Repeal of DOMA Creates Unprecedented Immigration Opportunities for LGBT couples.
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Repeal of DOMA Creates Unprecedented Immigration Opportunities for LGBT couples.

November 24, 2013, 10:46 pm
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Attaining equality for the lesbian, gay, bisexual and transgender (LGBT) community has been a pressing civil rights issue created by our malfunctioning immigration system. The problem is heightened by the thousands of undocumented LGBT people living at the cross fire of the civil rights battle making them about of the most vulnerable individuals in our country. A recent study by the Williams Institute, acknowledged that there are close to 1 million LGBT adult immigrants, out of these, some two-thirds are documented and one-third are undocumented. Comprehensive immigration reform is an acute issue for the LGBT community.

The Human Rights Campaign (HRC) has long been in the forefront of legislation to protect LGBT persons affected by the current immigration system.

HRC has highlighted  areas that will go a long way in providing LGBT couple equality with traditional couple by suggesting the following principles:

Keep LGBT Families Together, and  Improve the U.S. Asylum System for LGBT Applicants.

On June, 6 2013 DOMA, The Defense of Marriage Act, the law barring the federal government from recognizing same-sex marriages legalized by the states, was ruled unconstitutional, by the Supreme Court with a 5-4 vote.

In this article we will revisit parts of the HRC roadmap that aids in assuring LGBT families a similar footing in society as traditional marriages and understand the effect  that the repeal of DOMA has had on the LGBT community.

HRC Required: 

1. Allow U.S. citizens and permanent residents to sponsor their same-sex spouses or partners for family-based immigration.

Problem: Prior to the fall of DOMA U.S. citizens or legal permanent residents were unable to sponsor their spouse or immediate family member for immigration purposes. A projected 32,300 same-sex, bi-national couples live in the U.S., raising over 11,000 children.

Now with the current law, an LGBT couple can marry in those states that permit such marriages and then can go to any state and apply under federal immigration laws for legal residency of their spouse.

2. Stop removal of the same-sex spouse or partner of a U.S. citizen or permanent resident when it can be established that removal would cause extreme hardship to the U.S. citizen or legal permanent resident, thereby allowing for the application of "Cancellation of Removal" as a defense.

Problem: Prior to Doma’s demise Bi-national couples could not apply for Cancellation of Removal and elude separation by showing that a U.S. citizen or permanent resident will suffer “exceptional and extremely unusual hardship” if his or her spouse is deported. But same-sex couples were not considered qualifying relatives under the statute. However, now, the playing ground has been leveled, both traditional marriages and LGBT marriages has the right to file for Cancellation of Removal, and if successful will obtain lawful permanent residency for their spouse.

3. Allow Step relatives to have the same immigration rights as non LGBT individuals.

Problem: More than 4 million people are currently waiting for a family visa. Yet in the past stepchildren of same sex marriages where the petitioner is the stepparent could not file for the child as an immediate relative, nor as a family preference member. However under the new law, all children of LGBT families will be able to apply for lawful residency in the U.S.

4. Allow same-sex spouses or partners of individuals who are refugees or granted asylee status to receive derivative refugee or asylee status.

Problem: Approved Refugees or asylees in the U.S. are able to avoid splitting-up from the person they love by seeking derivative status for their spouse. But same-sex spouses or partners of refugees or asylees were not considered “spouses” for purposes of derivative asylum. Therefore, LGBT individuals were frequently required to endure long separation from the individual they love in order to escape persecution.

The repeal of Doma has reversed this ruling ands now LGBT Asylum applicants may include their spouses for the purpose of derivative asylum.

The demise of DOMA has ushered in a new age of enlightenment, liberty and tolerance.  Let's hope that Congress in it's current confused state can see through the politics, the importance of approving a comprehensive immigration reform, to solve the life dilemma of all of the 11 million undocumented immigrants, whose U.S.  families have been suffering with, for a very long time.

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 and
Apsan Law Offices
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Repeal of DOMA Creates Unprecedented Immigration Opportunities for LGBT couples.
Repeal of DOMA Creates Unprecedented Immigration Opportunities for LGBT couples.
Source: Moises Apsan
Sunday 24 November 2013

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