California Immigrant Family Challenges DOMA

A lawsuit has been filed on behalf of Irma Rodriguez by the Public Law Center, the Center for Human Rights & Constitutional Law, the Asian Law Alliance, and the Law Offices of Manulkin & Bennett. The lawsuit, filed on July 12 of this year, challenges the notion that the Defense of Marriage Act (DOMA) can be used to reject immigration benefits to same-sex couples. Rodriguez is a US citizen and her spouse, Jane DeLeon as well as Jane’s son Jane DeLeon are immigrants. The couple met in 1992 and have lived together as life partners for 20 years. They were married in a legal ceremony in California in 2008, when same-sex marriages were legal in that state.

According to the lawsuit, DeLeon is originally from the Philippines and has been approved for an employment-based immigration visa. However, she needs a “waiver” from the USCIS (U.S. Citizenship and Immigration Service) in order to get legal immigration status, even though she is married to a US citizen. She needs the waiver because under current laws because she came to the US in 1989 with her common-law husband’s name. In most cases, these types of waivers are granted to immigrants married to US spouses in cases where the deportation of one spouse would cause hardship to the US spouse. In cases involving different-sex couples, such waivers are routinely granted. In 2011, however, DeLeon’s request for a waiver was denied, since she is married to a woman. According to the lawsuit filed on DeLeon’s behalf, her request for immigration benefits was denied due to her sexual orientation and her same-sex marriage, in violation of the Fifth Amendment to the United States Constitution.

Once DeLeon’s waiver was denied, she was told that she and her son had to leave the US within 12 months or she would be denied re-entry into the US for at least ten years. Although she had been in the US legally for several years while pursuing a visa, once the waiver was denied her legal status would be revoked.

According to the lawsuit filed in the case, the plaintiffs allege that Section 3 of the DOMA was used in this case to violate the Fifth Amendment to the United States Constitution, which guarantees equal rights without discrimination. The lawsuit also alleges that in De Leon’s case Section 3 of the DOMA was used was used to deny a same-sex couple immigration benefits, denying the couple due process. According to the plaintiffs, Section 3 of the DOMA was used in the case to deny immigration benefits that are routinely permitted to different-sex couples.