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Attorney Shelley Grant Discusses Immigration Restrictions for Same-Sex Couples

March 05, 2013

Attorney Shelley Grant of Bagia & Associates discussed the immigration issues faced by same-sex couples at the law school on March 3.

A foreign-national partner in a same-sex marriage cannot obtain the same immigration benefits traditional spouses are afforded, Grant said. For example, a U.S. citizen husband or wife can typically sponsor his or her foreign-national spouse for U.S. citizenship by filing a petition in immigration court. However, since the federal Defense of Marriage Act (DOMA) defines marriage as a partnership between a man and wife, same-sex couples are not afforded the same opportunity, Grant said. Immigration courts are required to adhere to DOMA’s definition of marriage and, thus, will not recognize a citizenship petition brought by a same-sex spouse, Grant explained.

Two cases currently before the U.S. Supreme Court, including Windsor v. United States, a direct challenge to DOMA, may ultimately invalidate DOMA’s definition of marriage, Grant said. If that were to happen, Grant claimed, immigration courts would likely evaluate petitions brought by same-sex couples in the same way as those brought by traditional married couples.

Despite DOMA’s narrow definition of marriage, the legal landscape for same-sex unions in immigration court is not entirely grim, Grant argued. Rather than outright denying petitions brought by same-sex couples, some courts have been simply adjourning cases until the U.S. Supreme Court reaches a decision on DOMA. Similarly, in deportation cases, prosecutors have been given discretion not to pursue cases where a traditionally married spouse would have a defense to deportation due to their marital status but a same-sex spouse would not because of DOMA’s restrictions, Grant concluded.

The presentation was part of the school’s Diversity Awareness Week and was co-hosted by the Drexel Brehons and Drexel OUTLaw.