Reopening Deportation Orders Based on Same-Sex Marriage

By Attorneys Ben Loveman & Nancy E. Miller

For same-sex couples, years of discrimination and unequal treatment in all aspects of public and private life has meant lack of access to numerous benefits that heterosexual couples take for granted. Key among these benefits has been the right to apply for immigration benefits and for relief from deportation based on marriage or a family relationship based on marriage.  Thus, many people have been ordered deported because immigration authorities did not recognize their right to apply for relief from deportation based on same-sex relationships.  A newly announced policy from Immigrations and Customs Enforcement (ICE) seeks to remedy, to some degree, the harmful impact of the previously discriminatory legal framework.

In recent history, it was DOMA (the Defense of Marriage Act) which was used to deny same-sex couples access to Federal immigration benefits even where couples were legally married according to state law or the law of their residence.  However, in 2013 the U.S. Supreme Court issued a ground-breaking decision striking down DOMA as unconstitutional and laying the foundation for same-sex couples to obtain benefits under U.S. Federal laws.   The excitement over the decision grew as United States Citizenship and Immigration Services (USCIS) as well as the Department of State (DOS) and the Executive Office for Immigration Review (EOIR) announced that same-sex couples could apply for benefits under U.S. immigration law and would be treated identically to other applicants. 

Currently, USCIS, DOS, and EOIR treat applicants for all types of benefits including family and employment based immigrant visa petitions, applications for relief from deportation, as well as non-immigrant visa benefits equally.  This policy is more far reaching than just granting green cards to those married to a same sex partner.  Almost all waivers for grounds of inadmissibility or removability require a qualifying relative who will experience extreme (or higher) hardship if the non-citizen is deported. Qualifying relatives include parents, spouses and children (or adult sons and daughters) of the person needing the waiver.  Before the change in law, the hardship to these family members was not taken into consideration because the family relationship was not recognized.  But now it is. 

But one group of people did not benefit from the change in law – until now.  In the years leading up to this monumental policy shift, thousands of people have been ordered deported because they could not qualify for immigration benefits based on their same-sex relationships and thus were unable to apply for relief from deportation proceedings. 
Thankfully, ICE has recently announced a new policy that will allow many people who were previously ordered deported or removed to seek to reopen their cases and apply for relief from removal even though they might have been ordered deported many years ago. 

Generally a motion to reopen deportation proceedings must be filed within 90 days of the date of the final order of removal.  However, where an ICE attorney agrees to cooperate in seeking the reopening of a past deportation order, the time limits can be waived. ICE’s new policy is to cooperate if a person can show they are now in a bona fide same-sex marriage that qualifies the previously deported person for potential relief from deportation.

Determining whether a person is qualified for relief from removal requires careful analysis.  However, it is not enough merely to be married to a U.S. citizen. The couple will need to show that the marriage is not just legal but real.  In other words, that it is based on a true relationship where the couple intends to live together as a married unit. 

Each form of relief from removal including adjustment of status, cancellation of removal, waivers of removal or inadmissibility, has its own set of requirements that must be established before an immigration judge.  The analysis of eligibility for relief must be completed prior to approaching ICE with a request to reopen a case.  In addition to showing statutory eligibility, the alien will have to show that ICE should join in the exercise of their discretion. 

If you or a loved one were previously ordered deported or removed and are now in a same-sex marriage, you may qualify to have your deportation proceedings reopened so that you can apply for relief from removal and possibly gain lawful permanent resident status.  Of course, you must still be otherwise eligible for permanent residency or the relief from deportation you are seeking.  If this new policy may impact you it is essential that you consult with an experienced immigration attorney to evaluate your case.