Attorney General Eric Holder today filed a very rare decision, vacating a decision by the Board of Immigration Appeals related to the application of Paul Wilson Dorman, in which the BIA applied Section 3 of the Defense of Marriage Act to his pending case.
Pursuant to my authority set forth in 8 C.F.R. § 1003.1(h)(1)(i), I order that the decision of the Board of Immigration Appeals (“Board”) in this case applying Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, be vacated, and that this matter be referred to me for review.
Saying the attorney general “has taken [an] extraordinary step” with the decision, attorney Eric Berndt — the supervising attorney for the National Asylum Partnership on Sexual Minorities at the National Immigrant Justice Center — tells Metro Weekly, “It adds some heft to our requests for prosecutorial discretion in individual cases in which the foreign partner” of a same-sex bi-national couple is seeking a green card because of his or her citizen same-sex partner.
Attorney Lavi Soloway, a co-founder of Immigration Equality, has been one of the leading attorney-advocates on the issue of asking the government — the Department of Justice, Department of Homeland Security and White House — to exercise that discretion. Soloway tells Metro Weekly in an email, “This development could be a sign that the Obama administration is looking for a way to protect gay and lesbian bi-national couples who are currently barred from the regular marriage-based immigration process by the Defense of Marriage Act.
Immigration Equality’s communications director, Steve Ralls, writes, “This seems to be a step in the right direction. I have little doubt that the recent, significant Congressional pressure on DOJ, led by Senator Kerry and Congresswoman Lofgren, played a key role in Holder’s decision.”
Of his current work at Stop the Deportations, Soloway says, “This is precisely why we must continue to advocate for the executive branch to implement administrative remedies to keep couples from being torn apart, remedies which include instituting a moratorium on deportations.”
In Holder’s decision, he goes on to state four questions that he directs the BIA to consider:
In the exercise of my review authority under that regulation, and upon consideration of the record in this case, I direct that the order of the Board be vacated and that this matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act; 3) what, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief; and 4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.
Unlike in other cases in which Soloway has pressed this issue, this case appears to involve a couple who have a civil union in New Jersey — and not a marriage license in one of the jurisdictions that permits same-sex marriages.
It will be interesting to see what the Board of Immigration Appeals says about questions 2 posed by Attorney General Holder. Historically, U.S. immigration laws have not recognized same sex marriages or partnerships as being eligible for marriage-based immigration benefits.
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