Hawaii and Delaware same sex marriage law empowers gay marriage for immigration benefits
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Hawaii and Delaware same sex marriage law empowers gay marriage for immigration benefits

January 1, 2012, 6:29 pm
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The battle for gay and lesbian immigration equality may finally end
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January 1, 2012 – New York - At the stoke of midnight, while millions were counting down to the new year, two more states joined the growing number that approved a civil union for gay couples. Hawaii and Delaware joined New Jersey, Illinois and Rhode Island in granting the rights offered by traditional marriages to gay and lesbian couple.

Hawaii’s lawmakers barely approved a civil unions law in 2010, but then-Governor Linda Lingle, a Republican, vetoed the bill on the last possible moment. She said the bill was abandoned because it was too similar to traditonal marriage. In February, of 2011 Governor Neil Abercrombie, a Democrat, signed the bill into law in front of a clearly happy and thankful crowd.

In Delaware the state's first law to acknowledge the unions of gay and lesbian couples took  effect on January 1, 2012 at 10AM. It was only this May that Governor Jack Markell signed the legislation before more that 600 applauding supporters.

The immigration history as it relates to gay and lesbian couple displays a constant  upward hill battle for its supportes. Looking back to March of 2003, the United States Citizenship and Immigration Services (USCIS), wrote  a detailed  authoritive memo instructing DHS officials about  how they should treat a marriage under US immigration laws. One section of that memo discussed the ongoing problems with same-sex marriages.  The memo refers to the Defense Of Marriage Act (DOMA). The DOMA provides a statutory definition of marriage as a legal union between one man and one woman as husband and wife.  The word “spouse,” in  DOMA refers specifically to a person of the opposite sex who is a husband or a wife.  According to the memo to qualify as a marriage for purposes of federal law, including the Immigration and Nationality Act, one partner must be a woman and the other a male in a marriage.  Even though the highest court in a state can legalize same-sex marriage, this marriage would not be valid  to obtain immigration benefits.

Thiere was a major  change in February of 2011, when the Obama administration said that they will no longer defend the constitutionality of a federal law banning acknowledgment of same-sex marriage.  Attorney General Eric Holder  noted that the congressional debate for passage of the Defense of Marriage Act "contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the (Constitution's) Equal Protection Clause is designed to guard against."

An enormous amount of media  attention was paid in 2011 to the legal obstacles same-sex binational couples encounter when they attempt to sponsor their foreign-born partner or spouse.

In June, Henry Velandia, a Venezuela citizen  legally married to an American citizen faced deportation.  The Newark Immigration Court, where the trial was held,  granted a motion to administratively close the proceedings based upon President Obama's directions to Attorney General Eric Holder proclaiming that Section 3 of DOMA is unconstitutional. The judge said that he required time for the attorney general and the courts to determine whether, under certain  circumstances, a gay partner may be eligible for legal residency before a proper decision could be made.

Following the hearing Mr. Velandia commented, “I can start breathing now after so many months of fighting…I was holding my breath for fear of any moment being sent away.”

He did however; point out that although the decision was “a big step forward,” it failed to address the fundamental issue of whether same-sex marriages should be accepted by the federal government.

As Mr. Velandia and his husband happily departed from the court you could hear him say, “The fight isn’t over,”

Author: Moises Apsan
Attorney with over 35 years of experience. Past president Federal Bar Association NJ Chapter (1997-2002). Offices in New York, NY, Newark, NJ. Tel: 888-460-1800 http://www.apsanlaw.com and www.drmoises.com
Apsan Law Offices
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Hawaii and Delaware same sex marriage law empowers gay marriage for immigration benefits
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