As an immigration attorney, I often meet same-sex, bi-national couples that are unable to remain together due to the Defense of Marriage Act. While a U.S. citizen can sponsor his opposite-sex spouse for lawful permanent residency in the United States, thanks to DOMA, same-sex couples—even if they are legally married under state law—do not have this option. In the United States today, there are approximately 36,000 such couples, many with children, who face separation.
Recently, a federal appeals court in Boston found that a provision of DOMA related to federal tax benefits for married same-sex couples was unconstitutional. This ruling might bode well for same-sex, bi-national couples, but the court held that its ruling would not be enforced until the Supreme Court decides the issue. Given the current makeup of the high court, it seems unlikely that the law will be struck down anytime soon.
In the meantime, there is something President Obama can do now to help such couples: Grant asylum to the foreign partner. Asylum is an immigration benefit that allows an alien to remain permanently in the United States if he or she demonstrates a well-founded fear of persecution in their home country on account of race, religion, nationality, particular social group or political opinion.
Under current law, gay people are eligible for asylum if they demonstrate that they will be persecuted in their country. The problem with obtaining asylum for many same-sex couples is that they come from countries where they do not face “persecution,” as that term has been defined by case law. However, since the Department of Justice determines what counts as “persecution,” the Obama administration has the power to create a definition of persecution that includes all same-sex spouses of U.S. citizens. If social conservatives can define “marriage” as a union between a man and a woman, why can’t progressives define “persecution” as the forced separation of same-sex couples due to immigration restrictions? If the foreign-born partner can demonstrate this type of “persecution,” he should be granted asylum.
Although this definition of persecution stretches the normal meaning of the term, there is precedent for such a move. For example, the Cuban Adjustment Act essentially declares that anyone who escapes from Cuba is a refugee, eligible to remain permanently in the U.S. Also, people who were victims of coercive family planning (like forced abortions) in China are eligible for asylum. For the most part, people from these two groups would not meet the requirements for asylum, but because Congress has created special categories for them, they are eligible to remain in the United States.
While the rules for China and Cuba are laws passed by Congress, the Executive Branch has acted unilaterally to expand the definition of who qualifies for asylum. For example, in 1996, the Justice Department held that victims of female genital mutilation were eligible for asylum. And in 2004, the Department of Homeland Security concluded that domestic violence could form the basis for an asylum claim.
President Obama has already concluded that the relevant portion of DOMA is unconstitutional and his administration has refused to defend the law in court. So why not do something for the thousands of same-sex couples faced with forced separation? The Department of Justice could define “persecution” as the forced separation of married same-sex couples, and it could grant asylum to the foreign partners. If DOMA is repealed or overturned, the government could re-visit this definition of persecution. But as long as this mean-spirited law remains on the books, the Obama administration should do everything in its power to mitigate the harm. We should grant asylum to gay and lesbian spouses of U.S. citizens.
Jason A. Dzubow is an immigration attorney with Dzubow, Sarapu & Pilcher in Washington. Reach him via DzubowLaw.com.