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Author: Kerry Abrams

12

Marriage Equality, Immigration, and … Fraud?

The demise of DOMA may mean that same-sex married couples are now entitled to the same marriage-based immigration benefits as anyone else. But marriage equality also entails equal burdens. As I argued in Immigration Law and the Regulation of Marriage, 91 Minn. L. Rev. 1625 (2007), immigration law holds marriages involving immigrants to a higher standard than the law ordinarily demands, and this will now be true for same-sex couples.

Under state family law, married people are not required to live together. They don’t have to open joint bank accounts, jointly own property, take extensive vacation photos, document which guests attended their weddings, or know the color of their spouse’s toothbrush. They don’t even have to have sex. Of course, married couples might do these things, and they often do. But the law doesn’t intrude into what are considered private family decisions, unless the couple divorces, and then it intervenes to protect the ex-spouses from each other.

But when an immigrant seeks a benefit based on marriage, immigration officials look to a variety of factors¬—including the ones listed above—to determine whether the marriage is “genuine.”

I argued in Married Fraud, 100 Cal. L. Rev. 1 (2012) that this close scrutiny isn’t really surprising, given the nature of the benefit at stake. In that article, I canvassed the many instances in which the law uses marriage as a threshold requirement for a public benefit. I showed that some types of public benefits result in more intrusive government interference than others: those that are substantial and those that endure even if the recipient gets divorced.

Health insurance, for example, is a nice benefit, but it is largely prospective: you don’t know if and when you’ll need it. It can also be obtained using means other than marriage. Its costs have been shunted onto private employers (and likely passed through to employees). Some people marry for health insurance, true, but usually to someone with whom they are already in a relationship. That’s because they need to stay married to use it. Immigration benefits, in contrast, have an immediate utility that is often unavailable through any other means. And you don’t have to stay married to keep the benefit. As a result, immigration benefits are highly susceptible to abuse, and the government has responded by closely scrutinizing marriages when they are tied to immigration status. Sometimes, this close scrutiny has the unfortunate effect of requiring a more traditional form of marriage from citizen-immigrant couples – joint bank accounts, shared domicile, traditional gender roles, etc.

So what does this all mean for same-sex couples? Two consequences come to mind. The first is that although same-sex couples will now be able to seek immigration status based on marriage, they will also be subjected to the same close scrutiny as other couples. To the extent that same-sex couples structure their lives similarly to straight couples, this won’t be a big deal (or at least it won’t be any worse than it already is for straight couples). But there’s some evidence that same-sex couples are different, on average, for example, that they are more egalitarian about child-care responsibilities. If that’s true, will the pressure to conform to what immigration officials deem to be a “typical” marriage be even more onerous for same-sex couples than for opposite-sex couples?

Second, one frequently-voiced reason for opposing benefits for same-sex couples is that doing so invites fraud. On this theory, two heterosexual friends could marry just to seek immigration benefits. On its face, this argument seems kind of silly. A heterosexual person can already commit fraud under current law—just not with a person of the same sex. And a gay person could marry an opposite-sex friend, so it’s not clear why marriage equality suddenly opens up the door to massive fraud. The underlying fear may have more to do with uneasiness on the part of marriage equality opponents about how to identify a “real” LGBT relationship.

This uneasiness could lead to a different problem. If immigration officials feel uncomfortable in judging the bona fides of a same-sex marriage, they may begin to pressure applicants to “perform gayness” in a more overt way. This appears to be what has happened in the asylum context. Individuals who have sought asylum because they were persecuted for their sexual orientation have reported feeling that they had to demonstrate they were “typically” gay in order to convince government officials that they deserved asylum. One man interviewed by the New York Times, for example, reported wearing pink eye shadow and a bright pink V-neck shirt to his interview and engaging in “intermittent outbursts of tears.”

Opening immigration benefits to same-sex spouses is the right thing to do. But it’s something that I hope the government does with care. There is a danger that same-sex couples will be required to force themselves into an ill-fitting traditional marriage norm, and a simultaneous danger that they will be encouraged to embody cultural stereotypes of gayness.

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Marriage and Immigration — Which State’s Law Applies?

Last week, in United States v. Windsor, the Supreme Court struck down the Defense of Marriage Act. As I mentioned in my previous post, the Department of Homeland Security appears to be interpreting the Court’s decision to permit the recognition of same-sex marriages for immigration purposes. But which state’s (or country’s) law should determine whether a couple is married? Should it be the state where they celebrated their wedding, or the state where they live?

On the day after the Supreme Court’s ruling, President Obama opted for the “celebration rule.” “If you’ve been married in Massachusetts and move somewhere else, you’re still married,” he explained. “Under federal law, you should be able to obtain the benefits of any lawfully married couple. But again I’m speaking as a president, not a lawyer.”

As “lawyer Obama” might suspect, the celebration rule is a bit more complicated than it looks at first glance. Under the celebration rule, a marriage is valid where celebrated if it does not violate the “strong public policy” of the state where the couple is domiciled—where they reside and intend to remain. Some state courts have interpreted “strong public policy” to mean a statute or constitutional amendment banning the type of marriage in question. Virginia, for example, does not recognize same-sex marriages entered into elsewhere based on an amendment to the Virginia Constitution banning same-sex marriage. Others have adopted a more generous approach, finding a “strong public policy” against the type of marriage only if the state has a statute making it a crime to evade the state’s marriage law by leaving the state to marry and returning there to live. Edith Windsor, in fact, was able to claim to be “married” in New York precisely because of New York’s generous version of the celebration rule; she had been married in Canada in 2007 before same-sex marriage was available in New York, but because New York did not have a criminal evasion statute the marriage was recognized under New York law. Her marriage would not have been recognized in Virginia.

Immigration courts have, by and large, adopted the version of the celebration rule that looks for an evasion statute as evidence of strong public policy. This means that a marriage validly entered into will be good for immigration purposes if the couple plans to live in most states in the U.S. (many states repealed their evasion statutes after just such a statute targeting interracial marriages was struck down in Loving v. Virginia in 1967). But some states still have them. Wisconsin’s, for example, imposes a criminal penalty of up to ninth months imprisonment or a $10,000 fine for going outside the state to enter into a marriage prohibited under Wisconsin law. Even the very generous version of the celebration rule thus far adopted by the BIA will still not give immigration marriage benefits to couples who validly marry and then return to a state with one of these statutes; it will take a “President Obama”-style celebration rule to do that.

Which brings me to one final wrinkle … the concept of domicile itself. As I explained in a recent article (Citizen Spouse, 101 Cal. L. Rev. 407), not all couples have a “marital domicile.” Many couples now live apart, or live in more than one place, sharing multiple residences but not a state of domicile. In an age of increased mobility and dual-career couples, the old-fashioned notion of “marital domicile” may cause more confusion than it is worth. We may also need to rethink the idea of permanency that domicile is based on. A simple “President Obama” celebration rule that completely ignores the law of the state in which a couple resides may show a lack of respect for state law, but it may be the most pragmatic solution in a world where people move frequently. Marital status (like immigration status) is most useful and stable when it is portable.

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Marriage Equality and Immigration

Thank you, Angel, for the kind introduction and the opportunity to blog this month.

The Supreme Court’s decision last week in United States v. Windsor had the immediate effect of declaring unconstitutional the IRS’s $363,000 estate tax bill to Edith Windsor. But the law struck down in Windsor—the Defense of Marriage Act—did not just govern the definition of “marriage” in estate tax cases. DOMA defined marriage for “any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.” Now that DOMA has been declared unconstitutional, it no longer governs federal income tax, Social Security, veterans benefits, or any of the over 1,000 benefits, rights, and privileges that are contingent on marital status in the U.S. Code.

What does this mean for an immigrant seeking lawful status based on a marriage to a person who happens to be of the same sex? The Obama Administration’s answer so far has been resoundingly clear: these immigrants are now eligible. Department of Homeland Security Secretary Janet Napolitano issued a statement just hours after the Supreme Court’s ruling promising to “implement [the] decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.” And, according to the New York Times, less than one hour after the Supreme Court announced its ruling in Windsor, an intern carried the court’s ruling “still warm from the printer” to an immigration judge, who then halted the deportation of the Colombian husband of a U.S. citizen. On Friday, the U.S. Citizenship and Immigrant Services issued its first visa approval based on a same-sex marriage between a Bulgarian immigrant and a U.S. citizen living in Florida.

This broad interpretation certainly seems like the most just reading of Windsor as applied to immigration cases. For years, same-sex couples have been denied the family reunification rights granted to opposite-sex couples. Immigration law is not just a question of filling out the appropriate paperwork. In order to obtain permanent resident status (what is commonly known as a “green card”), an immigrant needs to fit into a particular category, usually based on a family relationship to a U.S. resident or a job offer from a U.S. company. Denying same-sex couples the same rights as opposite-sex couples tore families apart and encouraged same-sex couples live in undocumented status. Another common scenario was marriage fraud; the immigrant spouse would marry a U.S. citizen friend of the opposite sex in order to gain lawful status, divorce the friend, and then marry (or live with) his or her actual partner.

The Obama Administration’s response is heartening, but was not inevitable. The demise of DOMA did not automatically mean the end of this policy. In fact, the governing law pre-DOMA denied immigration benefits to same-sex couples. In the leading case, from 1982, the Ninth Circuit set forth a two-part test for determining whether a marriage would be recognized for immigration purposes. First, is the marriage valid under state law? Second, does the marriage qualify under the Immigration and Nationality Act? In that case, Adams v. Howerton, the answer to first question was easy. Richard Adams and his spouse, Tony Sullivan, had managed to obtain a marriage license from the county clerk in Boulder, Colorado, but there was no evidence that Colorado would actually recognize a same-sex marriage (remember, this was 1982!). But the court also addressed the second question, and determined that the Immigration and Nationality Act—which included no language one way or the other on whether “marriage” included same-sex couples—could not be read to include same-sex couples.

There are several reasons to think that Adams v. Howerton is no longer good law. First of all, the decision was predicated in part on the fact that “homosexuality” made an immigrant inadmissible to the United States. “We think it is unlikely,” the court explained, “that Congress intended to give homosexual spouses preferential admission treatment … when … it mandated their exclusion.” Congress repealed the law excluding homosexuals in 1990, so a court today would no longer need to read the preference for married couples in light of it.

Second, Adams was decided before same-sex marriage was widely available. In 1982, the county clerk in Boulder was handing out marriage licenses and Adams and Sullivan jumped at the opportunity to marry. But no state—and indeed, no nation—had yet embraced marriage equality. The Netherlands became the first country to grant same-sex marriages in 2001; by the time Windsor came down last week, same-sex marriage was also available in Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, Brazil, and France, as well as in parts of Mexico. It is also now available in Massachusetts, Vermont, New Hampshire, Maine, Connecticut, Rhode Island, Maryland, Iowa, New York, and Washington, D.C. Following the Supreme Court’s dismissal of Perry, hundreds of same-sex couples married last weekend in California. Same-sex marriage became available in Delaware today. Minnesota’s legislature recently passed a law that will allow same-sex marriages to begin there on August 1. It would be very difficult for a court today to hold, as the Adams court did, that “the term ‘marriage’ ordinarily contemplates a relationship between a man and a woman.”

Perhaps the most important reason that Adams is no longer good law, however, is the Obama administration’s response to Windsor. In Adams, the Ninth Circuit emphasized that it was obligated to give “substantial deference” to agency interpretation of a statute. The INS (now DHS) had consistently interpreted the term “spouse” to “exclude a person entering a homosexual marriage.” Now that DHS has changed its approach in light of Windsor, the widespread availability of same-sex marriage, and the lightning-fast change in public opinion on this subject, agency interpretation cuts in the opposite direction.

Expanding immigration benefits to same-sex couples will create a host of new legal questions. Which state’s rule should DHS defer to when deciding whether a couple counts as “married”? How will DHS investigate marriage fraud? How will derivative citizenship claims be adjudicated? I’ll be exploring some of these issues in upcoming posts.