Department Of Justice’s Immigration Office Operating In A Post-DOMA World

The Department of Justice’s Board of Immigration Appeals (BIA) has been laying the groundwork for granting marriage-based green cards to binational queer couples, should the Supreme Court declare the Defense of Marriage Act unconstitutional, reports Metro Weekly’s Chris Geidner.

Four cases currently under review—all involving same-sex pairs married in states or provinces where marriage equality exists—have been delayed, with a directive to investigate whether the couples in question would be eligible for residency save for DOMA.

Attorney Lavi Soloway, who represents all four couples, tells Geidner the tactic is “historic” and indicates the DOJ is working on the principle that “there may very well be, a year from now, a post-DOMA world.”

The decisions by the BIA in four cases reviewed by Metro Weekly, three of which involve visa requests and one of which involves a request to reopen an immigration case in removal proceedings, require similar follow-up action and use almost identical language despite appearing to have been signed by three different BIA members on behalf of the board.

More than a year ago, on May 5, 2011, Attorney General Eric Holder intervened in a BIA case, vacating a decision by the BIA related to the application of Paul Wilson Dorman in which the BIA had applied Section 3 of DOMA to his case to deny his petition. Dornan was in a civil union with his partner, and Holder, among other questions, had asked the BIA to resolve “whether [Dorman]’s same-sex partnership or civil union qualifies him to be considered a ‘spouse’ under New Jersey law” and “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.”

In the four cases reviewed by Metro Weekly, all of which are being litigated by Masliah & Soloway, PC, the BIA appears to have taken Holder’s questions, begun applying them to all cases appealed to the board that involve DOMA-based denials and gone a step further to confirm whether the marriages themselves are valid.

As Soloway, founder of Stop the Deportations, explains it, the Board is requiring immigration services to go through extra steps to verify these couple’s marriages even though, under current DOMA law, they could deny the requests out of hand because they come from same-sex couples.  “They’re providing everything that one would need to know to approve those petitions if the Defense of Marriage Act did not exist,” he says, “and that’s not typically the role of the Board of Immigration Appeals.”

Thanks guys—We’re not used to government bureaus going the extra mile on our behalf. You ever been to the DMV?

 Photo: Stop the Deportations