Same Sex Marriage and Immigration

Earlier this year, the Supreme Court struck down section 3 of the Defense of Marriage Act of 1996 (DOMA) in US v. Windsor (113 S.Ct. 2675 (2013)). Without missing a beat, immigration courts began granting visas to same-sex marriage couples. Even the Secretary of Homeland Security, Janet Napolitano, issued a statement directing US Citizenship and Immigration Services (USCIS) to begin reviewing same-sex spousal immigration visa petitions. (http://www.dhs.gov/topic/implementation-supreme-court-ruling-defense-marriage-act). While the decision in Windsor was a human rights success, it may not be the end of the story for same-sex marriage visas.

In Adams v. Howerton, a Ninth Circuit immigration case from 1982, the court upheld a then Board of Immigration Appeals (BIA) decision to deny an immediate-relative (by spouse) visa to Sulivan, a non-citizen, who was married to his US citizen partner, Adams. The visa petition was originally denied by the Immigration and Naturalization Service (INS), which noted that US immigration laws do not recognize same-sex marriages. After the BIA affirmed the INS decision, the couple appealed to the court.

In upholding the INS and BIA decision, the court, in Adams, held that federal law determines the meaning of “spouse” for the purposes of immigration law. The court went on to hold that Congress did not intend to include same-sex couples within the federal definition of “spouse.” The most significant part of the court’s holding is that equal protection did not apply because Congress has plenary power over immigration–making the review only one of rational basis instead of stead of strict or even intermediate scrutiny.

Perhaps even more important about the decision in Adams is that it was fourteen years before DOMA even existed. This means that allowing or denying an immediate relative visa for a same-sex married partner does not necessarily turn on whether DOMA is the law or not.

The current trend has been positive, and human rights appears to be winning out. However, until the law has been explicitly changed to account for homosexuality and same-sex marriages, the decision to allow or disallow immediate-relative visa petitions for couples will remain at the whim of individuals who can make discretionary decisions.

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