U.S. State Department officials have declined to pursue the case of a Guatemalan child who was kidnapped from her home by a Guatemalan adoption agency and legally adopted by a Missouri couple six years ago.  The State Department informed Guatemala’s government that because the two countries had not signed the Hague Convention on the Civil Aspects of International Child Abduction at the time the child was abducted in 2006, the federal government lacked jurisdiction over the case, and that the girl’s biological mother, Loyda Rodriguez, will have to pursue her claim in state court.

Ms. Rodriguez seeks the return of her daughter, Anyeli Hernandez Rodriguez, now 7 years old, and argues that the adoption of Anyeli by her American adoptive parents was invalid because of the abduction.  Additionally, she argues, the documentation used by the Guatemalan adoption agency to process the child through the U.S. Citizenship and Immigration Services (USCIS) was fraudulent.  Among the fraudulent documentation used to bring Anyeli to the United States was a Guatemalan passport, which was used when Anyeli exited Guatemala.

The court in Missouri will likely make a determination on whether or not to return the child to her biological parents based upon the best interests of the child standard, which could make it difficult for Ms. Rodriguez and her husband, Dayner Orlando Hernandez, to reunite with their daughter, due to the length of time Anyeli has lived with her adoptive parents.  Had the State Department taken jurisdiction over the case under the Hague Convention, Anyeli would likely have been returned to her parents after a relatively lengthy application process was completed, which is why the State Department’s failure to pursue Anyeli’s child abduction case was such a significant development in the case.

Last week, North Carolina followed suit with several other states in passing a state constitutional amendment defining marriage as between one man and one woman (and also foreclosing the option of civil unions and domestic partnerships for both same and opposite sex couples in North Carolina).  There are, however, several states that do permit same sex marriages.  How does the United States Citizenship and Immigration Services deal with this issue when considering family-based immigration petitions?

Federal Law Does Not Recognize Same-Sex Marriages

Under the Defense of Marriage Act (DOMA), the federal government only recognizes heterosexual couples for purposes of applying for government benefits — which arguably includes sponsoring immediate relatives for immigration petitions.  Last year, the Obama administration announced its position that DOMA was unconstitutional and therefore the adminstration would not defend the act in court.  However, the administration’s approach to enforcement of DOMA has been something of a mixed bag, which is leading to a great deal of confusion and frustration among citizens and LPRs who have immigration petitions pending for their immigrant spouses.  So far, the trend with the USCIS has been to deny family-based immigration petitions for same-sex spouses who have valid marriages in their home states.  However, with President Obama’s recent announcement that he does, in fact favor same-sex marriage, that may very well change.

New York Case Challenges Current Policy

Last month, Immigration Equality filed a complaint in the U.S. District Court for the Eastern District of New York on behalf of several married gay couples, who are legally married in New York, against the federal government alleging that the USCIS’ policy in preventing the plaintiffs from sponsoring their legally-recognized spouses for lawful permanent residence is unconstitutional.  In cases of married heterosexual couples, the government will recognize the foreign national spouse as an “immediate relative” which would allow the citizen or lawful permanent resident spouse to sponsor his/her immigrant spouse for a green card or even citizenship.  The complaint alleges that the USCIS’ enforcement of DOMA in the context of considering family-based immigration petitions violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

The effects of legislation regarding families are far-reaching, and almost always substantially impacts the way immigration applications are considered.  Immigration attorneys and immigrants alike should monitor new developments in the policies of this administration, as well as the laws of their states with regard to domestic relations.  The only certainty is that immigration law and policy will evolve along with this country’s definitions of marriage and family relations.