The recent Supreme Court ruling striking down Section III of the federal Defense of Marriage Act will have a significant impact on LGBT immigrants. Shortly after the decision was announced, President Obama instructed federal agencies to implement the decision by providing federal benefits to legally married same-sex couples. Previous to the Supreme Court ruling, federal departments and agencies, including the department of U.S. Citizenship and Immigration Services (USCIS) did not recognize same-sex marriages.
Less than three weeks after the ruling, USCIS issued the first green card ever granted to a foreign national based on a same sex marriage to an Irish woman married to a U.S. citizen. The implications are far-reaching, and many LGBT immigrants may now be able to stop deportation through same sex marriage.
LGBT immigrants who are facing deportation have options. Deportable aliens who are married to U.S. citizens or Lawful Permanent Residents (LPRs) may qualify for relief under provisions in immigration laws that are designed to keep families together. Previously, under DOMA, validly married same-sex partners were ineligible for relief. There are several ways to stop deportation through same sex marriage, but LGBT immigrants facing deportation should speak with a qualified attorney to understand which options are available based on their circumstances.
There are several steps the government must take before an alien can be legally removed. Removal proceedings are held before a judge, and the government must prove that the individual is eligible for removal. Individuals facing deportation will now be able to present evidence of their legal marriage in an immigration proceeding. However, even when an immigrant is adjudicated as removable, there are ways to appeal the ruling, or otherwise seek relief from removal.
When a person is found to be removable, he or she may apply for relief based on certain grounds. Cancellation of removability is available for LPRs as well as non-lawful residents. Typically, to be granted relief, LPRs must have been in the country for seven continuous years and show evidence of family ties to the U.S. Non-lawful residents must have resided in the U.S. for 10 continuous years and demonstrate that their removal would be a hardship to their families. Again, same-sex partners may now benefit from the legal recognition of their marriage.
Deportable persons in unmarried relationships may wonder if they are able to stop deportation through same sex marriage. While it is now possible to receive a green card through the sponsorship of a same-sex spouse, couples who marry while awaiting deportation proceedings will face the same hurdles as opposite-sex couples in similar situations. Immigration judges may presume that the marriage is a sham designed to fraudulently obtain lawful presence. Couples contemplating marriage before a deportation proceeding should probably speak to an immigration attorney before obtaining a marriage license. Marriage fraud is a crime and both partners could face serious consequences if their marriage is found to be illegitimate.
Any member of a same-sex couple who is facing deportation should seek the advice of a qualified immigration attorney.
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