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Binational Couples Sue Government Over DOMA Restrictions on Green Cards for Same-Sex Spouses

At the intersection of LGBT rights and immigrant rights, a coalition of five legally married binational couples have filed a lawsuit against the government over the inability to get green cards for their non-citizen spouses because of the federal Defense of Marriage Act.

The right of American citizens to have their chosen spouse live with them in the U.S. is more or less automatically granted when the spouse is of the opposite sex: once evidence is submitted attesting to the authenticity of the marriage, the Immigration and Naturalization Service issues a visa and then a Green Card to the foreign national spouse. But the Defense of Marriage Act, the 1996 statute enacted by a huge Congressional majority in both parties and signed into law by President Clinton, expressly bars the granting by the Federal government of any spousal benefits, including immigration rights, to same-sex couples.

That blatantly discriminatory law has produced a serious injustice and substantial hardship: thousands of U.S. citizens are barred from living in their own country with their same-sex spouse. The “luckiest” among them are able to move to their spouse’s country, but that’s a choice available to only a small percentage: for that to work, the foreign spouse’s nation must grant immigration rights to same-sex couples (only a minority of countries do) and the American partner must be able to find work while living outside the U.S. […] But the vast majority of same-sex couples in this situation do not have even that limited option: instead, they are faced with the horrifying choice of (a) having the foreign partner live illegally in the U.S. (which means they face the constant threat of deportation, cannot legally work or study, and cannot ever leave the country to visit their family back home), or, worse, (b) living thousands of miles apart — continents away — from the person with whom they want to share their life.

Glenn Greenwald is not one of the five couples who sued over this, but he is a textbook example. Greenwald lives in Brazil with his same-sex partner because his spouse cannot obtain immigration rights to live in the US.

Immigration Equality filed the lawsuit, yet another attempt to throw out DOMA, which has been ruled unconstitutional in lower courts. The Administration has stopped defending DOMA in court, but has not stopped enforcement, at least on this narrow question of binational same-sex couples. There’s more from Julia Preston.

This comes as the Obama Administration has made several concessions to improve their standing with the immigrant rights community, particularly the Latino community. They have stopped many deportation cases pending a full review, and made it easier for spouses seeking a visa to stay in the US to avoid having to travel back to their home countries, under “extreme hardship” rules. However, the deportations and raids on undocumented immigrants continue; DHS and ICE just wrapped up a 6-day sweep that netted 3,168 of them, all of whom ICE claims are criminals (though that includes illegal re-entrants, rather than solely those convicted of violent activities). And as this case shows, there are a host of other immigration hurdles that the federal government puts in the way of people, even people who love one another and want to spend the rest of their lives together.

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David Dayen

David Dayen