Immigrant Saved from Deportation Thanks to Same-Sex Marriage, but Still Has No Affirmative Legal Status

A Houston, Texas man received excellent news on Thursday, March 8, 2012, when an immigration judge closed the deportation case pending against him. This means that the government will not attempt to return David Gonzalez to his native Costa Rica for the foreseeable future. This is a notable event because Gonzalez has a legal claim to be present in the United States based on his same-sex marriage to an American citizen. Although Gonzalez can remain in the U.S., he cannot obtain any specific immigration benefits and cannot obtain work authorization.

Gonzalez came to the United States from Costa Rica on a tourist visa in 2000. He overstayed his visa, and then met U.S. citizen Mario Ramirez several years later. The two were married in 2008 in California during the brief time when same-sex marriage was legal there.

Under federal immigration law, spouses of United States citizens can obtain immigrant visas, which allow them to legally come to or remain in the country, with no annual numerical limitation. This means there is generally no waiting period to obtain a visa. The immigrant visa is the final step before obtaining a green card. Provided both spouses meet all of the legal requirements of moral character, financial ability, and so forth, obtaining a green card through marriage to a citizen is a relatively straightforward process. The complicating factor is when a state recognizes a marriage and the federal government does not.

Under the Defense of Marriage Act (DOMA), enacted by the U.S. Congress in 1996, the federal government does not recognize the legality of same-sex marriages, regardless of how state governments view such marriages. Currently, a handful of states allow same-sex marriage while most do not. Because of DOMA, federal immigration officials cannot confer immigration benefits based on same-sex marriage, even if one spouse is a U.S. citizen.

The Obama administration announced last year that it would no longer enforce DOMA. This has led to some heated political discourse and quite a bit of confusion among government agencies. One of the results of this decision is the outcome of Gonzalez’s case. By declining to enforce DOMA, the administration can shift the attention of immigration authorities away from people like Gonzalez and onto other types of removal cases. To an extent, Gonzalez and others in similar situations can claim their status as a spouse of a U.S. citizen, but it only provides them with a limited amount of protection.

The problem for people like Gonzalez is that, while the government can choose not to enforce a law, and therefore choose not to prosecute him, it cannot directly act against that law. In other words, the administration cannot confer benefits expressly prohibited by the law. This means that Gonzalez and others may remain in the country, perhaps permanently, but they are not legal permanent residents. They cannot obtain work authorization or green cards unless the law changes. Furthermore, a future presidential administration may take a different view of DOMA, in which case people like Gonzalez could once again face deportation.

Understanding and navigating the constantly-changing politics of the U.S. immigration system requires the help of an experienced and skilled Ohio immigration visa lawyer like Gus Shihab. To schedule a free and confidential consultation, contact us through our website or at (800) 625-3404.

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