In Matter of Dorman, 25 I. & N. Dec. 485 (A.G. May 5, 2011), Attorney General Eric H. Holder, Jr. said:
Pursuant to my authority set forth in 8 C.F.R. § 1003.1(h)(1)(i), I order that the decision of the Board of Immigration Appeals (“Board”) in this case applying Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, be vacated, and that this matter be referred to me for review.
In the exercise of my review authority under that regulation, and upon consideration of the record in this case, I direct that the order of the Board be vacated and that this matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act; 3) what, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief; and 4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.
The DOMA provides as follows:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
THE HOMOSEXUAL EXCLUSION
Pre-1990 Act. Until 1991, gay and lesbian aliens were excludable on medical grounds, first as “persons of constitutional psychopathic inferiority” and then as persons afflicted with a “psychopathic personality” or “mental defect.” These characterizations reflected the earlier, dominant medical view of homosexuality as a mental illness. Following a federal appellate ruling that “psychopathic personality” was unconstitutionally vague as applied to homosexuals, Congress added the term “sexual deviation” in 1965, and reaffirmed the homosexual exclusion to “[resolve] any doubt on this point.” In 1967, the U.S. Supreme Court rejected a vagueness challenge to the statute, finding “beyond a shadow of a doubt” that Congress intended the phrase “psychopathic personality” to include homosexuals. Meanwhile, medical opinion evolved to adopt the now widespread view that homosexuality was not a psychiatric disorder. Accordingly, in 1979, the Public Health Service (PHS) discontinued its practice of certifying homosexuals as psychopathic personalities, which the INS had used to trigger exclusion. [In response, the INS adopted “Guidelines and Procedures for the Inspection of Aliens Who Are Suspected of Being Homosexual.” A forerunner of the U.S. military’s “don’t ask, don’t tell” policy, the Guidelines stated that only a voluntary admission of homosexuality would trigger the INS’s obligation to exclude homosexual aliens. In 1983, the U.S. Court of Appeals for the Ninth Circuit dealt a blow to the INS policy in the decision in Hill v. INS, 714 F.2d 1470 (9th Cir. 1983). That decision held that the INS may not exclude a self-declared homosexual on the basis of a medical ground of exclusion without certification by a PHS officer, basing its finding on Congressional intent. Congress intended to require a medical examination and certification of all aliens excluded on medical grounds, the court noted. Therefore, the INS may not exclude self-declared homosexuals without medical certification of psychopathic personality, sexual deviation, or mental defect. The significance of this holding was that it reaffirmed the principle that exclusion based on medical grounds requires a medical certification; because the medical community no longer considered homosexuality to be a psychiatric disorder, a policy of excluding gays and lesbians on this basis was rendered invalid. The view of the court in Hill, however, was not universally held. Within weeks, the U.S. Court of Appeals for the Fifth Circuit reached the opposite conclusion in Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983), holding that a medical certificate was not indispensable to exclude a professed homosexual, given the unmistakable intent of Congress to exclude gays. An informed applicant’s admission that he or she fell within the excludable class of homosexuals was sufficient evidence on which to base an exclusion decision, the court held, notwithstanding the absence of a medical certification. “If only certification of homosexuality by a medical officer could warrant exclusion of homosexuals,” the court held, “then the Surgeon General would have effectively checkmated Congressional policy.” These opposing views kept matters in a somewhat uncertain state until Congress stepped in. The Immigration Act of 1990 (1990 Act) finally resolved the conflict. The 1990 Act: Repeal of the homosexual exclusion. The 1990 Act repealed the homosexual exclusion by eliminating the provision excluding persons “afflicted with a psychopathic personality, sexual deviation, or mental defect.” The repeal brought the medical grounds of exclusion in step with accepted psychiatric opinion and also was aimed at the protection of personal privacy. An attorney representing a gay foreign national, however, still must be familiar with the issues related to inadmissibility based on “crimes of moral turpitude” or the denial of benefits based on a lack of “good moral character,” discussed below. While rarely enforced, these grounds can be potential obstacles to immigration, as they may with any alien wishing to immigrate to the U.S.
CONTINUING RISKS: MORAL TURPITUDE AND GOOD MORAL CHARACTER
The INA provides for the inadmissibility of an alien who is convicted of a crime of moral turpitude or who admits to acts constituting such a crime. Aliens who were inadmissible at the time of entry are also subject to removal. Moreover, aliens who are convicted of or who admit to crimes of moral turpitude within five years preceding application are barred from showing the good moral character required for naturalization. Such criminal conduct also can preclude other immigration benefits, such as cancellation of removal. Before the 1990 Act, courts interpreted the moral turpitude exclusion and the good moral character requirement in the “harsh light” of the categorical exclusion of gays. As noted above, while these grounds are rarely enforced, they still can be triggered by some homosexual conduct, which, like certain heterosexual activity, is deemed to have “adverse public effects.” Private sexual activity does not bar good moral character. Historically, a showing of good moral character was precluded by a federal or state criminal conviction. Since the 1950s, most courts have abandoned this standard and have defined good moral character by reference to the “common conscience” of the community. In 1949, Judge Learned Hand applied this standard to hold that neither sexual activity between unmarried heterosexuals nor extramarital heterosexual relationships necessarily barred a finding of good moral character, provided the conduct was private. The INS, likewise, has taken the view that sexual activity between unmarried persons, even if they are of the same sex, does not, by itself, bar a finding of good moral character. In the 1970s, courts extended this analysis to hold that private, consensual homosexual behavior that does not involve any publicly offensive activities, such as solicitation or public display, does not preclude a finding of good moral character for naturalization purposes. Effect of state criminal violations. The decision in Nemetz v. INS, 647 F.2d 432 (4th Cir. 1981) further extended the INA’s acceptance of gay aliens. Citing the constitutional requirement of a uniform rule of naturalization, the Nemetz decision held that whether a person is of good moral character for naturalization is a question of federal law whenever variations in state laws can lead to inconsistent results. Under this principle, private homosexual conduct that violates state criminal law does not, by itself, preclude a finding of good moral character. In this case, Mr. Nemetz was denied naturalization on the ground that his self-professed homosexual activity violated a Virginia sodomy statute, and, thus, was a crime of moral turpitude. Although a crime under Virginia law, consensual sodomy was and is not a crime in a number of states. Thus, the court said, the application of state law impermissibly would make eligibility for citizenship turn on an “accident of geography,” which would in turn undermine a uniform rule of naturalization. The court confirmed that private conduct is irrelevant for immigration purposes and that only acts harmful to the public can trigger the moral turpitude exclusion. In a reversal of policy, the INS adopted the Nemetz view, and INS Interpretations no longer bar a finding of good moral character solely because the homosexual conduct in question happens to be a crime under state law. The Interpretations, however, do preclude good moral character when the homosexual conduct involves minors, entails public solicitation, violates marital vows or has other “adverse public effects.” Of course, a lack of candor about one’s homosexual activity can preclude a finding of good moral character. State Department regulations similarly provide that a determination that a crime involves moral turpitude (for purposes of ineligibility under INA § 212(a)(2)(A)(i)(I)) “shall be based upon the moral standards generally prevailing in the United States.”
IMMIGRATION BENEFITS BASED ON A SAME-SEX RELATIONSHIP
INA does not recognize same-sex partnerships. While the INA grants immediate relative status and other benefits to the alien spouse of a U.S. citizen, the U.S. Court of Appeals for the Ninth Circuit held in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) that Congress intended to preclude a gay marriage from conferring spousal benefits under the INA, even if the marriage was valid under state law. This means that under the law, for example, a gay permanent resident cannot file an immigrant petition on behalf of his or her same-sex partner and that same-sex partners cannot be granted status normally accorded to the spouses of nonimmigrants. Not inconsistent is the Foreign Affairs Manual (FAM), which recognizes common law marriage or cohabitation, provided “it is recognized by local laws as being fully equivalent in every respect to a traditional legal marriage, i.e., it bestows all of the same legal rights and duties.” The INA’s failure to confer benefits based on a same-sex relationship makes it the first line of inquiry to evaluate the foreign partner’s eligibility for benefits independent of the relationship. All nonimmigrant classes should be considered, including the B-2 category for the partner of an E, H, or L nonimmigrant, which the INS has said would be appropriate for the same-sex partner of such a nonimmigrant, if not otherwise excludable. An application for a B-2 visa under these circumstances should include evidence of the applicant’s unabandoned foreign residence, his or her relationship to the principal nonimmigrant, evidence of joint assets, and other evidence of the relationship, such as a letter from the principal’s U.S. employer, if available. A visa annotation identifying the principal can facilitate an extension of the B-2 visa, as can an affidavit of support from the principal. Support for the use of the B-2 category under these circumstances can also be found in the FAM, which authorizes use of the B-2 visa when derivative status is not available to certain dependents of a nonimmigrant. The decision in Adams v. Howerton was predicated on the homosexual exclusion. The repeal of the exclusion once may have supported the argument that Congress thereby intended to recognize such marriages in immigration law. The Defense of Marriage Act (DOMA), enacted in 1996, however, undermines that argument. DOMA, passed in response to the possibility that the Hawaiian courts would permit same-sex marriages, defines “marriage” for purposes of any federal law as the legal union between a man and a woman. Even if legally sanctioned in one or more states, a same-sex marriage, or even a registered partnership, might not be the best option for the foreign national partner of a U.S. citizen or permanent resident alien under present law. It is unlikely that the INS or the Visa Office will confer spousal benefits based on a same-sex relationship, especially in light of DOMA. Further, such a “marriage” can actually negate the foreign partner’s nonimmigrant intent, which might be required by the only visa categories available, such as visitor or student. Finally, for a foreign partner who is out of status, a spousal petition could alert the INS to institute proceedings.
ELIGIBILITY FOR ASYLUM BASED ON SEXUAL ORIENTATION
As noted by one commentator, in China, “the ‘cure’ for homosexuality is electric shock ‘therapy.”’ In some countries, Islamic law provides for the death penalty after four convictions for consensual homosexual activity. Despite the severity of such persecution around the world, U.S. law and procedures historically precluded the grant of asylum for persecution based on sexual orientation. In recent years, however, especially after the 1990 Act repealed the homosexual exclusion, the INS and the Executive Office for Immigration Review have granted asylum to lesbians and gays because of a well-founded fear of persecution on the basis of membership in a particular social group. This trend gained momentum in 1994, when the Attorney General designated as precedent the Board of Immigration Appeals (BIA)’s decision in Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990), which involved a Cuban gay man fleeing government persecution. The Attorney General stated that “an individual who has been identified as a homosexual and persecuted by his or her government for that reason alone may be eligible for relief under the federal refugee laws on the basis of persecution because of membership in a particular social group.” According to the International Gay and Lesbian Human Rights Commission, the U.S. has granted asylum to about 300 gays and lesbians since 1994. The INS also has said that HIV (human immunodeficiency virus)-positive individuals can constitute a particular social group for purposes of asylum and other discretionary forms of relief. In developing an asylum application based on sexual orientation, it is important to demonstrate that the persecution was directly on account of the applicant’s homosexuality and not on some other basis. Extensive materials on the worldwide persecution of homosexuals and humanitarian remedies are available from human rights and gay rights organizations. Convention Against Torture (CAT) remedies, which are broader than those afforded by traditional asylum law, may also be available to gay aliens.
COMPARATIVE ANALYSIS OF IMMIGRATION OPTIONS WORLDWIDE
A number of countries confer immigration benefits on the basis of long-term unmarried partnerships. Same-sex “registered partnerships” (a form of legal recognition of the relationship) are entitled to the same immigration benefits as heterosexual married couples in Denmark, Norway, Sweden, and Iceland.
Other countries conferring immigration benefits based on a same-sex relationship are:
• The Netherlands. On January 14, 1998, the Netherlands adopted a registered partnership measure granting both heterosexual and homosexual partners every right of marriage except access to adoption and artificial insemination.
• France. In October 1999, France adopted the Civil Solidarity Pact, a sweeping domestic partnership law that gives unwed heterosexual and homosexual partners the same rights previously limited to married couples.
• Australia. The gay partner of an Australian citizen or resident can apply for an “interdependency temporary entry visa” and, later, for permanent residence. Permanent residence requires proof that the partners had a mutual commitment to a shared life for the 12 months immediately preceding the date of the application.
• New Zealand. An unmarried partner of a homosexual or heterosexual New Zealand citizen or resident is eligible for residence provided that the couple has been living together in a genuine and stable relationship for at least 12 months immediately preceding the date of application.
• United Kingdom. The United Kingdom grants immigration benefits on the basis of a relationship in which the parties have been living together for at least two years with the intent to do so permanently, are legally unable to marry and will not require public funds.
• Belgium. Belgium will issue a residence permit to a foreign partner cohabiting in a same or opposite sex relationship with a person having a valid right to Belgian residence.
• Canada. Canada has granted residence to homosexual partners of its citizens on “humanitarian and compassionate” grounds and has taken steps to broaden immigration options based on gay relationships. Recently, an Immigration Legislative Review panel issued a report, Not Just Numbers: A Canadian Framework for Immigration, recommending the redefinition of “spouse” to mean a partner in an intimate relationship with cohabitation of at least one year. In January 1999, the Canadian Immigration Minister issued a follow-up report recommending that the definition of “family” be expanded to include same-sex and common-law couples. On May 20, 1999, the Canadian Supreme Court ruled eight to one that same-sex partners are “spouses” for the purposes of family law, and Canada’s federal and provincial governments all agreed to rewrite their rules accordingly. The provinces of Ontario and Quebec have adopted laws giving homosexual couples the same rights as common-law pairs.
• Finland. The Immigration Office of Finland does not distinguish between heterosexual and homosexual common-law couples and has granted residence permits on the basis of homosexual relationships upon proof that the parties have lived together for at least one year.
• South Africa. The South African Constitutional Court recently ruled that the Aliens Control Act, which only allowed married partners of South African citizens to live and work in the country, unfairly discriminates against gay couples.
• Namibia. The High Court of Namibia granted a German lesbian residency in 1999, based on her long-term relationship with her Namibian partner and her contributions to Namibian society.
Several other countries, including the Czech Republic, Spain, Germany, Portugal, Switzerland, and Luxembourg, are considering partnership laws or similar legislation. The broad rights of movement enjoyed by members of the European Economic Area would appear to expand the generous immigration benefits conferred by participating countries.
