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What Practitioners Should Know about Defending Lesbian and Gay Families

by Victoria Neilson

It is heartening to see the discrimination that gay and lesbian families face under U.S. immigration law finally receiving the attention it deserves - both in mainstream media and among immigration practitioners. For immigration lawyers in the trenches, the recent victories of the lesbian, gay, bisexual and transgender ("LGBT") rights movement, such as New York's recent marriage equality win, no doubt look miraculous compared to the anti-immigrant legislation sweeping much of the country.

From an LGBT rights attorney's perspective, the February 23, 2011 announcement by the Department of Justice ("DOJ") that it would no longer defend the so-called Defense of Marriage Act ("DOMA") was truly historic: for the first time the federal government was proclaiming its belief that a federal law unfairly discriminated against lesbian and gay families and that courts should subject the law to heightened scrutiny. This sea change in the government position cannot be overstated.

And yet, the remains much misunderstanding about what the DOJ announcement means. While DOJ will no longer defend DOMA litigation in court, this does not mean that DOMA will go undefended. Instead, the House Republicans, represented by former Bush Solicitor General Paul Clement, will defend the law, undoubtedly more aggressively than DOJ had been doing.

It is also crucial to remember that the tremendous gains in this area of the law have been the result of a coordinated strategy the LGBT rights groups (GLAD, Lambda Legal, the ACLU, NCLR) who have been immersed in these issues for decades. While it appears at the moment that marriage equality for lesbian and gay families has momentum, a couple of bad decisions by circuit courts could shift the momentum the other way. With all these changes in the law, what should practitioners with lesbian and gay clients in long-term relationships with U.S. citizens do to protect their rights?

  • " Advise marriage. Until recently the common wisdom was that marrying a gay partner would not yield any benefits and could result in a finding of immigrant intent in some circumstances. Now it seems that unless a couple is successfully maintaining their relationship through tourist or student visas, marriage may help secure the foreign partner's rights in the future.

  • " Consult with organizations working on these issues. Immigration Equality and American Immigration Council are watching every development in this rapidly evolving area of the law and we will have the most up to date information to help you strategize about your particular clients. Also, please consult the practice advisories we have written.
  • " Don't rush into federal court. As explained above, the successes thus far in the fight to end DOMA have been the result of years of strategizing and collaboration. Bringing weaker DOMA challenges could lead to bad law which will set the whole movement back (and result in a loss for your client.)

  • " Fight for prosecutorial discretion. The administration has consistently stated its enforcement priority is to remove dangerous criminals. ICE should not be removing the spouses of Americans simply for overstaying their visas (particularly when, unlike other families, there is no means under the law for the American to sponsor his or her partner for immigration benefits.) Fight for proceedings to be terminated or continued and for lesbian and gay families to be granted deferred action.

    This is an exciting time - it feels as if history is on our side. But we have not yet achieved full equality and the only way we can do so is by coordinating together carefully and strategically.

    About The Author

    Victoria Neilson is the Legal Director of Immigration Equality, a national organization fighting for equal immigration rights for the lesbian, gay, bisexual, transgender and HIV-positive community. Ms. Neilson runs Immigration Equalitys pro bono asylum project and provides technical assistance and mentoring on LGBT and HIV immigration issues to attorneys around the country. She is the primary author of The LGBT/HIV Asylum Manual, a comprehensive guide for attorneys, and she has published extensively on legal issues facing LGBT and HIV-positive immigrants and refugees. Ms. Neilson received her law degree from the City University School of Law and her bachelors degree from Harvard University. Ms. Neilson is co-chair of the New York City Bar Associations Committee on AIDS and an active member of the American Immigration Lawyers Association. She is the former Litigation Director at the HIV Law Project in New York.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.