergency appeal filed by immigrant advocates to block implementation of another provision of the law. The provision requires police officers to ask individuals they stop in routine law enforcement operations about their immigration status whenever they reasonably suspect that a person is unauthorized. U.S. District Court Judge Susan Bolton enjoined this portion of SB 1070 in August 2010, but she lifted her injunction last month, based on the Supreme Court's holding in June that the reasonable suspicion portion of the law was not preempted by federal immigration law. The Ninth Circuit affirmed Judge Bolton's decision and rejected advocates' arguments that the reasonable suspicion part of the law should be blocked because it would lead to civil rights and constitutional violations.
Ninth Circuit Grants Protection to Visa Beneficiaries who "Age Out." Reversing a decision by the Board of Immigration Appeals (BIA), the U.S. Court of Appeals for the Ninth Circuit held that the government must allow noncitizens who "age out" of derivative visa beneficiary status to use the filing dates on their parents' visa applications in their own applications for immigrant visas. In several family-based immigration categories, children under 21 years of age may qualify as derivative beneficiaries on their parents' visa applications. However, because it can take years or even decades for such family beneficiaries to attain a visa to enter the United States, it is not uncommon for children to "age out" of derivative status by turning 21 before their parents' visas are issued. The new decision will expedite visa issuance for children who aged out while their parents' applications were pending. While the Ninth Circuit joins the Fifth Circuit in expanding protection for noncitizens who age out, the Second Circuit has gone the opposite way, in support of the BIA's position – suggesting this matter may eventually end up before the Supreme Court.
Congress Reauthorizes E-Verify, EB-5 Regional Centers Program. A new law signed by President Obama on September 28, 2012 provides funding to extend several immigration programs for an additional three years. The programs being extended include E-Verify, which allows employers to access immigration and social security databases to confirm that their new employees are authorized to work, as well as the EB-5 Regional Center Program. The Regional Center Program authorizes the establishment of public and private entities that create pooled investment opportunities for noncitizens applying to enter the United States through the EB-5 immigrant investor program. Through the program, noncitizens qualify to apply for lawful permanent residence if they invest large sums of money ($500,000 to $1 million) in projects in the United States that create at least ten U.S. jobs.
Haitian TPS Extended. Homeland Security Secretary Janet Napolitano announced the extension of Temporary Protected Status (TPS), until July 22, 2014, for certain Haitian nationals residing in the United States. Since 1990, the United States has granted TPS to nationals from designated countries who are unable to return to their countries of origin because of war or an environmental disaster. DHS initially designated Haiti for TPS after the country's January 2010 earthquake. TPS beneficiaries receive work authorization and protection against deportation, as well as permission to travel outside of the country and return. Eight countries are currently designated for TPS: El Salvador, Nicaragua, Honduras, Haiti, Sudan, South Sudan, Syria, and Somalia.
Taiwan Admitted to Visa Waiver Program. Taiwanese nationals visiting the United States for 90 days or less for business or tourism purposes will soon be able to travel without a visa, thanks to the recent inclusion of Taiwan in the U.S. Visa Waiver Program (VWP). Thirty-seven countries, including most of the European Union, as well as Japan, Australia, New Zealand, South Korea, Singapore, and Brunei, are currently enrolled in the program. Participants in VWP must enroll in DHS's online Electronic System for Travel Authorization (ESTA), which screens potential visitors against various homeland security and immigration databases. Taiwan is the first country to be added to the program since 2010, when Greece was admitted.
State and Local Policy Beat in Brief
Jose Padilla's Criminal Conviction Overturned. (Please note this is not the same Jose Padilla who was convicted of aiding terrorists and seeking to detonate a dirty bomb in the United States.) The Kentucky Court of Appeals overturned the drug trafficking conviction of Jose Padilla, a lawful permanent resident who appealed his case all the way to the Supreme Court on the grounds that his 6th Amendment right to counsel was violated when his criminal defense lawyer advised him to accept a guilty plea without warning him that the plea could lead to his deportation. In a landmark decision, the Supreme Court, in the 2010 case Padilla v. Kentucky, agreed with Mr. Padilla and held that the failure of a criminal defense lawyer to warn a client that a guilty plea could lead to immigration consequences could constitute ineffective assistance of counsel. The Supreme Court's decision, however, did not clearly resolve the fate of Mr. Padilla himself, who still had to prove that he had been prejudiced by his attorney's advice in order to have his conviction overturned.
Georgians Struggle with Implementation of Immigration Enforcement Measure. Georgians applying for state-issued professional licenses are facing unprecedented delays and backlogs, a side effect of the implementation of Georgia's tough immigration enforcement law, HB 87, that was unforeseen by the law's framers at the time of its passage. Among other provisions, the law requires all applicants for professional licenses to provide proof of legal status, a requirement which has forced state administrators to spend more time manually examining documentary evidence that is filed with new and renewal license applications. Media outlets have also reported that roughly 600 city and county governments in Georgia may lose state funding as a result of not complying with another one of HB 87's provisions, which requires all state municipalities and counties to enroll in E-Verify.
Deadline Passes for Large North Carolina Employers to Enroll in E-Verify. As of October 1, 2012, all employers in North Carolina with 500 or more employees must enroll in and use the federal government's E-Verify program to check that newly hired employees are authorized to work. The requirement stems from a 2011 North Carolina law that sets a series of deadlines by which all employers with 25 or more employees must enroll in the program. Employers with 100 or more employees must enroll by January 1, 2013. Employers with between 25 and 99 employees have until July 1, 2013.
Maricopa County, AZ Community Colleges to Provide In-State Tuition to Deferred Action Recipients. Community Colleges in Maricopa County, AZ, announced that they plan to allow individuals granted deferred action and work authorization under the DACA program to pay in-state tuition. This decision is in contrast with the executive order issued by Arizona Governor Jan Brewer stating that DACA beneficiaries will be ineligible for state benefits like driver's licenses. According to a Q&A listed on the Maricopa County Community Colleges website, while the community college group is "aware of the governor's order," the organization interprets current Arizona law as allowing DACA beneficiaries — and other recipients of deferred action — to qualify as legal residents of Arizona for in-state tuition purposes.