President Obama instructed the Justice Department not to defend DOMA (Defense of Marriage Act) in February 2011. See: http://www.cbsnews.com/8301-503544_162-20035398-503544.html Just today, ICE (Immigration and Customs Enforcement) terminated the removal (deportation) proceedings against Mr. Velandia from Venezuela, legally married to Mr. Vandiver, a U.S. citizen, as allowed in Connecticut. See: http://www.nytimes.com/2011/06/30/us/30immig.html?_r=1&ref=kirksemple .
What does this mean in the world of U.S. immigration law? Hard to say.
I am not familiar with the facts of Mr. Velandia’s case, but I am not getting the impression from the news report that ICE’s closing of the proceedings means a “green card” is on the way to Mr. Velandia in the mail. However, if Mr. Velandia is not being deported, he must have valid immigration status now, right? Typically, when ICE closes a deportation proceeding, we can expect that there was relief available to the applicant, which usually means that the applicant has a basis to obtain U.S. permanent residence. However, in this case, we do not know if the couple had completed the necessary prerequisites for a grant of permanent residence, or if the matter was dismissed only because ICE requested termination. We do know that ICE only requested termination and did not suggest support for a marriage-based petition, and in fact, the proceedings were terminated with no instructions or discussion.
Does it mean that the US citizen partner of a same-sex couple can now submit a marriage-based petition to obtain U.S. permanent residence for the foreign national spouse? Is the foreign national partner eligible to have his status adjusted to permanent resident based on the US citizen’s petition? Should the couple begin that process to preserve their rights in anticipation of future changes in the law, as suggested by some legal scholars and practitioners? Will ICE or USCIS now view same-sex couples any differently than heterosexual couples?
Immigration law defines “child”, “children”, “marriage” based on the traditional heterosexual couple model. Forms are created to solicit information of a father and a mother, not two fathers or two mothers. Siblings are considered to be children of a man and a woman. Will this law change the definition of “siblings” too? Of course if the children are adopted, different rules apply, and will only the US citizen spouse be able to follow those rules?
The implication does not stop here. Will consular posts now consider spousal visa applications made by same-sex couples, especially in Europe where same-sex marriages are widely accepted and legal? Right now, visas are available to “significant others,” but stop short of recognizing same sex couples as marital partners.
It’s not the first time I am stumped and it won’t be the last. But It is clear that this case in New Jersey is going to have far-reaching consequences.