January , 2019

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Binational Gay Couples Hopeful About Supreme Court Ruling on DOMA

New America Media

By Anthony Advincula

Felipe Sousa-Rodríguez is waiting to hear news this week that could change his immigration status and his life.

He and his partner, Juan Rodríguez, live in Tampa, Fla. Because same-sex marriage is not legally recognized in their home state, they went to Massachusetts last year and took their wedding vows.

Sousa-Rodríguez, 27, is an undocumented immigrant from Brazil; his partner, 24, is a legal U.S. permanent resident from Colombia, and has already filed an application for his U.S. citizenship.

But as the U.S. Supreme Court is expected this week to hand down the ruling on the Defense of Marriage Act (DOMA), Sousa-Rodríguez’s immigration status could change.

If the Supreme Court strikes down the DOMA provision that denies federal benefits to married same-sex couples, thousands of binational same-sex couples (who were legally married in one of the 12 states that allows same-sex marriage) will be eligible to file a green card application for their foreign spouse — an immigration benefit that is currently available only to heterosexual married couples.

“I can’t predict what the Supreme Court would do. But, if that’s the case [that it repeals the DOMA provision], it would be great,” said Sousa-Rodríguez, who is co-director of GetEqual, a group that seeks legal equality for LGBT (lesbian, gay, bisexual and transgender) individuals.

However, like many married binational same-sex couples, where one spouse is a foreign national and the other is a U.S. citizen or permanent resident, Sousa-Rodríguez expressed concerns about the impact a repeal of DOMA would have on his immigration status.

His most pressing question: Are we eligible even if we live in a state like Florida, where same-sex marriage is not legally recognized?

The answer, according to Steve Ralls, communications director of the advocacy group Immigration Equality, is yes. “If DOMA is repealed in the Supreme Court,” said Ralls, “a green card application for same-sex couples is going to be based on where the marriage was celebrated and not based on the couple’s domicile.”

Ralls said that while some provisions of DOMA are complicated, such as what this will mean for taxes due to the lack of legal precedence, the immigration benefit is very clear.

He says his organization is getting ready for what could be a massive change for same-sex binational couples.

“We have already been preparing applications for same-sex couples. In fact we’re now training 120 attorneys on how to handle their cases,” Ralls said. “I have not seen this kind of preparatory work before.”

A long journey

Sousa-Rodríguez was born and raised in a poor neighborhood in Rio de Janeiro. When he was 14, his mother became seriously ill and sent him to the United States so that his older sister in Florida could take care of him.

Without any options to file a petition to stay permanently, he overstayed his tourist visa. Despite the risks of getting detained or deported, he went to school and excelled academically.

In 2008, according to Souza-Rodriguez’s profile on the Huffington Post, the American Association of Community Colleges ranked him as one of the top 20 community college students and the best student in Florida.

Sousa-Rodríguez is not new to the immigration reform movement.

In the winter of 2010, while he was at Miami Dade College, Felipe, Juan and two other immigrant students walked 1,500 miles from Florida to Washington, D.C., to protest the record deportations of immigrants being carried out under the Obama administration.

Although he came out as gay and undocumented in 2008, the walk to Washington, D.C., was the first time he made national headlines.

“I was finally able to embrace my full self,” he said. “It was not an easy journey and it’s a journey I’m still walking.”

Since then, Sousa-Rodríguez has continued to push for an immigration overhaul that would grant legal status to millions of undocumented immigrants. He has been approved to get an employment authorization document through Obama’s Deferred Action for Childhood Arrivals (DACA). But he is pushing for comprehensive immigration reform for all undocumented immigrants.

“My job is to fight for all different components of the immigration movement,” Sousa-Rodriguez said. “Whether it is for binational same-sex couples, the DREAMers, or those seeking asylum, I’m here for equal rights.”

Silver lining

Although many conservative Republicans oppose same-sex marriage, civil rights advocates are optimistic that the Supreme Court will repeal the DOMA provision that prevents the federal government from recognizing same-sex marriage.

“Even the lower court says that it is unconstitutional,” Ralls added. “We’re very hopeful for the Supreme Court’s decision.”

The Supreme Court is also expected to announce its ruling on Proposition 8, the voter-approved ballot measure that banned same-sex marriage in California.

Ralls said he wouldn’t be surprised if the Supreme Court hands down only one ruling on Monday, but expects that the court “will likely give some additional ruling by the end of next week.”

Meanwhile, Sen. Patrick Leahy, D-Vermont, reintroduced last week the amendment to include same-sex binational couples in the Senate’s comprehensive immigration bill.

In the Senate Judiciary Committee last month, Leahy’s measure was left off the table, after some lawmakers voiced concerns that including the amendment could “kill” the immigration reform bill.

Leahy’s reintroduction of the bill on the Senate floor, advocates say, opens another possibility for equal protection and immigration benefits for the LGBT community, although observers say its chance of being approved by the Senate is a long shot.

Still, Sousa-Rodríguez remains hopeful that he will be granted the same rights as other couples, including the ability to apply for legal residency through his spouse.

“I believe it will happen soon,” he said.

Photo Caption: Pictured above: Juan Rodríguez and Felipe Sousa-Rodríguez (left to right) cutting the cake at their wedding last year in Massachusetts.

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