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Bloggings on Dysfunctional Government

by Angelo A. Paparelli

Editor's note: Here are the latest entries from Angelo Paparelli's blog.

May 28, 2009

Don't Ask, Can't Tell: Immigration Inequality for Same-Sex Families

Family reunification, at least as far back as the Quota Law of 1921, has been and remains today a cornerstone of America's immigration laws. Yet, one growing segment of family immigration is disfavored by operation of law. These are the families of same-sex life partners who must live under a legal system that imposes family-separation rather than unity.

Section 3 of the Defense of Marriage Act (DOMA) provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

DOMA prevents America's immigration officials from recognizing marriages and civil unions that are legal in the state or nation where a same-sex couple is wed or the civil union is registered. As a result, a U.S. citizen may not petition the immigration authorities to grant a green card to a foreign life partner of the same sex, no matter the length of the relationship or the couple's level of commitment to each other.

This puts the United States out of synch with the 19 nations that recognize same-sex life partnerships for immigration purposes: Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, and the United Kingdom.

Inexplicably, while America prohibits same-sex family unity for green-card purposes, it allows committed life partners to come to this country, and remain for sometimes prolonged periods, as visitors, if the foreign life partner can prove that s/he won't stay permanently.

Don't ask (me to explain), because I can't tell (why).

Well fortunately, for the first time ever, the Senate Judiciary Committee, at the direction of its chair, Sen. Patrick Leahy, will convene a June 3 hearing on a bill that would end this injustice, the Uniting American Families Act of 2009 (UAFA).

UAFA provides the same benefits under the Immigration and Nationality Act (INA)as are granted to opposite-sex spouses. It grants these benefits to the permanent partner of a U.S. citizen, defining the phrase to mean "an individual 18 years of age or older who (A) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment; (B) is financially interdependent with that other individual; (C) is not married to or in a permanent partnership with anyone other than that other individual; (D) is unable to contract with that other individual a marriage [recognized as valid under the INA]; and (E) is not a first, second, or third degree blood relation of that other individual."

Sometimes the ground beneath our feet shifts and we can't be sure why. This time it may just be that the stunning tectonic movement is caused by the marching feet of the supporters of civil rights for binational gay and lesbian couples.

Don't ask, don't tell; just call your federal legislators and urge them to enact UAFA.


Blogger's note:

In June, I'll be attending the annual conferences of the American Immigration Lawyers Association (AILA) in Las Vegas and the American Council for International Personnel (ACIP) in Arlington, Virginia. If you plan on being at either event, please share with me your personal pet peeves about America's dysfunctional immigration system and offer your best ideas on how to fix things. I'm all ears.

Angelo Paparelli