Does the Windsor/DOMA ruling mean federal protections for gay immigrants now?

[Blue3]

A few weeks ago, there was great debate on whether gay couple should achieve equality under federal immigration law in the new immigration reform bill.

Now that the Windsor/DOMA rulings says federal protections apply to gay couples too, does that cover the immigration laws? Has it now been accomplished with this decision?

[Brittain33]

Yes. I saw one case of a deportation case stopped because the guy can now apply for residency as the spouse of a U.S. citizen. This is a massive relief for people in binational couples who are largely ignored by average people.

[Holmes]

I'm happy for afleitch. This'll make things much easier for me in the near future as well.

[True Federalist (진정한 연방 주의자)]

I don't think so.

Kennedy's decision basically boils down to Congress having to defer to the wishes of the States concerning who may be married.  However in Article I Section 9 Clause 1, Congress is explicitly granted the power to ban the immigration of people that only some States think should be admitted. (The provision was intended to apply to slaves, but because the Founders refused to explicitly refer to slavery in the Constitution, they worded it more broadly and obliquely.) Hence in immigration law, Congress does not have to defer to the States.  Until a Federal case is decided in which same-sex marriage is required to be recognized by a State that does not do so, or a case directly applicable to immigration is brought, I don't see immigration law aspects being voided.

That said, I expect that it'll only take a couple years at most for the cases needed to address that issue to wind its way thru the courts and resolve the immigration issue in the favor of SSM advocates.

[Blue3]

I just found an article that it does:

http://news.yahoo.com/supreme-court-gay-marriage-decision-helps-immigration-bill-212835350.html

[memphis]

I don't think so.

Kennedy's decision basically boils down to Congress having to defer to the wishes of the States concerning who may be married.  However in Article I Section 9 Clause 1, Congress is explicitly granted the power to ban the immigration of people that only some States think should be admitted. (The provision was intended to apply to slaves, but because the Founders refused to explicitly refer to slavery in the Constitution, they worded it more broadly and obliquely.) Hence in immigration law, Congress does not have to defer to the States.  Until a Federal case is decided in which same-sex marriage is required to be recognized by a State that does not do so, or a case directly applicable to immigration is brought, I don't see immigration law aspects being voided.

That said, I expect that it'll only take a couple years at most for the cases needed to address that issue to wind its way thru the courts and resolve the immigration issue in the favor of SSM advocates.

This was  not the opinion of a lawyer than NPR interviewed. There's still an enormous amount of uncertainty in a variety of places.

[Brittain33]

I don't think it works that way. Federal immigration law looks to see if you are married. If two women marry in NY or NH, they are married for federal purposes and therefore for immigration. DOMA's overturn was precisely about the Feds not having to make their own definition here or average things out.

[True Federalist (진정한 연방 주의자)]

Well, I doubt that the Obama administration will put up much in the way of roadblocks, but if Romney had won in 2012, his administration would be and I think the courts would back him enough to allow the case to be fought thru the courts, tho I think ultimately he'd lose.

Basically, it's at the point where each time a spouse of a same-sex marriage wants to immigrate, they'll need to litigate it until there is a final resolution of the issue.  While there's not much doubt as to the final result, the issue is not finally settled.

[Brittain33]

You are correct that Romney would have put up all kinds of administrative roadblock.

Obama's administration will direct immigration authorities to recognize lawful same-sex marriages in immigration law and that will become policy. A few bitter Enders will circumvent the policy and mistreat gay and lesbian immigrants, and hopefully get sued, but they will be out of line with policy, same as a racist immigration agent would be. It really is that simple.

[True Federalist (진정한 연방 주의자)]

It's entirely possible Obama's administration will do some roadblocking as well, just as it did with the Windsor case.  By that I mean, they'll continue to deny same-sex spouses the immigration status opposite-sex spouses would have, but not defend the policy in court.   Obama has shown a strong tendency to play rope-a-dope with laws it doesn't like, but which it can't get Congress to change.

[Brittain33]

It's entirely possible Obama's administration will do some roadblocking as well, just as it did with the Windsor case.  By that I mean, they'll continue to deny same-sex spouses the immigration status opposite-sex spouses would have, but not defend the policy in court.   Obama has shown a strong tendency to play rope-a-dope with laws it doesn't like, but which it can't get Congress to change.

Janet Napolitano has already issued a statement proclaiming that married same-sex couples will have equal standing in immigration and they are moving forward with changing policy.

[Mr. Morden]

I don't think it works that way. Federal immigration law looks to see if you are married. If two women marry in NY or NH, they are married for federal purposes and therefore for immigration. DOMA's overturn was precisely about the Feds not having to make their own definition here or average things out.

What if they were married in another country with legal SSM, and neither party lives in, has ever lived in, or intends to live in one of the 12 states with legal SSM?  The federal government recognizes their marriage for the purpose of allowing immigration, but the immigration is to Texas where SSM is not legal?

[🐒Gods of Prosperity🔱🐲💸]

Sen. Leahy certainly thinks so. He's withdrawn his amendment to the immigration bill for that reason.

[○∙◄☻¥tπ[╪AV┼cVê└]

I would assume so, but just for those whose spouse would be in a state with gay marriage.

[Brittain33]

I don't think it works that way. Federal immigration law looks to see if you are married. If two women marry in NY or NH, they are married for federal purposes and therefore for immigration. DOMA's overturn was precisely about the Feds not having to make their own definition here or average things out.

What if they were married in another country with legal SSM, and neither party lives in, has ever lived in, or intends to live in one of the 12 states with legal SSM?  The federal government recognizes their marriage for the purpose of allowing immigration, but the immigration is to Texas where SSM is not legal?

That's a good question. Given the contortions these couples go through, I fully expect they'd settle in an equality state just to avoid this problem--they are by nature more mobile people.

I expect a couple married in France which is transferred to Texas for work will have their marriage recognized by the Feds because it is legal in France and there is no obvious conflict with federal law (as there is with polygamy).

[Blue3]

DHS finalizing post-DOMA rules for immigrating gay couples:

http://www.huffingtonpost.com/2013/07/26/immigration-gay-couples_n_3658414.html

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