Christopher and Joseph were legally married in the fictitious U.S. state of Petoria in August of 2012. Petoria State Code O.C.P.A. § 9-2-37(b)(5) defines marriage as a union between any two individuals, over the age of 18. Christopher is a U.S. citizen, and Joseph is from Beijing. They are both twenty-five (25) years old. Christopher and Joseph are buying a home together, and they share in the household duties and expenses, and they have bills in each of their names. Christopher and Joseph were college sweethearts and knew each other for six (6) years prior to their 2012 marriage.
Christopher has decided to file a family-based petition on Joseph’s behalf as his spouse. Christopher and Joseph talk to the senior partner at your firm and ask if the firm will handle the case. Before giving them an answer, the senior partner asks that you research whether Christopher and Joseph will face any challenges in attempting to file their petition as this issue has never been addressed at your office.
There are no courts in Petoria that have previously ruled on this issue. However, the senior partner seems to think that the U.S. Court of Appeals ruled on a similar case out of California in the 1980s. The senior partner asks that you find the U.S. Court of Appeals case and draft her a memorandum based on that case stating answering the following questions:
1) will Joseph be considered Christopher’s immediate relative spouse under the Immigration & Nationality Act for purposes of filing the petition; and
2) what effect will the fact that Petoria recognizes Christopher and Joseph’s marriage have upon USCIS’s decision?
Note: There is also a 2013 Supreme Court case that can and should be used in addition to the 1980 U.S. Court of Appeals case
ATTACHED IS THE SAMPLE ANSWER…..DO NOT PLAGIARIZE
TO: Senior Partner
DATE: Today’s Date
RE: Christopher & Joseph’s Family Based Petition
I. Is Joseph considered Christopher’s immediate relative under the INA?
Joseph would not be considered Christopher’s immediate relative
under the INA. Immediate relatives are defined in §201(b) of the INA as the children, spouses, and parents of U.S. citizens. In the case of Adams v. Howerton, No. 80-5029, 673 F.2d 1036; 1982 U.S. App. LEXIS 21494 (Cal. Dist. Ct. App. 9th Cir. Feb. 25, 1982), the court fully discusses the meaning of a “spouse” under the INA. The court states that “[n]othing in the act . . . suggests that the reference to “spouse” in section 201(b) was intended to include a person of the same sex as the citizen in question . . . . The term “marriage” ordinarily contemplates a relationship between a man and a woman . . . .Congress has not indicated an intent to enlarge the ordinary meaning of those words . . . . [I]t would be inappropriate [for us] to expand the meaning of the term “spouse” for immigration purposes.” Id. at 1041.
In the instant case, Christopher and Joseph are a homosexual couple. Christopher is a U.S. citizen petitioning on behalf of Joseph who is a citizen of Beijing. Christopher and Joseph were legally married in the state of Petoria in 2005. They live together and hold themselves out to be married in public. Christopher and Joseph are considered to be each other’s spouse for marital purposes. Under the INA, although one spouse may petition for another spouse, case law interprets Congress’ intent to have one spouse petition on another’s behalf as being heterosexual spouses.
Therefore, although a “spouse” is an immediate relative; if the spouses are not a heterosexual couple, they are not considered as each other’s immediate relative under the INA. So, because Christopher and Joseph are a homosexual married couple rather than a heterosexual couple, Joseph would not be considered Christopher’s immediate relative under the INA.
II. What effect will the fact that Petoria recognizes Christopher and Joseph’s marriage have upon USCIS’ decision?
The fact that Petoria recognizes Christopher and Joseph’s marriage will have no
effect upon USCIS’s decision. Case law has long established that a two-step analysis is used to determine if a marriage is recognized under the INA. It must be determined 1) if the marriage is valid under state law, and 2) if the state marriage is valid under the INA.
As to the first step in the two-step analysis, there is no question as to whether the marriage is valid under state law. We know that the facts plainly state that Christopher and Joseph were legally married in Petoria in 2005. Again, Petoria State Code O.C.P.A. § 9-2-37(b)(5) defines marriage as a union between any two individuals, over the age of 18. This code does not distinguish between heterosexual and homosexual marriages. Therefore, Christopher and Joseph, two male individuals, who are both twenty-five (25) years old and thus over the age of eighteen (18) have a valid marriage under Petoria state law.
Step two of the analysis looks at whether the marriage is valid under the INA. As outlined above, Congress did not intend for marriages under the INA to include homosexual marriages such as the marriage between Christopher and Joseph. Although the marriage is valid in Petoria, Congress does not recognize it as valid. When a state law conflicts with a federal law, the federal law trumps the state law. “Congress has almost plenary power to admit or exclude aliens . . . and the decisions of Congress are subject only to limited judicial review.” Id. at 1041. Therefore, part two of the two-step analysis would not be met, and the fact that Petoria recognizes Christopher and Joseph’s marriage would have no effect upon USCIS’ decision.
In conclusion, Joseph will not be considered Christopher’s immediate relative under the definition in Section 201(b) of the INA. Further, although the state of Petoria recognizes the marriage, Congress does not recognize the marriage as valid under the INA, and Christopher still cannot petition on Joseph’s behalf as his immediate spouse