Lesbian couple seeking immigration rights sue to overturn DOMA News
Lesbian couple seeking immigration rights sue to overturn DOMA
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[JURIST] A lesbian couple filed suit in the US District Court for the Central District of California [official website] on Thursday seeking to achieve for gay and lesbian couples the same immigration rights afforded to heterosexual couples. Philippine immigrant Jane DeLeon lawfully married US citizen Irma Rodriguez, 49, in California in 2008, and they have now lived together for over 20 years, raising DeLeon’s now 26-year-old son. DeLeon filed the federal class action lawsuit [complaint, PDF] after she was denied an immigration waiver required for her to obtain a green card, for which she is otherwise eligible through her employment as an accounting clerk. Under the Immigration and Nationality Act (INA) [materials] such waivers are granted when a departure from the country would cause extreme hardship to a US citizen spouse. While Rodriquez suffers from health problems that could make moving to the Philippines devastating to her health, DeLeon’s waiver application was denied because the Defense of Marriage Act (DOMA) [text, PDF; JURIST news archive] precludes recognition of same-sex marriages for purposes of federal law enforcement, including the INA. The lawsuit seeks to overturn DOMA, specifically Section 3, which defines marriage for all federal purposes as “only a legal union between one man and one woman”:

Plaintiffs seek a declaration that DOMA § 3 … violates the [US] Constitution, as applied to plaintiffs and those similarly situated, by refusing to recognize their lawful marriages for purposes of conferring family-based immigration waivers and benefits. As a direct and proximate result of the violations of the Constitution alleged herein, plaintiffs have been denied, and will continue to be denied, legal protections and benefits under the [INA] that would be available to them were they spouses of different sexes.

The complaint also seeks an injunction against DOMA’s enforcement while the matter is litigated. Upon receiving her waiver rejection DeLeon was further informed that she is no longer authorized for employment in the US, she is now accruing “unlawful presence” in this country, that with an accrual of six months of unlawful presence she will be barred from the US for three years and that if she remains in the US for more than one year she will be barred for 10 years.

This week 132 members of the US House of Representatives [official website] filed an amicus brief [JURIST report] arguing for DOMA to be overturned as unconstitutional. The brief was filed in the appeal of Karen Golinski v. Office of Personnel Management, the landmark case in which the US District Court for the Northern District of California [official website] ruled that DOMA is unconstitutional [JURIST report]. Last month 10 US senators filed their own amicus brief in the case, arguing in the opposite [JURIST report] that the federal government had a legitimate interest in creating a uniform federal definition of marriage to “[avoid] massive legal uncertainty.” That filing came the week after the House Bipartisan Legal Advisory Group (BLAG) submitted its brief defending DOMA [JURIST report], arguing that laws relating to sexual orientation should be evaluated with a rational basis [Cornell LII backgrounder] test and that the government’s denial of federal benefits to lawfully married same-sex couples is a rational means to preserving a single federal definition of marriage and preserving federal funds. The BLAG DOMA defense group of attorneys [JURIST report] was established by House Speaker John Boehner (R-OH) [official website] on a 3-2 BLAG vote in March of last year after the DOJ announced that it would no longer defend the constitutionality of Section 3 on order from President Obama, after he announced he would continue to fight for the repeal of DOMA [JURIST report].