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Immigration Equality: How DOMAs Repeal Affected Immigration

SIDRA VITALE, ESQ*

INTRODUCTION
he implications of the Supreme Courts decision in United States v. Windsor,1 overturning the Defense of Marriage Act (DOMA), are both simple and profound. Although, traditionally, recognition of marriage has fallen squarely in states hands, DOMA provided a federal definition of the marital state. It was the federal denial of same-sex marriage recognition conflicting with state recognition of the same marriage that underlay the recent successful challenge to DOMA.2 Another area of conflict between the federal definition of marriage and a states definition is in the immigration context. Immigration law is federal law and has thus been subject to DOMAs definition of marriage. DOMA has had a crippling effect on this area of law. DOMA has controlled determinations by the United States Citizenship and Immigration Service (USCIS, part of the Department of Homeland Security), the Immigration Court and Board of Immigration Appeals (both part of the Department of Justice), and the Department of State. Family, and especially marital, relationships have always played a crucial role in immigration law. For example, under the Immigration and Nationality Act (INA), aliens may petition for asylum or refuge for

* Instructor of Legal Research & Writing, New England Law | Boston, and Principal Attorney of the Law Office of Sidra Vitale. 1 133 S.Ct. 2675, 2682 (2013) (holding Defense of Marriage Act 3 unconstitutional). 2 Id. at 2683 (examining how Windsor applied for a refund of estate taxes paid, but DOMA denied her recognition under the statute as she was not a surviving spouse of her decedent wife).

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themselves and their spouse and children. Moreover, an immigrant with a qualifying relative (U.S. citizen or lawful permanent residentLPR parent, spouse, or child) may be eligible for relief from removal before the Immigration Court by showing exceptional and extremely unusual hardship to that qualifying relative. Finally, U.S. citizens or LPRs may petition the USCIS for a visa for their alien spouse or certain other alien family members who are inside or outside the United States, and serve as that individuals qualifying relative in seeking waivers of inadmissibility if required. Until now, immigrants in a same-sex marriage, duly solemnized by a state, have been prohibited under DOMA from receiving these rights, benefits, and protections. This article reflects briefly upon the effects in certain immigration contextsasylum, cancellation of removal, family-based petitions, and waivers of inadmissibilitycreated by application of DOMA and its repeal, and lays the groundwork for using facts specific to the same-sex marriage in support of cancellation applications and inadmissibility waivers. I. The Legal Regime Under DOMA DOMA provided a federal definition of marriage and spouse:
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.3

The INA is federal law, and thus was subject to DOMAs definition of marriage. As a result, same-sex couples were barred from marriage-based immigration benefits. II. The DOMA-Free Legal Regime

Now that DOMA no longer applies, well-established immigration case law on marriage and public policy should control. To determine whether a marriage is valid for immigration purposes, the marriage must first be valid under state law. The USCIS has stated that, effective immediately, 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.4 Previously, the Service had asserted: [N]o legal
Defense of Marriage Act 3, 1 U.S.C. 7 (2006), invalidated by Windsor, 133 S. Ct. at 2682. Press Release, Statement by Secy of Homeland Sec. Janet Napolitano on the Implementation of the Supreme Court Ruling on the Def. of Marriage Act, Dept of Homeland Sec. (July 1, 2013), available at http://www.dhs.gov/news/2013/07/01/statement-secretary3 4

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authority permits recognition of homosexual relationships as marriages for purposes of immigration and nationality laws, regardless of whether the relationship may be recognized as a marriage under the law where the relationship came into existence.5 This belief was grounded upon the Ninth Circuit decision, Adams v. Howerton,6 and upon the language of and legislative intent underlying DOMA.7 Even before the Supreme Courts decision in United States v. Windsor, the Services conclusion was severely undercut by the removal of the term sexual deviation as a basis for inadmissibility under the INA, which the Ninth Circuit had found compelling in Howerton.8 Now that DOMA no longer automatically bars same-sex marriages from being considered valid for immigration purposes, each immigrant visa application will be considered based on its facts and applicable immigration statute. Sans operation of DOMA, while a marriage cannot be contrary to public policy, the public policy issue depends upon state laws. State recognition of a marriage should generally confer recognition for immigration purposes.9 In In re De Silva, the Georgia marriage of an uncle and niece residing in New York was initially not recognized as valid for immigration purposes because the New York statute deemed such marriages incestuous.10 The Board of Immigration Appeals considered whether the terms of New Yorks Domestic Relations Law regulated marriages solemnized in other states, and looked to decisions of New Yorks highest state court to determine that it did not.11 Although the New York statute in question declare[d] a marriage between an uncle and niece to be incestuous and void, the statute by its express terms did not regulate a marriage solemnized in another State where it was legal.12 Since the marriage was legal in the state in which it was solemnized and recognized
homeland-security-janet-napolitano-implementation-supreme-court.
5 Memorandum From William R. Yates, Assoc. Dir. of Operations, U.S. Citizenship and Immigration Serv., to Regl Dirs. (Apr. 16, 2004) [hereinafter Yates Memo], available at http://www.state.gov/documents/organization/82784.pdf.

673 F.2d 1036, 1040 (9th Cir. 1982) (holding that Congress intended to exclude homosexuals from the United States).
6

Yates Memo, supra note 5. See Howerton, 673 F.2d at 1040 ([N]othing in the Act, the 1965 Amendments or the legislative history suggests that the reference to spouse in section 201(b) was intended to include a person of the same sex.).
7 8 9 In re Zeleniak, 26 I&N Dec. 158 (B.I.A. 2013) (Section 3 of the Defense of Marriage Act is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.).

In re Da Silva, 15 I&N Dec. 778, 780 (B.I.A. 1976). Id. 12 Id. (distinguishing In re Zappia, 12 I&N Dec. 439 (B.I.A. 1967)).
10 11

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as such by the state of New York, the marriage was valid for immigration purposes. Now that the restrictions imposed by DOMA have been lifted, the legal framework for recognition of same-sex marriages legally solemnized in the state of jurisdiction or in another state exists and is well established under the framework of In re De Silva and like cases. III. Implications in Asylum Context Under DOMAs regime, an alien in a same-sex marriage to an asylumseeker based on grounds such as political opinion would be ineligible to claim protection from persecution based on family membership with his or her spouse; and, similarly barred from sheltering under his or her spouses asylum application as a derivative beneficiary of that application. Asylum or refuge is governed by international treaty and domestic law.13 Asylum provides humanitarian relief and protection from persecution, and ultimately, an individual granted asylum in the United States may request and be granted lawful permanent residency.14 An asylee is a person who meets the definition of refugee under the INA and who is physically present in the United States or is at a U.S. land border or port of entry at the time he or she seeks refuge.15 A refugee is a person who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.16 Persecution is a threat to the life or freedom of, or the infliction of suffering or harm upon those who differ in a way regarded as offensive.17 Protection for spouses of asylum-seekers or asylees has been limited via DOMAs application to the merits of asylum claims based on family membership and procedural requirements governing receipt of derivative benefits based on marriage to the asylum-seeker or asylee. A. Asylum Claims Based on Family Membership Asylum claims may be grounded in family membership, including marriage. Membership in a particular social group refers to persons who

13 See 8 U.S.C. 1101(a)(42) (2006); Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.

8 U.S.C. 1159(a)(b) (2006). Id. 1158(a). 16 Id. 1101(a)(42)(A). An alien who fears anti-gay violence in his or her country may seek asylum in the United States on the basis of sexual orientation as a member of a particular social group. See In re Toboso-Alfonso, 20 I&N Dec. 819, 820, 822 (B.I.A. 1990).
14 15 17

In re Acosta, 19 I&N Dec. 211, 222 (B.I.A. 1985).

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hold a common, immutable characteristic which may be an innate one such as sex, color, kinship ties, or in some circumstances . . . a shared past experience.18 The characteristic must be one that the group either cannot change, or should not be required to change[,] because it is fundamental to their individual identities or consciences, and family membership meets these criteria.19 Thus, if family members have a fear of persecution because of their family relationship to a specific person, the family relationship places them in a particular social group due to the kinship tie, forming the foundation for a claim for asylum. Now that DOMA no longer bars recognition of same-sex married couples as family members, the kinship tie created by their marriage may also place these spouses in a particular social group for asylum purposes. B. Derivative Benefits for the Spouse of an Asylum Seeker or Asylee When an alien marries an asylum-seeker or asylee, they may automatically derive eligibility for asylum based on the marriage, independent of whether he or she has any fear of persecution. This derivative benefit may play out in different ways for the spouse. First, the spouse may be listed on the principal asylum-seekers pending request for asylum, as a derivative beneficiary, and receive a grant of asylum when the principal applicant does.20 Alternatively, if the spouse is in the United States but not included on the asylum application (and they were married at the time asylum was granted), the asylee must file a petition with the Department of Homeland Security within two years to extend the grant of asylum to his or her spouse.21 Second, the marriage, by rendering the spouse eligible for a new form of relief, may constitute grounds to reopen the spouses own removal or deportation proceeding (if they were previously ordered removed or deported), or to remand a proceeding currently on appeal. Under DOMA, in the first case, the marriage would lack validity to

Id. at 233 (emphasis added). Id.; Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986) (referring to family members as the prototypical example of a particular social group); Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993) (noting that members of a nuclear family are members of particular social groups).
18 19

DEPARTMENT OF HOMELAND SECURITY, I-589, APPLICATION FOR ASYLUM AND FOR WITHHOLDING OF REMOVAL, Part A.II, Question 24, available at http://www.uscis.gov/files/form/i-589.pdf. 21 See 8 C.F.R. 208.21(b), 1208.21(b) (2006). Similarly, the spouse and children of an individual granted refuge from outside the United States may be admitted in addition to the refugee when they are accompanying or following to join the refugee. Id. 1157(c)(2)(A). Under DOMA, however, the refugee would be admitted to the United States, along with any children, but the same-sex spouse would not be permitted to follow or join the refugee.
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place the spouse as a derivative beneficiary on the lead applicants asylum petition or extend a grant of asylum to the spouse. The spouse must meet the criteria defined in section 101(a)(35) of the INA.22 This section of the statute uses, but does not define, spouse, husband, or wife.23 Rather, DOMAs definition of spouse would control.24 As a result, a same-sex spouse would not be eligible to accompany or follow to join his or her spouse and receive a grant of asylum under the Act. Similarly, in the second case, because the marriage of a same-sex couple would not be recognized as valid for immigration purposes under DOMA, the marriage would not render the spouse facially eligible for a new form of relief based on kinship ties to a new family. An alien may move to reopen a concluded removal proceeding or remand proceedings currently on appeal if there are new facts to be proven and it appears the evidence sought to be offered is material, was not available, and could not have been discovered or presented at the former hearing.25 For example, material evidence supporting a new claim for asylum may include a new marriage where the kinship tie it creates places the alien at risk of persecution. If the marriage did not exist prior to the former hearing, it arguably could not have been discovered or presented at that former hearing.26 Since DOMA would bar recognition of the new, same-sex marriage, there would be no new material evidence to consider, and the opportunity to reopen or remand proceedings for further hearings would be denied. Both scenarios left the same-sex spouse of an asylum-seeker unable to benefit in the same way as a heterosexual partner would from his or her spouses request for asylum or grant of asylum. These distinctions between same-sex and heterosexual marriages of asylum-seekers, asylees, and refugees, no longer operate to hamper or bar relief for one member of a same-sex immigrant couple, thanks to the Supreme Courts decision in Windsor. Now, the same-sex spouse of an asylum-seeker, asylee, or refugee, has the opportunity to benefit from a grant of asylum or refuge based on the marriage. That spouse may also seek to reopen or remand his or her

8 C.F.R. 208.21(a), 1208.21(a). See 8 U.S.C. 1101(a)(35). 24 1 U.S.C. 7, invalidated by United States v. Windsor, 133 S. Ct. 2675, 2682 (2013). 25 8 C.F.R. 1003.2(c)(1) (reopening before the Board of Immigration Appeals); 8 C.F.R. 1003.23(b)(3) (reopening before the Immigration Court); see also In re Rajah, 25 I&N Dec. 127, 138 (B.I.A. 2009) (The requirements for a motion to remand are essentially the same as the requirements for a motion to reopen.).
22 23 26 Motions to reopen or remand are not restricted to applications for asylum. Rather, this is one example of how marriage to a person who has received an immigration or humanitarian benefit may benefit their spouse by creating new forms of immigration relief for that spouse.

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own pre-existing removal or deportation proceeding. IV. Implications for Cancellation of Removal Applications For an alien facing removal proceedings in Immigration Court, cancellation of removal may be available after a lengthy residence in the United States, having set down roots, and married or had children. Applying DOMA in cases involving bi-national, same-sex couples, i.e., where one partner is a U.S. citizen or lawful permanent resident (LPR) and the other is a citizen of a foreign country, has prohibited the U.S. citizen or LPR spouse from serving as a qualifying relative in such cases, damaging or even eliminating the cancellation case as a result. When an LPR is placed in removal proceedings, to receive cancellation of removal and keep his or her lawful permanent residency, the LPR is generally required to have been lawfully admitted and reside continuously in the United States for a statutorily specified length of time, be of good moral character with no disqualifying criminal history, and warrant a favorable exercise of discretion from the Immigration Judge.27 When a non-LPR is placed in removal proceedings, in order to receive cancellation of removal and obtain lawful permanent residency they are required to have been continuously physically present in the United States for a different statutorily specified length of time; be of good moral character with no disqualifying criminal history; show that removal would cause exceptional and extremely unusual hardship to his or her U.S. citizen or LPR spouse, parent, or child; and show that his or her application warrants a favorable exercise of discretion from the Immigration Judge.28 Individuals placed in deportation proceedings instead of removal proceedings prior to adoption of the exceptional and extremely unusual hardship standard, or those seeking special rule cancellation under section 203 of the Nicaraguan and Central American Relief Act (NACARA) were only required to show extreme hardship rather than exceptional and extremely unusual hardship to their qualifying relative.29

8 U.S.C. 1229b(a) (describing the criteria for cancellation of removal for LPRs). Id. 1229b(b)(1) (cancelling removal for non-lawful permanent residents); 8 C.F.R. 1240.20. Note also that the hardship on a qualifying relative who is an LPR may include being required to abandon his or her status in the United States, as LPRs who spend too much time abroad may be deemed to have given up his or her status, however unwillingly. See In re Huang, 19 I&N Dec. 749, 755 (B.I.A. 1998) (An aliens desire to retain her status, without more, is not sufficient.).
27 28

See 8 C.F.R. 1240.65(b), 1240.66(b). Relief under section 203 of NACARA may also be sought affirmatively from USCIS. 8 C.F.R. 240.66. See infra Part V.C., for the extreme hardship standard.
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A. Applying the Exceptional and Extremely Unusual Hardship Standard to the Same-Sex Marriage for Cancellation of Removal Although the exceptional and extremely unusual hardship standard is higher than the INAs former standard of extreme hardshipstill used in considering waivers of inadmissibility, among others, Part V, infrathe standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief.30 The hardship analysis includes the following factors: the age of the alien; family ties in the United States and abroad; length of residence in the United States; health or medical conditions; conditions in the country of removal (economic and political); financial status (business and occupation); the possibility of other means of legalizing status; immigration history; and position in or ties to the community.31 Family separation is a key consideration: exceptional and extremely unusual hardship analysis considers both the possibility of the qualifying relative remaining in the United States or reuniting with the alien in his or her home country.32 Now that DOMA no longer applies, exceptional and extremely unusual hardship to a U.S. citizen or LPR same-sex spouse of an alien seeking cancellation of removal may include the following that are unique to the marriage: anti-gay violence, illegality of the same-sex couples relationship in the foreign country, or marriage laws in the foreign country that do not allow for the same-sex spouse to accompany his or her alien relative to the alien relatives country by requesting immigration status based on the marriage.

30 In re Recinas, 23 I&N Dec. 467, 470 (B.I.A. 2002) (articulating factors for consideration in exceptional and extremely unusual hardship analysis); In re Monreal-Aguinaga, 23 I&N Dec. 56, 5863 (B.I.A. 2001) (discussing the change from extreme hardship to exceptional and extremely unusual hardship as the applicable legal standard). 31 In re Anderson, 16 I&N Dec. 596, 597 (B.I.A. 1978). The Board of Immigration Appeals has considered the following: whether qualifying relative U.S. citizen children know any other way of life from the United States; whether they read, write, or speak the language of the country of removal; whether they are dependent upon the alien seeking cancellation; the aliens ability to care for them in the country of removal; the strength of the family system in the United States providing financial and emotional support without which the aliens hardship would increase and affect hardship of the U.S. citizen children; and the aliens prospects of immigrating to the United States later. In re Recinas, 23 I&N Dec. 467, 46972 (B.I.A. 2002).

See, e.g., Babai v. INS, 985 F.2d 252, 25455 (6th Cir. 1993) (holding that an immigration judge must consider hardship to a U.S. citizen child if that child remained in the United States as well as hardship if that child followed the parent).
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Anti-Gay Violence or Prejudice in the Country of Removal as Evidence of Exceptional and Extremely Unusual Hardship to a Qualifying Relative Same-Sex Spouse

Exceptional and extremely unusual hardship to the qualifying relative spouse is evidenced by anti-gay violence or prejudice in the aliens country to which the U.S. citizen or LPR spouse would be subject if the U.S. citizen or LPR spouse accompanied the alien relative to that relatives country. Exceptional and extremely unusual hardship is more than extreme hardship, but not so much that the hardship is unconscionable.33 To determine whether hardship to a qualifying relative is exceptional and extremely unusual, it must be uncommon, an exception, or not the norm.34 Anti-gay violence or threats of violence is common in many countries.35 For example, according to the LGBT human rights organization Grupo Gay da Baha in Brazila country famous for its bonhomieone gay person was murdered every thirty-six hours in 2011, and one every twenty-six hours in 2012.36 Living under the threat of such violence based on sexual orientation is uncommon because an average qualifying relative (i.e. a heterosexual spouse) would not be singled out for such threat upon following his or her spouse to that spouses country. Thus, anti-gay violence in the country of removal constitutes evidence of exceptional and extremely unusual hardship to the qualifying relative same-sex spouse. Moreover, employability decimated by anti-gay prejudice constitutes a substantial negative financial impact of departure from the United States.
Monreal-Aguinaga, 23 I&N at 6061. Id. at 59. 35 See, e.g., DEPT OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2012, available at http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/#wrapper (select Build A Report menu item, then select Section 6 Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity, then select specific nations or all listed nations to compile a report across all nations available) (demonstrating widespread anti-gay violence in countries around the globe); EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS, EU LGBT SURVEY: EUROPEAN UNION LESBIAN, GAY, BISEXUAL, AND TRANSGENDER SURVEY 3 (2013), available at http://fra.europa.eu/sites/default/files/eu-lgbtsurvey-results-at-a-glance_en.pdf (reporting that almost half of respondents said that they had felt personally discriminated against or harassed on the grounds of sexual orientation in the year preceding the survey; a majority who were attacked in the past year said that the attack or threat of violence happened partly or entirely because they were perceived to be LGBT).
33 34 36 Assassinatos de LGBT no Brasil: Relatrio anual do GGB indica 266 homicdios em 2011, GRUPO GAY DA BAHA (Apr. 2, 2012), http://www.ggb.org.br/assassinatos%20de%20homossexuais%20no%20brasil%202011%20GG B.html; see also Jean Paul Zapata, One Gay Brazilian Murdered Every 26 Hours in 2012, GAY STAR NEWS (Mar. 10, 2013), http://www.gaystarnews.com/article/one-gay-brazilian-murderedevery-26-hours-2012100313.

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Economic hardship may be sufficient to show exceptional and extremely unusual hardship where there is a complete inability to find work.37 The European Union Agency for Fundamental Rights reported in 2009 that nearly half of LGBT persons surveyed were afraid to be out at work for fear of reprisal, and are equally afraid to out themselves during the hiring process.38 Should such anti-gay prejudice translate under the particular facts of a case to limiting or barring the qualifying relative spousewho, if accompanying his or her spouse upon removal from the United States, has little choice to be outfrom finding work, exceptional and extremely unusual hardship may be shown. In sum, the prospect of anti-gay violence, threats of violence, and antigay prejudice is evidence of exceptional and extremely unusual hardship faced by the U.S. citizen or LPR spouse of an alien seeking cancellation of removal if cancellation were denied and the aliens spouse followed him or her to the country of removal. 2. Legal Prohibition of Homosexuality in the Country of Removal as Evidence of Exceptional and Extremely Unusual Hardship to a Qualifying Relative Same-Sex Spouse

In addition, legal prohibition of homosexuality in the country of removal is evidence of exceptional and extremely unusual hardship to the qualifying relative by criminalizing the qualifying relative who accompanies his or her spouse to that country. Homosexuality is still a crime in many countries. In 2011, the Council for Global Equality compiled a list of countries that criminalize homosexuality, male or female, at that time comprising thirty-seven African nations, twenty-two Asian nations, two European nations, fifteen Middle East and North African nations, and eleven nations from the Americas and the Caribbean.39 Criminalization of homosexuality is considered a country condition in the country of removal for the purposes of the hardship analysis for cancellation.40 Where homosexuality is unlawful, the U.S. citizen or LPR same-sex spouse who
37 Urban v. INS, 123 F.3d 644, 648 (7th Cir. 1997); Carrette-Michel v. INS, 749 F.2d 490 (8th Cir. 1984); but see Luna-Rodriguez v. INS, 104 F.3d 313, 315 (10th Cir. 1997) (holding inability to find work without more is insufficient). 38 EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS, HOMOPHOBIA AND DISCRIMINATION ON GROUNDS OF SEXUAL ORIENTATION AND GENDER IDENTITY IN THE EU MEMBER STATES, PART II THE SOCIAL SITUATION 56 (2009), available at http://fra.europa.eu/sites/default/files/fra_uploads/397-FRA_hdgso_report_part2_en.pdf.

Countries Where Homosexuality Is Criminalized, COUNCIL FOR GLOBAL EQUALITY, http://www.globalequality.org/component/content/article/166 (last visited Sep. 12, 2013). 40 In re Anderson, 16 I&N Dec. 596, 59798 (B.I.A. 1978); In re Recinas, 23 I&N Dec 467, 46972 (B.I.A. 2002).
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accompanies his or her spouse to that country is by definition a criminal. Requiring a U.S. citizen or LPR to break the law in the country of removal simply to be with his or her spouse is, a priori, evidence of a hardship so well beyond that typically associated with removal from the United States that it is exceptional and extremely unusual. 3. Marriage Laws in the Country of Removal Barring Reunification Abroad as Evidence of Exceptional and Extremely Unusual Hardship to a Qualifying Relative Same-Sex Spouse

Marriage laws in the country of removal that do not recognize the same-sex marriage of the alien and U.S. citizen or LPR spouse for immigration purposes could bar the qualifying relative spouse from reunifying with his or her alien spouse who was ordered removed. This constitutes evidence of exceptional and extremely unusual hardship to the qualifying relative U.S. citizen or LPR spouse. At the time of this writing, only eleven countries recognize same-sex marriages throughout the entire country: Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, and Sweden.41 Three others have regional variation of recognition of samesex marriages: Brazil, Mexico, and the United States. Many countries immigration laws require some relationship to grant status for residence or derived citizenship in that country such that a U.S. citizen or LPR spouse of a citizen relies on their marriage to obtain status in that country, just as the same U.S. citizens or LPRs spouse attempts to rely on the marriage to receive status in the United States.42 However, only same-sex couples from one of the eleven countries listed above would be able to take advantage of marriage-based status in their spouses country. Since family separation is a key factor in the hardship analysis, a marriage that is considered invalid in the country of removal, limiting or barring family reunification in that country, is evidence of exceptional and extremely unusual hardship to the qualifying relative. If a member of a same-sex married couple is denied lawful status in the aliens country based on marriage because the same-sex marriage is not recognized in that country, the couple cannot reliably expect to reunite in that country and the qualifying relative suffers due to the family separation.

41 Caitlin Stark & Amy Roberts, By the Numbers: Same-Sex Marriage, CNN, http://www.cnn.com/2012/05/11/politics/btn-same-sex-marriage (last updated Aug. 29, 2013, 3:39 PM).

Cf. OFFICE OF PERSONNEL MANAGEMENT, CITIZENSHIP LAWS OF THE WORLD 9 (2001) (describing criteria for ultimate naturalization following marriage to a citizen of various countries).
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B. Discretionary Eligibility for Relief Both the LPR and the non-LPR applicant for cancellation of removal must not only meet the statutory criteria discussed above, but also show that his or her application warrants exercise of the judges discretion in their favor. Generally, discretionary eligibility for cancellation relies on factors similar to those considered in the hardship analysis. This includes positive factors, such as family ties in the United States; residency of long duration in the United States, evidence of hardship; armed forces service, if any; positive employment history; existence of property or business ties; existence of value and service to the community; proof of genuine rehabilitation, if a criminal record exists; evidence attesting to good moral character; and negative factors such as the nature of underlying circumstances of grounds of removal, additional significant immigration violations, existence of criminal record, and other evidence of bad character or undesirability.43 Under United States v. Windsor, identification of spouses as qualifying relatives for cancellation of removal, as well as identification of family ties in the U.S. for the alien partner of a same-sex married couple, are no longer restricted based on a definition of marriage as solely heterosexual. This allows country conditions specifically affecting the same-sex couple to be examined in the hardship analysis, and the complete family network to be considered as a positive factor in determining whether to grant an application in the exercise of discretion. V. Implications for Family-Based Visa Petitions and Waivers of Inadmissibility A. Petitioning for the Spouse U.S. citizens and LPRs may petition for immigrant visas for certain family members. U.S. citizens may file for their spouses, children, siblings, and parents. In contrast, LPRs may file for their unmarried children under twenty-one, unmarried sons or daughters over twenty-one, and spouses.44 Spouses of U.S. citizens are automatically eligible to adjust status to lawful permanent residency once a Petition for Alien Relative filed on their behalf is approved.45 This means that, barring complications, as a general rule

43

In re Marin, 16 I&N Dec. 581, 58485 (B.I.A. 1978); In re C-V-T-, 22 I&N Dec. 7, 11 (B.I.A.

1998). See 8 U.S.C. 1153(a)(1)(4) (2006) (listing family-sponsored immigrant categories who must wait for a visa to become available); 1151(b)(2)(A)(i) (defining immediate relatives for whom no waiting list applies: children, spouses, and parents of U.S. citizens).
44 45

8 U.S.C. 1151(b)(2)(A)(i) (defining spouse as an immediate relative).

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such immediate family members get their green cards without delay once the initial family-based petition is approved. Under DOMA, a U.S. citizen or LPR may not obtain a visa for his or her same-sex spouse. Now that DOMA no longer operates to bar recognition of same-sex marriages, green cards have already been issued to eligible partners in same-sex marriages to U.S. citizens.46 B. Petitioning for the Adult Child: Married v. Unmarried Applying DOMA has complicated determining whether a U.S. citizen or LPRs adult child is married, for the purposes of the INA, when determining eligibility as a beneficiary of a visa petition. LPRs may only petition for unmarried adult sons or daughters (over twenty-one),47 and the son or daughter must maintain his or her eligibility by remaining unmarried until adjudication of the application.48 The waiting list from petition approval to LPR status takes years to process due to limits on the number of green cards issued per year per category of immigrant. For example, the application for lawful permanent residency of an unmarried adult son or daughter of an LPR, whose family-based visa petition was filed in 2005, has only recently been adjudicated by USCIS in July 2013.49 Thus, for adult children of LPRs, being married or unmarried for immigration purposes affects their eligibility as beneficiaries of a visa petition filed by that LPR parent. Under immigration statute, beneficiaries on a waiting list may transfer from one list to another due to marriage, their petitioner naturalizing, or other events, so long as there exists another category to move into.50 An adult child in a same-sex marriage who was considered unmarried under DOMA may now be considered married and lose his or her place on the waiting list for a visa as a result. C. Waivers of Inadmissibility: Extreme Hardship A waiver of inadmissibility is required when, during consular processing, an alien discloses acts that make him or her inadmissible to the United States, such as previous unlawful entry to the country. Consular
Julia Preston, Gay Married Man in Florida is Approved for Green Card, NY TIMES (June 30, 2013), http://www.nytimes.com/2013/07/01/us/gay-married-man-in-florida-is-approved-forgreen-card.html. 47 See 8 U.S.C. 1153. 48 8 U.S.C. 1255(a) (stating that an alien must be eligible to receive an immigrant visa at the time of adjustment of status to that of a resident).
46 49 BUREAU OF CONSULAR AFFAIRS, UNITED STATES DEPARTMENT OF STATE, VISA BULLETIN NO. 58, IMMIGRANT NUMBERS FOR JULY 2013 2 (July 2013), available at http://travel.state.gov/pdf/visabulletin/visabulletin_july2013.pdf. 50 See, e.g., 8 U.S.C. 1153(h)(3) (allowing minor child beneficiaries of visa petitions filed by their parents to convert immigrant categories upon reaching adulthood).

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processing occurs when an alien is outside the United States requesting an immigrant visa to enter the country. The petitioning relative files the same family-based petition described above, and once the petition is granted by the USCIS, the aliens application for an immigrant visa is adjudicated by the Department of State.51 Via this process, aliens and their petitioners show the bona fides of the relationship between them, disclose any criminal history of the alien, and any grounds of inadmissibility such as prior unlawful presence in the United States or previous removal or deportation. Generally, aliens may be inadmissible for certain periods, or indefinitely; some grounds of inadmissibility may be waived, but not all.52 Under DOMA, a same-sex couple seeking a visa for one spouse would never reach the consular processing stage, unless marriage was not the basis for the visa. Should a petition for an alien relative be based on different grounds, such as on a different relationship (parent-child, perhaps) or on employment, such that the aliens case progresses to the consular processing phase, DOMA would have been applied during the waiver of inadmissibility phase if the alien were found inadmissible. Where a heterosexual couple comprised of a U.S. citizen or LPR and an alien would present evidence of extreme hardship to the U.S. citizen or LPR spouse to request waiver of that aliens inadmissibility, DOMA prohibited consideration of that evidence for a same-sex married couple by rejecting the spouse as a qualifying relative. Instead, the alien would be limited to presenting evidence of extreme hardship to any other qualifying relative they might have, even though anti-gay prejudice or legal restrictions against homosexuality in the aliens country might present particularly strong evidence of extreme hardship to his or her spouse. Extreme hardship to the qualifying relative for waiver of inadmissibility is examined from two perspectives: first, if the qualifying relative accompanies the alien to the aliens country, and second, if the qualifying relative and alien remain separated. Extreme hardship, which must be shown before a waiver is granted, is hardship above and beyond that merely caused by separation from a family member if an alien was denied admission to the United States, or by relocation.53 The hardship analysis is a totality-of-the-circumstances analysis
8 U.S.C. 1201. Id. 1182 (listing grounds for inadmissibility and waivers where authorized). 53 Pilar Peralta Mihalko, USCIS Adjudication of I-601 Applications Filed Overseas, NATL IMMIGR. CONSULAR CONF., http://www.USCIS.gov/USCIS/Resources/Resources%20for%20Congress/Congressional%20Re ports/2011%20National%20Immigration%20%26%20Consular%20Conference%20Presentation s/I-601_Adjudications.pdf (last visited Sept. 13, 2013) (explaining how extreme hardship has been generally described as harm greater than the normal hardships the [qualifying family member] can be expected to experience if the applicant is denied admission).
51 52

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including consideration of such factors as impact of separation; economic and other conditions in the country to which a citizen or LPR spouse would have to accompany their relative; the financial, emotional, cultural, and political conditions in that country; ability to raise children and other quality of life factors in that country; age; length of residence in the U.S.; health; technical skills; employability; and other factors.54 Separation from family can be the most important single hardship factor in considering hardship in the aggregate.55 Extreme hardship to a U.S. citizen or LPR same-sex spouse of an inadmissible alien, now that DOMA no longer applies, may include the same factors previously discussed: anti-gay violence; illegality of the same-sex couples relationship in the aliens country; or marriage laws in the aliens country that do not allow the samesex spouse to accompany his or her alien relative abroad. 1. Anti-Gay Violence or Prejudice in the Country of Relocation as Evidence of Extreme Hardship to Qualifying Relative Same-Sex Spouse

Anti-gay violence or prejudice in the aliens country to which the U.S. citizen or LPR spouse would be subject if the U.S. citizen or LPR spouse accompanied the alien relative to his or her country likely constitutes extreme hardship above and beyond that of family separation or relocation. Most spouses accompanying their alien relative to another country do not face hardship caused by violence based on their sexual orientation. As a result, anti-gay violence a spouse would be subject to if following his or her alien relative to that relatives country is evidence of extreme hardship. Moreover, anti-gay prejudice affecting a U.S. citizen or LPR spouses ability to find work constitutes a substantial negative financial impact of departure from the United States and contributes to the hardship that the same-sex U.S. citizen or LPR spouse would suffer. While mere loss of employment or inability to maintain ones present standard of living does not necessarily constitute extreme hardship, such factors may show extreme hardship in the aggregate.56 Therefore, country conditions indicating that the same-sex U.S. citizen or LPR spouse will not be able to find work due to anti-gay prejudice is evidence of extreme hardship.

See In re Cervantes, 22 I&N Dec. 560, 56566 (B.I.A. 1999), affd, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). 55 Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1998)).
54 56

See In re Pilch, 21 I&N Dec. 627, 63031 (B.I.A. 1996).

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Criminalization of Homosexuality in the Country of Relocation as Evidence of Extreme Hardship to Qualifying Relative Same-Sex Spouse

Legal prohibition of homosexuality in the country of relocation is also evidence of extreme hardship via criminalizing the U.S. citizen or LPR spouse who relocates to that country to join his or her alien spouse. As of 2011, there are eighty-seven nations that criminalize homosexuality.57 Criminalization of homosexuality is a country condition for purposes of the hardship analysis for inadmissibility waiversit is a legal, cultural, and emotional condition of the country to which the U.S. citizen or LPR spouse may relocate upon denial of a waiver.58 Where homosexuality is unlawful, the U.S. citizen or LPR same-sex spouse who relocates to his or her spouses country is by definition a criminal. Requiring a U.S. citizen or LPR to break the law to accompany his or her spouse is, a priori, a hardship beyond that typically associated with a spouses denial of entry to the United Statesmost spouses are not required to risk criminal penalties to join their husband or wife abroad. 3. Laws in the Country of Relocation that Do Not Recognize Same-Sex Marriage as Evidence of Extreme Hardship to Qualifying Relative Same-Sex Spouse

Marriage laws in the aliens country that do not recognize the same-sex marriage between the alien and U.S. citizen or LPR spouse for immigration purposes could halt the qualifying relative spouse from accompanying his or her alien relative to their country. This would bar reunification of the couple abroad, causing hardship to the qualifying relative spouse. Just as in the United States, many countries immigration laws require some family relationship to grant residency status in that country.59 Eleven countries recognize same-sex marriages throughout the entire country and three more offer regional recognition.60 Since only same-sex couples from one of these eleven countries would be eligible to take advantage of marriage-based status in their spouses country, the U.S. citizen or LPR spouses ability to accompany his or her alien relative to their country would be hampered or barred entirely. One of the central purposes of the inadmissibility waiver is to unify families and avoid the hardship of family

See supra Part IV.A.2. Cervantes, 22 I&N at 56566. 59 See OFFICE OF PERSONNEL MANAGEMENT, CITIZENSHIP LAWS OF THE WORLD (2001) (describing criteria for ultimate naturalization following marriage to a citizen of various countries).
57 58 60

See supra notes 4142 and accompanying text.

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separation.61 If one member of a same-sex marriage is denied lawful status in their spouses country based on their marriage (because that country does not recognize same-sex marriage), then the couple may not reasonably expect to reunite in that country. This would constitute evidence of hardship to the U.S. citizen or LPR spouse. Until now, DOMA has barred an alien with a same-sex spouse, who would otherwise constitute a qualifying relative under the INA, from relying on a showing of hardship to his or her spouseincluding hardships directly traceable to anti-gay prejudice in the aliens countryto waive his or her inadmissibility to the United States.

CONCLUSION
The review conducted in this article is not a comprehensive one. Application of DOMA has affected families otherwise eligible for immigration benefits in a variety of ways. Now, as a result of the Supreme Courts landmark decision in United States v. Windsor, immigrant partners in same-sex marriages may seek the full panoply of immigration benefits formerly available only to their heterosexual counterparts.

61

In re Lopez-Monzon, 17 I&N Dec. 280, 281 (Commn 1979).