Obergefell’s Impact on Immigration Proceedings

In June 2015 in Obergefell v Hodges, the Supreme Court held that states cannot deny marriage licenses to same-sex couples. Applicants for immigration status in the United States are now asking what impact Obergefell will have on matters like spousal petitions, asylum applications, refugee status, or relief from removal. The answer varies with the different types of immigration petitions.

First, it’s unlikely that Obergefell will have a significant impact on spousal petitions, as the U.S. Citizenship and Immigration Services already recognized same-sex petitions. On July 1, 2013, Secretary of Homeland Security Janet Napolitano issued a statement saying, “After last week’s decision [referring to United States v. Windsor] by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implications for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” Thus since July of 2013 same-sex couples have been able to petition for the spouse under an I-130. However, after Obergefell more same-sex couples may apply because they can get married in their home state instead of moving to one of the states that already offered same-sex marriage licenses.

Second, Obergefell will have some broad implications for asylum and refugee petitioners. Secretary Napolitano’s July 2013 statement opened the door for same-sex spousal petitions. But Obergefell, by recognizing same-sex marriages as a constitutional right, necessary implies that a same-sex couple’s children are legitimate members of the family. This is very important in all immigration proceedings, as many forms of relief are contingent on being a family member of a lawful permanent resident or U.S. citizen. By expanding the scope of recognized marriages, the Supreme Court effectively expanded the class of derivative beneficiaries that may seek asylum or refugee relief as family members of U.S. citizens.

Finally, Obergefell will have an impact on relief available in removal proceedings. For example, derivative beneficiaries of same-sex married couples will be able to claim relief in asylum proceedings. A sibling petitioning for his brother, who is in a same-sex marriage, will be able to include his brother’s husband.

It remains to be seen how Obergefell will impact the volume of cases and petitions processed at USCIS. However, it definitely improves the prospects of same-sex spouses and their relatives.

Victor Herrera

Victor J. Herrera is an associate of Brown, White, and Osborn LLP. His practice includes immigration, criminal law, and litigation. He has handled a wide variety of cases, including asylum petitions, removal proceedings, immediate family petitions, employment petitions, and human trafficking visas.
Victor Herrera