Post-Deportation Remedy and Windsor’s Promise (2016, Kate Shoemaker)
Since 1996, the Defense of Marriage Act (DOMA) defined marriage for federal purposes as the union between a man and a woman. As same-sex marriage became legal across the United States, DOMA created a situation in which same-sex married couples could not access federal immigration benefits based on their married status. In some cases, this meant that noncitizens were removed from the United States solely because their same-sex marriages to U.S. citizens were not recognized by the federal government. This Comment calls such individuals pre-Windsor deportees, because their removal could have been prevented had it occurred after the U.S. Supreme Court’s 2013 decision in United States v. Windsor, which effectively ruled DOMA unconstitutional. Essentially, pre-Windsor deportees were removed from the United States on the basis of an unconstitutional law.
This Comment argues that pre-Windsor deportees should have access to a remedy for their wrongful removal. Specifically, pre-Windsor deportees should be able to reopen their removal proceedings on collateral review through a motion to reconsider. Windsor should be applied retroactively to vacate the underlying orders of removal. This presents a formidable obstacle, because the Court’s retroactivity jurisprudence is complex and unsettled. Thus, the bulk of this Comment is devoted to arguing that Windsor should be applied retroactively. Finally, this Comment determines that the proper remedy for a pre-Windsor deportee is unimpeded return to the United States as a legal permanent resident (LPR), and this conclusion is identified as an important area for further scholarly commentary