Integrity Legal

It recently came to this blogger’s attention, via the website MetroWeekly.com, that the Attorney General of the United States, Eric Holder, has vacated a decision of the Board of Immigration Appeals which applied controversial section 3 of the so-called “Defense of Marriage Act” (DOMA) in a recent case. To quote directly from a PDF copy of AG Holder’s order as posted to the aforementioned website:

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.

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.

Those reading this posting are encouraged to read the article on Metroweekly.com posted by Chris Geidner regarding these issues as this blogger found that posting to be very insightful.

For those who are not familiar with this issue it should be noted that the current provisions of DOMA preclude accordance of federal benefits to those who have entered into a same sex relationship. This preclusion even overrides State prerogatives regarding marriage as, in an immigration context, the language of DOMA precludes recognition of even a same sex marriage solemnized and/or legalized in a sovereign American State. Currently, there is some legislation, such as the Uniting American Families Act (UAFA) or the Respect for Marriage Act, pending before the American Federal legislature which would seek to remove the current restrictions being imposed upon the LGBT community.

It remains to be seen whether same sex visa benefits will be accorded the same sex partners engaged in a bi-national relationship, but one thing is clear: there is momentum gathering behind the cause of LGBT equal rights as American authorities would seem to be taking notice of the legitimate grievances of those who have, for too long, been denied their rights to equal protection under the law. Meanwhile, this blogger finds it likely that there will eventually be some sort of decision regarding the accordance of Full Faith and Credit to those legal marriages solemnized and/or legalized by those States which currently license such unions. As of the time of this writing, however, such remedies remain to be seen and the assurances that they will manifest themselves sometime in the future is likely cold comfort to those who are separated from their loved ones now.

For related information please see: Full Faith and Credit Clause.

Tags: 1 U.S.C. § 7, 8 C.F.R. § 1003.1(h)(1)(i), AG Holder, Attorney General Eric Holder, BIA, Board of Immigration Appeals, Civil Union, Defense of Marriage Act, DOMA, Full Faith and Credit, Full Faith and Credit Clause, Immigration and Nationality Act, LGBT civil union, lgbt immigration, LGBT marriage, LGBT partner, lgbt visa, qualifying relative, removal, Respect for Marriage Act, Same Sex Marriage, same-sex partnership, Section 3 DOMA, uafa, Uniting American Families Act
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