Coming out of the closet: Obama, gay marriage, and immigration

by Atty. Emmanuel Samonte Tipon 

Is it true, as a magazine cover displayed by comedian Jay Leno depicted, that Obama is “The First Gay President”? Probably not. But then who knows?

When I turned on the television before going to my radio program May 10, I saw President Obama on ABC news declare:  “At a certain point, I’ve just concluded, that for me personally, it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.”

Do you notice the equivocation and uncertainty? “I think”. When a witness declared “I think the defendant killed his wife,” the cross-examining lawyer jumped on him: “We don’t care what you think, did he or did he not kill his wife?” “But sir,” riposted the witness, “I am not a lawyer, I cannot talk without first thinking.”

Obama claimed that his position on gay marriage “evolved”. Sounds more like “revolved”. According to Elliott Abrams on the Weekly Standard as quoted by USA Today, 04/11/12:  “Obama has changed his position whenever his political fortunes required him to do so. Running for the Illinois state senate . . . in 1996, he was for gay marriage. . . In 2004, he was running for the U.S. senate and needed to appeal to voters statewide. So he evolved and favored civil unions but opposed homosexual ‘marriage.’ In 2008, running for president, he said, ‘I believe marriage is between a man and a woman. I am not in favor of gay marriage.’ Now in 2012, facing a tough reelection campaign where he needs energized supporters of gay ‘marriage’ ...  he is for it. To paraphrase John Kerry, he was for it before he was against it before he was for it again.”

GAY MARRIAGE AND IMMIGRATION

What happens when gay American citizens married to gay aliens file relative visa petitions to enable their alien same-sex partners to immigrate to the U.S.? The U.S. Citizenship and Immigration Services has routinely denied the petitions. What would happen if a gay U.S. citizen petitions his/her alien fiancé/fiancée? The USCIS would likely deny the petition. Reason: The Defense of Marriage Act (DOMA) recognizes marriage only between a man and a woman. Federal law governs immigration, and it does not matter whether state law recognizes the marriage.

How does the President’s position favoring gay marriage affect the enforcement of DOMA? If you were the lawyer representing a gay American, would you tell USCIS: “Your big boss thinks same-sex couples should be able to get married. You must approve this visa petition for my gay citizen client to bring my client’s gay partner to America. Otherwise I will tell your big boss that you don’t agree with him. Let’s see what happens.

The USCIS officer might tell you. “I will not adjudicate your petition until after the November elections. By that time we will have another President who is against gay marriage.”  Or the officer could tell you: “Obama simply said ‘same-sex couples should be able to get married.’ Obama did not say they should be able to immigrate.” Touché.

Five gay/lesbian American citizens married to aliens of the same sex whose visa petitions for the aliens were denied sued the Attorney General and officers of the Department of Homeland Security to compel them to reopen and readjudicate the petitions without regard to sex or sexual orientation. See Blesch v. Holder, Case No. 1:2012cv01578. The mandamus action was filed on April 2 in U.S. District Court in New York (E.D.) before Obama declared he supports same-sex marriage. It seeks to have DOMA (1 USC Section 7) declared unconstitutional as violative of equal protection of the laws.

That’s what I have been telling potential clients whenever they call claiming they are gay and want to petition their gay fiancé/fiancée –“Are you able and willing to sue the b......s.” (That means “big shots,” not “bastards”).


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)