When being married to a citizen is not enough
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When being married to a citizen is not enough

December 23, 2011, 1:02 pm
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Married couple between Immigration and a hard place
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 Frances Herbert and Takato Ueda are married. Herbert is a United States citizen. The couple met when they were both students more than thirty years ago. At the time Takato was here on a student’s visa.  She returned to her native Japan after graduation, but years later reconnected with Herbert and the two were married last April. They filed for permanent residence for Takato attaching their marriage certificate and Herbert’s birth certificate to  prove US citizenship. Easy case, Right. Wrong.

Immigration attorneys will tell you that the quickest  way to permanent residence is marriage to a US citizen because that puts you in  the immediate relative category, which means there’s  no waiting for your green card. The trouble is in Vermont, where this couple is from, same sex couples could legally marry. And Takato and Herbert, both women, were married under Vermont Law.

The problem is, other states don’t have to recognize Vermont same sex marriage. And there is something in federal law called, Defense of Marriage Act, (DOMA) which says that marriage is only recognized if it is between a man and a woman. So no matter what Vermont does, it has no say in the matter because immigration is a federal issue. Vermont cannot issue a green card.

Now this lesbian couple find themselves in a conundrum, legally married in their home state, they nonetheless face deportation because the foreign born spouse has no papers. The couple is appealing the U.S. Citizenship and Immigration Service's decision to deny a spousal green card. But questions about their marriage loom and the threat of deportation hangs, like the sword of Damocles over their heads. The denial from Immigration simply says:

“The DOMA applies as a matter of federal law whether or not your marriage is recognized under state law," the document reads. "Your spouse is not a person of the opposite sex. Therefore, under the DOMA, your petition must be denied."

  There is Hope

U.S. Attorney General Eric Holder announced in February that the Obama administration believes DOMA, passed by a Republican-led Congress in 1996, is unconstitutional.  It has stopped defending the law in court. The trouble is DOMA has not been repealed and, until it is people like Takato are stuck in limbo. The decision in Takato’s case is final unless an appeal is filed within 30 days, otherwise that's it. Case closed

But one newspaper has reported that a letter-writing campaign helped gather support from U.S. Sens. Patrick Leahy,  and Bernie Sanders" both of Vermont. They think  Congress must change the law to make it clear that same sex couples should be treated fairly under immigration law. In the meantime, Frances and Takato remain together in Vermont, biting their nails and living on tenterhooks.

Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
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