Gay Marriage Immigration and Defense of Marriage Act (DOMA)

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The 1996 Defense of Marriage Act (DOMA) denies federal benefits, including immigration benefits to same-sex couples. This can affect same sex couples who are applying for gay marriage immigration applications, since DOMA does not recognize same-sex couples. This means that when same-sex couples apply for immigration benefits, such as a K-1 visa or an I-130 visa, which allows couples to apply for permanent residency, they can be denied by the U.S. Citizenship and Immigration Services (USCIS)under DOMA. For the purposes of immigration and federal benefits, spouses are considered to be a man and a woman.

Gay rights groups have been fighting for changes for gay marriage immigration policies and have been lobbying to raise awareness about gay marriage immigration issues. The very status of the law has been called into question, however. This year, Attorney General Eric Holder deemed that DOMA is unconstitutional, as it violates equal protection laws. As a result, the Obama administration deemed that it would not defend DOMA in court. However, House Republicans chose to defend the law by hiring outside counsel for that purpose. As well, the Obama administration did say that DOMA would still be enforced, although cases could be considered individually.

A number of agencies, including ICE, have published guidelines for agents in helping them to make decisions. However, many agencies lack the resources to go through every immigration case involving same-sex couples. As a result, many such couples are automatically rejected for immigration benefits and must go through the time-consuming and costly process of appealing decisions made under DOMA. As well, agencies usually place the focus of their resources on security. For example, the recent ICE memorandum cited “national security, border security, public safety and the integrity of the immigration system” as aims. Personal rights were not stressed.

Immigration authorities and agency lawmakers can create private bills in individual immigration cases. These bills can protect individuals from deportation but usually such bills are only a last report and are usually only introduced after proceedings of deportation are underway. As well, while in theory ICE, USCIS, and the Department of Homeland Security have the authority to decide on gay couple immigration proceedings on a case by case basis, the agencies have not yet created an exception for a same-sex couple. As a result, same-sex couples have not been able to enjoy immigration benefits which have been granted to other couples, even though there does appear to be the mechanics in place to grant same-sex couples these benefits on a case-by-case basis.