In March, we discussed President Obama and the US Department of Justice’s determination that the Defense of Marriage Act (“DOMA”) is unconstitutional. At that time, we believed it was only a matter of time until comprehensive immigration benefits were extended to same-sex couples. Now, we are seeing the first signs of progress.
On May 5, 2011, Attorney General Eric Holder, Jr. intervened in the Board of Immigration Appeals’ (“Board”) adjudication of a case involving a same-sex binational couple. In Matter of Paul Wilson Dorman, Attorney General Holder vacated the Board’s original decision because it relied on section 3 of DOMA to deny relief from deportation to an individual who claimed eligibility through his US citizen same-sex partner. Section 3 of DOMA states that “the word ‘marriage’ means 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.” This definition is applied to all federal laws, rulings, regulations, and interpretations of any US government agency. Consequently, under DOMA, US Citizenship and Immigration Services (“USCIS”), the Department of Homeland Security (“DHS”), and the Immigration Courts can recognize only heterosexual marriages in applications for immigration benefits. Thus, same-sex couples who are legally married or in a valid civil union cannot be granted immigration benefits through their relationship.
In its original decision, the Board followed DOMA and found Mr. Dorman ineligible for cancellation of removal because his same-sex partner could not be recognized as his “spouse” despite a valid New Jersey civil union. However, the Obama administration’s decision to turn away from DOMA allowed Attorney General Holder to step in and negate the Board’s decision. The Attorney General then sent the case back to the Board for further consideration, asking it to address four specific questions: (1) whether Mr. Dorman’s civil union qualifies him to be considered a “spouse” under New Jersey law; (2) whether, absent the requirements of DOMA, Mr. Dorman’s civil union would qualifies him to be considered a “spouse” under the Immigration and Nationality Act; (3) what, if any, impact the timing of Mr. Dorman’s civil union should have on his request for cancellation of removal; and (4) whether, if he had a “qualifying relative,” Mr. Dorman would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.
While these questions remain unanswered and no legal precedent has been set, this case marks the first time the executive branch has directed the Board to make specific decisions regarding the possible extension of immigration benefits to same-sex binational couples. It also marks the first steps toward significant policy changes in US immigration law. In time, these changes may lead to full recognition of same-sex marriages and civil unions by USCIS, DHS, and the Immigration Courts.
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Atty. Reeves has represented clients in numerous landmark immigration cases that have set new policies regarding INS action and immigrants’ rights. His offices are located in Pasadena, San Francisco, Las Vegas and Makati City.
Telephone: (800) 795-8009
E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Website: www.rreeves.com.
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The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the personalized representation that is essential to every case.
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