Emma Lazarus’ words immortalized on the Statue of Liberty have the New Colossus welcome the “tired, poor, huddled masses yearning to breathe free” to the proverbial Golden Door to the country at nearby Ellis Island.
As a culture, we have taken historical liberty with Lazarus’ poem and heavily romanticized our history of immigration. Our parents and grandparents – so the story goes – left their homelands with little more than few dollars in their pockets and a dream of starting a life in the U.S. to escape tyranny, persecution, and lack of economic opportunity abroad.
Yet the truth is that the Golden Door has not been open to all people seeking freedom. Since the first federal limits on immigration in 1875 formally ended the “Open Door Policy,” our immigration laws have had a history of singling out particular groups as excludable from our shores. Some of these laws, such as those provisions excluding those wish to do us harm are perfectly warranted. But one group in particular, gay and lesbian individuals, have had to endure a long (and contemporary) history of prejudiced laws aimed at them. Only this month following the Supreme Court’s landmark ruling in Windsor v. U.S., have the final formalized vestiges of this discriminatory practice given way. While some elements of equality remain elusive, we can finally say that the Golden Door is open to same-sex couples.
A Shameful History
To put it mildly, our immigration system has been less than welcoming toward gay and lesbian aliens. Its modern structure traces itself to the Immigration Act of 1952, which established the underlying architecture of our present immigration laws, codified at Title 8 of the U.S. Code (the “INA”). Included in the nation’s first real comprehensive immigration regime were new grounds of excludability, a formalized laundry list of proscriptions against groups of individuals who were barred entry to the U.S. One such group was individuals “afflicted with [a] psychopathic personality.”
In 1967, the Supreme Court was called on to clarify whether this provision of the INA applied to homosexual individuals in Boutilier v. INS. In painstaking detail, the Court reviewed the petitioner’s sexual history going back to “his first homosexual experience occur[ing] when he was 14 years of age[.]” Prior to the suit, the Public Health Service, tasked under the INA to certify any physical and mental defect or disease observed by front-line inspectors of aliens arriving at our shores, had ruled that the alien was a “sexual deviate” and thus excludable. Writing for the majority, Justice Clark held that “The legislative history of the [INA] indicates beyond a shadow of a doubt that the Congress intended the phrase ‘psychopathic personality’ to include homosexuals,” and that such a phrase was not used “in the clinical sense, but to effectuate its purpose to exclude from entry all homosexuals and other sex perverts.” Drawing heavily from Alfred Kinsey, Justice Douglas provided a sobering dissent which, unfortunately, was ahead of its time.
The next four decades reinforced the status quo. In 1981, the Board of Immigration Appeals held that a tourist from England was properly excluded after “he made an unsolicited statement to the immigration inspector that he was a homosexual.” This exclusion order was vacated by the Ninth Circuit in a decision not examining the discriminatory provisions of the INA, but only on the procedural basis that the Public Health Service did not examine the tourist. It was only in the Immigration Act of 1990 – that is, a mere 23 years ago (and 17 years after the American Psychiatric Association removed homosexuality from its Diagnostic and Statistical Manual of Mental Disorders) – that Congress removed homosexuality as a ground of exclusion from the United States.
However, disparate treatment in the law remained as to immigration benefits. In 1982, the Ninth Circuit in Adams v. Howerton held that Congress did not intend the undefined term “spouse” in the INA to extend to same-sex couples. Fourteen years later, the Adams holding was essentially codified with the enactment of the Defense of Marriage Act (“DOMA”), Section 3 of which defined “marriage” and “spouse” as excluding same-sex partners in interpreting federal law.
Until very recently, DOMA controlled the awarding of immigration benefits. Under DOMA, a U.S. citizen could not file a petition for his or her same-sex spouse or fiancé/ee living abroad. If a company wished to transfer a gay or lesbian executive from a branch overseas to the U.S., his or her spouse had to find an alternative visa because derivative beneficiary status was limited only to married heterosexual couples. Indeed, even a same-sex couple seeking to invest $1 million to start a business creating American jobs and obtain Green Cards through that investment was forced to double their capital if both wished to immigrate as EB-5 beneficiaries.
And then came Edith Windsor.
Windsor Opens the Golden Door
Despite its multinational elements, Windsor was by no means an immigration case. Edith Windsor and Thea Spyer were lifelong partners, as recognized by their 1993 registration as domestic partners in New York and their 2007 marriage in Ontario, which New York recognized. Following Spyer’s death, Windsor paid over $300,000 in estate taxes that she would not have had to pay had she had an opposite-sex spouse. In invalidating DOMA’s Section 3, the Court held those provisions as “no legitimate purpose overcom[ing] the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, [DOMA] is in violation of the Fifth Amendment.”
It was not long after the ink dried on the Windsor decision that the United States Citizenship and Immigration Services (“USCIS”) – a sub-agency of the Dept. of Homeland Security which adjudicates most requests for immigration benefits– began conferring benefits to eligible individuals. The New York Times reported that a petitioner residing in Florida was able to successfully obtain a Green Card for his same-sex spouse in Florida just two days following Windsor. This case presented an interesting twist to Windsor and our federalist system – their marriage was celebrated in New York, but Florida treats such unions as void.
In the past month USCIS has issued guidance as to how same-sex relationships will be treated under the immigration laws. Importantly, the Service has clarified that it will “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” The consequences of this directive are enormous. U.S. citizens and permanent residents may apply for Green Cards and fiancé/ee petitions immediately. Derivative benefits will also flow to same-sex spouses, obviating the need for duplicative petitions and routes to residency as those discussed above. Obtaining waivers, which require the showing of hardship to a spouse, may also contemplate the burden of deportation upon same-sex spouses as well. To their credit, USCIS has explicitly stated that applicants need not wait until the agency issues new regulations, guidance or forms to apply for benefits based on Windsor, a process which can take years.
But USCIS was only part of the equation. As a general matter, individuals seeking immigration benefits outside of the U.S. need visas to enter, and the issuance of visas is the province of the Department of State. In July, practitioners were reporting that DOS was not issuing visas but instead holding applications based on same-sex relationships in abeyance until Secretary Kerry clarified the matter. Speaking from the U.S. embassy in London on Aug. 2, Kerry stated unequivocally that “As long as a marriage has been performed in a jurisdiction that recognizes it, so that it is legal, then that marriage is valid under U.S. immigration laws, and every married couple will be treated exactly the same.” On Aug. 13, he issued a cable to all consular posts that fully implemented the Windsor holding.
Despite the Windsor holding, some controversy remains as to whether USCIS and DOS have the power to award same-sex benefits in the immigration context. In a July 18 op-ed in the New York Times, former attorney general Alberto Gonzales and attorney David Strange argued that Adams still controls the awarding of immigration benefits. With all due respect to these gentlemen, such an argument misses the mark. Ironically, a day before they wrote their article, the Board of Immigration Appeals issued a precedent decision called Matter of Zeleniak, which held that held that Windsor was applicable to non-citizen same-sex spouses seeking immigration benefits. Such precedent decisions are binding on all officers handling immigration matters, and should be respected by federal courts, given the Chevron deference due to the Board. Specifically, if the undefined term “spouse” is ambiguous, effect must be given to the BIA’s interpretation unless it is not based on a permissible construction of the INA. It would be hard to argue that the BIA’s definition of “spouse” as including same-sex individuals is impermissible given that thirteen states, D.C., and five Native American tribes have legalized the issuing of same-sex marriage licenses.
Are we there yet? Close, but not yet.
Essentially, the clarifications issued by DOS and USCIS have bestowed upon same-sex couples the same standard applied to opposite sex couples –a marriage valid under the laws where it is celebrated is treated as valid for the purpose of awarding immigration benefits, regardless of whether the couple has moved to a state that does not recognize same sex marriage.
The marriage must be valid in the state where it was celebrated, however, which brings us to a point of caution for those individuals currently seeking same-sex marriages in our Commonwealth. At the time of this writing, media outlets report that Montgomery County has issued over 100 licenses to same-sex couples for such marriages to be performed in Pennsylvania. Nonetheless, 23 Pa.C.S. § 1704 clearly prohibits such unions from having legal effect. Without diminishing the bold step that Montgomery County officials have taken in recognizing a fundamental human right, it would appear that USCIS and other immigration officials would be well-justified in denying benefits based on such unions. Accordingly, multinational same-sex couples would be well advised to celebrate their marriages in other states with clear legal recognition of same sex marriages, at least until Pennsylvania’s marital laws change by judicial or legislative intervention.
