24 February 2011 ~ 0 Comments

What Should Same-Sex Bi-National Couples Do Since Obama Is No Longer Defending DOMA?

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So the Obama Administration is not going to defend the constitutionality of Section 3 of DOMA in courts. That is the section which limits the definition of marriage as that between a man and a woman.

The lawyers and law students are rejoicing. They can see jobs for themselves less than a mile away with heightened scrutiny for LGBT individuals. Marriage equality advocates are celebrating Independence Day early and breaking out another bottle of human rights champagne. In a parallel universe, Arizona is now trying to ban even straight undocumented immigrants from getting married but more about that later.

Lets get to you. You are in a bi-national same-sex relationship. Your partner either has to travel back and forth to keep legal status in order to stay with you or your partner is undocumented (and hopefully unafraid) or your partner cannot enter the country and you’ve to travel to see her/him. What do you do?

Immigration Equality, an organization that advocates for the rights of LGBT immigrants, has forever opposed the idea of same-sex couples filing I-130 claims and adjudicating their cases in court. (Edit: But I hear that they may be reconsidering and changing their position on this in light of Obama’s decision). They have good reason to believe that federal judges will defer to DHS. For the most part, they are right since you are unlikely to win your claim and your partner may end up in removal proceedings.

But there is a better way to deal with this. Forget listening to advocacy organizations and lawyers. Stop sitting on your laurels. Ideally, I would like to see some 36,000 couples filing I-130 “Petition for Alien Relative” petitions with USCIS. Just imagine the mayhem that would cause. USCIS has to go through each claim. It will take them eons to reject them. You can file appeal upon appeal and backlog them further. You probably don’t even need to take to the streets or the courts.

Start talking to the media about how President Obama is keeping you apart from your partner, while he’s running a re-election campaign. Knock on the doors of your representatives and take them to task.  Under immense pressure, Congressional leaders will have to start holding hearings. Sooner or later, DOMA will be repealed in the courts or by Congress, not that it matters much. Even without that, DHS has to issue a directive or memo allowing your partner to live and work legally in the country (deferred action) and Congress has to take action and pass the Uniting American Families Act.

The system is denying you equal rights so screw with it. Give them hell. Shut them down. Go all out for reverse attrition through enforcement. It’s a whole lot more fun than sitting around doing nothing.

Anyway, that’s how you make change happen. They cannot deport us all. DREAM Act student leaders have known and exploited this for quite a while. It’s about time same-sex bi-national couples grow a pair and do the same.

P.S. I’m not your lawyer. You can’t sue me if things don’t go the way you want them to. This post, and nothing on this site, creates or implies an attorney-client relationship.

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