BILL ANALYSIS
AJR 15
Page 1
Date of Hearing: August 18, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AJR 15 (De Leon) - As Amended: August 17, 2009
As Proposed to Be Amended
SUBJECT : UNITING AMERICAN FAMILIES ACT
KEY ISSUE : SHOULD THE LEGISLATURE URGE CONGRESS TO PASS, AND
THE PRESIDENT TO SIGN, THE UNITING AMERICAN FAMILIES ACT, TO
REMOVE LEGAL BARRIERS TO IMMIGRATION BY PERMANENT SAME-SEX
PARTNERS?
FISCAL EFFECT : As currently in print this measure is keyed
non-fiscal.
SYNOPSIS
This measure would request the Legislature to urge Congress and
the President to adopt the Uniting American Families Act of 2009
(UAFA). This proposed federal legislation would add the phrase
"or permanent partner" to sections of immigration law that
provide immigration rights to legally married couples. The UAFA
also seeks to allow gay and lesbian citizens to sponsor their
partners for United States citizenship. Supporters assert that
the UAFA simply recognizes the basic principle of equality that
same-sex couples are deserving of the same treatment under
immigration law as heterosexual couples. Supporters further
contend that the UAFA contains strong deterrents to immigration
fraud and requires same-sex couples to provide the same proof of
their relationship as opposite-sex married couples must provide
to sponsor their partner for citizenship. Opponents contend
that, in creating an exception for permanent same-sex partners
under immigration law, the UAFA undermines the federal Defense
of Marriage Act defining traditional marriage as between a man
and a woman.
SUMMARY : Urges the U.S. Congress to pass, and the President to
sign, the Uniting American Families Act (UAFA), legislation that
would remove a number of legal barriers to immigration by
permanent same-sex partners of U.S. citizens. Specifically,
this measure :
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1)Asserts that the principle of family unification is an
unassailable characteristic of our immigration system under
which legal permanent residents and U.S. citizens should be
able to sponsor their loved ones for immigration status.
2)States that federal law does not currently recognize permanent
same-sex partners as family members for immigration purposes,
including same-sex partners that are married or recognized as
married in other states, resulting in thousands of U.S.
citizens being forced overseas to be with foreign-born
partners, causing them unnecessary hardship and separation
from U.S. family members and careers.
3)States that the Uniting American Families Act (UAFA),
introduced in Congress by Senator Patrick Leahy and
Representative Jerrold Nadler, seeks to amend the Immigration
and Nationality Act to allow U.S. citizens and legal permanent
residents to sponsor same-sex partners for immigration.
Further notes that the Act has 115 cosponsors in the U.S.
House of Representatives and 20 cosponsors in the U.S. Senate.
4)States that the Reuniting Families Act (RFA), introduced in
Congress by Representative Mike Honda, incorporates the UAFA
as part of a broad family immigration bill that will overcome
many barriers to family reunification in current immigration
law.
5)Recites the definition of "permanent partner" as specified by
the UAFA.
6)Asserts that binational same-sex partners, while relatively
low in number, are severely harmed by discrimination and the
lack of protection under current immigration law, and that
data does not indicate any fraud perpetuated by persons or
partnerships in domestic partners benefit plans in the U.S.
since such benefit plans began in 1982.
7)States that the UAFA would bring federal immigration law in
line with 17 other countries that currently recognize same-sex
partnerships for immigration purposes.
8)Memorializes the Legislature to urge Congress to include the
Reuniting Families Act and the Uniting American Families Act
in comprehensive immigration reform, or alternatively, to
pass, and the President to sign, the Uniting American Families
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Act as stand-alone legislation at the earliest possible date
to remove legal barriers to immigration by permanent same-sex
partners.
EXISTING LAW :
1)Pursuant to the Immigration and Nationality Act, allows U.S.
citizens and permanent residents to sponsor their spouses and
relatives for entry into the United States in the interest of
family reunification. (Chapter 12 of Title 8 of the United
States Codes.)
a) "Immediate relatives", defined as spouses and minor
children of U.S. citizens, and parents of U.S. citizens who
are over age 21 (21 U.S.C. 1151(b)(2)), are exempt from
immigration quotas and, when sponsored, are generally
processed quickly through the immigration system.
b) Other "family preference" categories of relatives,
including adult children and siblings of U.S. citizens, and
spouses, minor children, and adult married children of
lawful permanent residents (21 U.S.C. 1153(b)), may be
sponsored, but are generally processed much more slowly due
to severe backlogs that may delay action for years.
c) Authorizes the issuance of a temporary visa to an alien
(non-citizen) fiancee or fiance of a U.S. citizen upon
approval of a petition filed by the citizen, accompanied by
satisfactory evidence establishing that the parties have
previously met in person within two years before the date
of filing the petition, have a bona fide intention to
marry, and are legally able and actually willing to
conclude a valid marriage in the United States within a
period of ninety days after the arrival of the fianc? or
fianc?e. (21 U.S.C. 1184(d).)
2)Pursuant to the Defense of Marriage Act, provides that in
determining the meaning of any Act of Congress or federal rule
or regulation, the word "marriage" shall mean only a legal
union between one man and one woman as husband and wife and
the word "spouse" refers only to a person of the opposite sex
who is a husband or a wife. (1 U.S.C. 7)
3)Pursuant to the Due Process Clause of the Fifth Amendment to
the United States Constitution, provides that "No person shall
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. . . be deprived of life, liberty, or property without due
process of law."
COMMENTS : This resolution urges Congress to support the removal
of legal barriers to immigration that affect permanent same-sex
partners in binational relationships. Specifically, the
resolution calls on Congress either to include the Reuniting
Families Act, which incorporates the Uniting American Families
Act, in comprehensive immigration reform, or to pass the Uniting
American Families Act on its own as stand-alone legislation. In
support of the measure, the author writes:
The federal Uniting American Families Act (UAFA) would
amend the Immigration and Nationality Act to add
same-sex "permanent partners" to the list of family
members that a U.S. citizen or legal resident could
sponsor for immigration.
Since current law does not allow gay and lesbian
Americans and permanent residents to sponsor their
foreign-born partners for legal residency, they cannot
access the family immigration system for green cards
and immigrant visas. Because of this inequity,
thousands of lesbian and gay bi-national couples are
kept apart, torn apart, or forced to stay together
illegally, with one partner living in constant fear of
deportation.
Status of Federal Legislation . On February 12, 2009, the UAFA
was introduced in the 111th Congress by Senator Patrick Leahy
(D-VT) in the Senate (S. 424) and Representative Jerrold Nadler
(D-NY) in the House. (H.R. 1024.) At the time of this
analysis, the measure has 115 co-sponsors in the House, and 20
cosponsors in the Senate. In addition, on June 4, 2009,
Representative Mike Honda (D-CA) introduced the Reuniting
Families Act (H.R. 2709), which includes UAFA as one component
of a larger immigration reform package.
Proposed Definition of "Permanent Partner" under the UAFA . The
UAFA would amend the Immigration and Nationality Act (INA) to
add, where appropriate, the phrase "or permanent partner" in
sections that specify immigration rules and policies regarding
sponsorship of non-citizen family members by U.S. citizens.
The UAFA defines "permanent partner" as an individual 18 years
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of age or older who: (a) is in a committed, intimate
relationship with another individual 18 years of age or older in
which both parties intend a lifelong commitment; (b) is
financially interdependent with that other individual; (c) is
not married to or in a permanent partnership with anyone other
than that other individual; (d) is unable to contract with that
other individual a marriage cognizable under the INA; and (e) is
not a first, second, or third degree blood relation of that
other individual.
UAFA Does Not Appear to Conflict with the Defense of Marriage
Act. The Defense of Marriage Act (DOMA), 1 U.S.C. 7, provides
that, in determining the meaning of any Act of Congress or
federal rule or regulation, the word "marriage" shall mean only
a legal union between one man and one woman as husband and wife
and the word "spouse" refers only to a person of the opposite
sex who is a husband or a wife. The UAFA does not appear to
violate or even implicate these provisions of DOMA because it
does not include same-sex partners in the definition of "spouse"
and does not alter the definition of marriage under DOMA.
Instead, the UAFA creates another class of persons, designated
as "permanent partners," who are eligible for sponsorship under
federal immigration laws. Therefore, in urging Congress to pass
the UAFA, the California Legislature would not be urging the
adoption of legislation that conflicts with existing federal law
on same-sex marriage under DOMA.
ARGUMENTS IN SUPPORT : According to supporters of the
resolution, the United States is behind other democracies in
extending fair treatment in immigration policies to same-sex
partners in binational relationships, and the UAFA would bring
U.S. immigration law in line with at least 17 other countries
that currently recognize same-sex partnerships for immigration
purposes, including, but not limited to, Australia, Belgium,
Brazil, Canada, Denmark, Finland, France, Germany, Iceland,
Israel, the Netherlands, New Zealand, Norway, Portugal, South
Africa, Sweden, and the United Kingdom.
To profile those most affected by the current U.S. immigration
policy, supporters cite figures from the most recent U.S. Census
showing that there are nearly 36,000 gay and lesbian Americans
in bi-national relationships, with a median age of 38 years old,
and that 47% of bi-national couples are raising children. These
demographic data, supporters contend, show that these are
mature, committed relationships that are jeopardized by current
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policy that prohibits the sponsorship of the non-citizen partner
by the partner who is a U.S. citizen.
Supporters further contend that the UAFA, consistent with basic
principles of U.S. immigration law, contains strong prohibitions
and deterrents against immigration fraud. These supporters note
that UAFA requires same-sex couples to provide the same proof of
their relationship as opposite-sex married couples must provide
to sponsor their partner, writing:
[Under the UAFA] (P)ermanent partners, like married
couples, would be required to prove emotional and
financial commitment through documentation such as
jointly owned property, shared child custody, joint
bank accounts and credit cards, shared insurance
policies, [etc.] . . . Applicants for permanent
partnership benefits would face the same rigorous
"green card" interview as married couples. If the
interviewer suspects fraud, the couple would be
required to complete a second more rigorous interview
in which the couple is questioned separately and the
interviewer determines whether the answers are
sufficiently consistent. Criminal penalties and
deportation for fraud provide an increased deterrent
against sham marriages, and they should do the same to
deter against sham permanent partnerships.
Moreover, as with any family-based petition for
immigration benefits, the sponsoring [citizen or
permanent resident] will be required to submit an
Affidavit of Support on behalf of her or his partner.
The Affidavit of Support is a binding contract between
the sponsor and the government which permits the
government to sue the sponsor if the immigrant
accesses means-based benefits before working for an
aggregate 40 quarters (generally, ten years) or
becoming a U.S. citizen. The Affidavit of Support
provides another strong deterrent against fraud.
Finally, like married couples, partners who have been
together for two years or less are only eligible to
apply for conditional residence. Conditional residency
requires an additional interview with immigration
officials at the end of the two-year conditional
status to show that the couple is still together and
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that the relationship was indeed bona fide.
Conditional residency is another deterrent against
fraud.
In addition, to alleviate concerns that people will claim
permanent partner status under the UAFA in order to gain access
to government benefits, supporters also cite at least one
research study published in 2001 that concluded that there had
not been a single case of documented fraud perpetrated by a
person or partnership in any domestic partners benefit plan in
the United States since those benefit plans began in l982.
The Committee received a number of letters from private
individuals urging support for this resolution. Many of these
citizens describe, often rather eloquently, their personal
experiences in entering a committed relationship with a same-sex
partner from another nation who, because of current U.S.
immigration law, they could not sponsor for immigration to this
country. In all of these cases, the writers report either being
forced to live apart in separate countries or facing that
prospect imminently while immigration proceedings are pending.
ARGUMENTS IN OPPOSITION : The resolution is opposed by Capitol
Resource Family Impact (CRFI), which identifies itself as
"California's leading pro-family public policy organization."
CRFI believes that the UAFA undermines the federal Defense of
Marriage Act protecting traditional marriage, writing in
opposition:
Under federal law, only traditional, heterosexual
marriage is recognized as valid marriage. The Defense
of Marriage Act (DOMA) specifically defines marriage
as being between one man and one woman. For family
members to immigrate to America, they must be family
by blood, marriage, or adoption. The Uniting Families
Act seeks to make an exception to this rule and
undermine important DOMA policy of protecting
marriage.
Author's Technical Amendments. To correct certain statements of
fact and law, the author proposes to make a few technical
amendments. First, equal protection under the U.S. Constitution
is guaranteed to every person under U.S. jurisdiction, not just
those who are American citizens. Second, in addition to the
countries listed in the resolution, Spain and Switzerland also
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currently recognize same-sex partnerships for immigration
purposes. The amendments are as follows:
On page 1, line 1, strike out "American" and replace with
"person in the United States".
On page 2, line 39, strike out "16" and insert "19".
On page 3, line 3, after "Norway," insert "Spain," and after
"Sweden," insert "Switzerland,".
Prior Legislation : AJR 60 (Lieber), Chapter 192, Statutes of
2004, urged the President and Congress of the United States to
adopt the Permanent Partners Immigration Act of 2003 (a
precursor to the UAFA), which would have added the phrase "or
permanent partner" to sections of immigration law that provide
immigration rights to legally married couples, and would have
allowed gay and lesbian citizens to sponsor their partners as
United States residents. Ultimately, that proposed 2003 federal
legislation was not enacted into law.
REGISTERED SUPPORT / OPPOSITION :
Support
Equality California (sponsor)
Asian Communities for Reproductive Justice (ACRJ)
Anti-Defamation League]
California Immigrant Policy Center
Love Exiles Foundation
Planned Parenthood Affiliates of California
Letters from 8 individuals
Opposition
Capitol Resource Family Impact
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334