The
proverbial closet that many LGBT people have found themselves in at some point
in their lives can be an even greater claustrophobic experience for those who
also find themselves hiding in the closet of being an undocumented person in
the United States. While the passage of
civil unions in Colorado can bring some legal dignity to those same-sex couples
in long-term relationships, those couples seeking benefits at the federal
level, such as in immigration, find themselves with a continuing journey for
legal recognition.
The Colorado Civil Union Act was recently passed by the Colorado legislature and signed into law by Governor Hickenlooper. The Act, largely codified at § 14-15-101 et seq., goes into effect on May 1, 2013. For the most part, the Colorado Civil Union Act gives nearly all of the same protections as a heterosexual marriage under Colorado law, while going to great pains to distinguish a civil union from a marriage. Among other things, the legislature was greatly concerned with running afoul of the Colorado Constitution’s definition of a marriage being between one man and one woman.[1]
Regardless of what title Colorado or any other state in the Union places on partnerships in a civil union, the Immigration and Nationality Act (“INA”) is still subject to the highly controversial Section 3 the Defense of Marriage Act (“DOMA”)[2], which defines marriage as a legal union only between one man and one woman for federal purposes. That said, regardless of whether in Colorado we call it a civil union or a marriage, or regardless of which state may have legalized same-sex marriage, for immigration and other federal purposes, same-sex unions and marriages are not recognized. And, because they are not recognized, those benefits otherwise attainable to their heterosexual counterparts are not available to same-sex couples in a marriage or civil union.
The bad news behind us now, there may be good news on the horizon. The highly anticipated Supreme Court ruling on the constitutionality of DOMA is expected in June. Should the Court overturn the law, those couples in a same-sex marriage would be able to seek any immigration benefit afforded to spouses under the INA. What will remain an open question, however, is how partners in lawful civil unions will be treated for federal purposes. The United States Attorney General, Eric Holder, has asked the Board of Immigration Appeals to determine, among other things, whether a partner in a civil union would be considered a “spouse” under state law, as well as under the INA, but that case has since been administratively closed by the Board.[3] While theoretically this could be a simple legislative fix by Congress, it is sure to be a highly contentious issue.
Should the Court determine that Section 3 of DOMA is not unconstitutional, nothing will change in the current statutory framework of the INA. However, all is not lost. The Department of Homeland Security, with the blessing of the White House, has developed in recent months broader policies with regard to the treatment of same-sex bi-national couples, particularly in the recognition of relationships for discretionary relief from removal. Officers and attorneys for DHS are to look to whether a person has been in a long-term relationship with a same-sex partner, and look for evidence of the relationship comparable to that of opposite-sex couples. Oftentimes, foreign nationals are spared from deportation by being able to demonstrate these ties. However, this policy in non-binding and non-enforceable.
Most practitioners agree that, even though the federal government does not currently recognize same-sex marriages, and potentially will not in the near future, it is important for bi-national couples to document their relationships in the same means that opposite sex couples do. Couples should be encouraged to comingle assets, use joint bank accounts, designate each other as beneficiaries on insurance and cash accounts, and, yes, enter into civil recognition of their relationships such as marriage, civil unions, or domestic partnerships. While the decision to marry or “partner up” is a deeply intimate decision that should be made for the benefits of the civil union or marriage and not solely for any immigration benefit, couples are encouraged to enter into civil unions or marriages as a means of demonstrating their life-long commitment to each other. Should ICE come knocking at the door, that certificate will be a very important document to seeking discretionary relief from deportation.
It is true that many people live in more than one closet. Many members of the LGBT community also find themselves in hiding due to their lack of immigration status. The best plan is to sit with a trusted immigration practitioner and develop a strategy for what to do if the worst should happen.
[1]
Colo. Const. Art. II, Sec. 31
[2]
1 U.S.C. § 7
[3]
Matter of Dorman, 25 I&N Dec. 485
(A.G. 2011)
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