How ruling on same-sex benefits could impact undocumented immigrants

Same-sex marriage supporters demonstrate in front of the Supreme Court on March 27, 2013 in Washington, DC. JEWEL SAMAD/AFP/Getty Images

In Supreme Court arguments today considering the constitutionality of the Defense of Marriage Act (DOMA), most of the justices sounded skeptical of the law. Should the court strike down the 17-year-old law, it could directly benefit hundreds of thousands of legally married same-sex couples in the U.S. -- it could also end up helping an untold number of undocumented immigrants.

DOMA prohibits federal recognition of same-sex marriages. Section 3 of the law -- the specific section that's been called into question -- denies married same-sex couples thousands of federal benefits. Those benefits include immigration-related benefits, such as applying for a marriage-based green card.

"The result for many couples is that they are forced to live thousands of miles apart and only able to spend time with their husband or wife for weeks at a time," the DOMA Project, which advocates for binational same-sex couples, wrote in a release. "Other couples are exiled from the United States all together, and must relocate to another country in order to live with their spouse."

Several members of Congress, including Sen. Kirsten Gillibrand, D-N.Y., have asked the Obama administration to temporarily put on hold immigration cases and deportation orders relating to same-sex foreign-born couples until the Supreme Court issues its verdict in the DOMA case, referred to as United States v. Windsor.

In deportation guidelines issued last year, the Department of Homeland Security did direct immigration officers to consider "long-term, same-sex partners" as families when considering potential deportation cases. However, Homeland Security Secretary Janet Napolitano has said she can't put these cases on hold as long as DOMA is on the books, in spite of the requests from Gillibrand and others.

"The legal advice we have received is that we can't put them in abeyance because DOMA remains the law," Napolitano said in a White House news conference last month, as the Washington Blade reported . "We'd like to see that law overturned. In practical terms, however, most of those cases fall within very, very low priority in terms of what we've done over the last years, which is to build priorities into immigration enforcement, so we're not seeing, in practicality, those deportations occur."

According to a report released this month from the liberal-leaning think tank the Center for American Progress, there are an estimated 32,300 binational same-sex couples in the U.S. -- meaning one native-born U.S. citizen and one noncitizen. It's important to note, however, that repealing DOMA would only impact a fraction of these same-sex binational couples, since same-sex marriage is only legal in nine states and the District of Columbia.

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