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Same Sex Marriage Deportation Waivers

The June 2013 decision by the Supreme Court striking down the Defense of Marriage Act (DOMA) has resulted in the federal government’s recognition of the equality of same sex and heterosexual marriages. The implications are far reaching.

Withholding of Deportation
If an Immigration Judge hears an asylum claim, even though he/she is convinced that the claim is creditable the Judge may still deny it because the asylum claim was not filed within one year of arrival as required by the law or because the alien has committed a substantial crime. Still the Judge may grant withholding of deportation that allows the beneficiary to remain in the U.S. for life and to receive permission to work. Withholding is not permanent residence; it will not permit the beneficiary to apply for residence for immediate family members and it will not lead to the possibility for citizenship. A Motion to Reopen or Reconsider may be made because after a same sex marriage has occurred the Judge may be asked to reconsider the denial of asylum for factors relevant to family reunification. Same sex couples are now considered to be immediate family members. Therefore family reunification would extend to same sex spouses. Thus he/she could move to reopen or reconsider the denial of asylum, taking into account the issue of family reunification.

Waiver of Inadmissibility
The Attorney General of the United States may waive inadmissibility for immigrants who have a physical or mental disorder. This waiver may be applied to gender ambivalence that resulted in criminal activity, particularly for U.S. citizens whose same sex spouse could not stay with them in the U.S. because of their condition. Extreme hardship would not be necessary to demonstrate if the activity occurred more than 15 years before. If the activity occurred within 15 years then extreme hardship would have to be shown for the U.S. citizen. The criminal activity would include an alien convicted of 2 or more offenses with an aggregate sentence of 5 years or more or for an alien convicted of prostitution.

Internal Revenue Filings
Same sex spouses need to file 2013 joint tax returns or as married, filing separately. A same sex marriage performed in a State where it is legal is then legal in all 50 States. The newly married same sex couple may also amend their tax return for 2012 if they choose to enable them if possible to get a tax refund.

Thirteen States have agreed to allow same sex marriages. The other 37 States have not yet agreed. The full faith credit clause of the Constitution obliges States to respect the marriages that were performed in States where it is legal. As a result same sex marriages are entitled to Medicare benefits nationwide. As for example, Medicare provides necessary nursing care for spouses of Medicare recipients. For the 37 States that have not yet agreed to allow the performance of same sex marriages, some of these States may agree to perform marriages over the next year or two. The remaining holdout States may have to face discrimination in court actions because of the denial of equal rights for same sex couples.

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