Back in March, when the Obama administration announced that the Department of Justice (DOJ) would no longer defend the definition of marriage set forth by Section 3 of the Defense of Marriage Act (DOMA), several immigration offices responded by putting applications and petitions involving married, binational same-sex couples on hold until the issue was resolved. Normally, members of the LGBT community who are married to a foreign national would not be able to sponsor their partner for a green card and prevent his or her spouse from being deported. The immigrant rights and LGBT communities were crushed when in April the U.S. Citizenship and Immigration Services indicated that “the hold is over, so we’re back to adjudicating cases as we always have.”
Today, in what is being described as a “very rare decision,” DOJ Secretary Eric Holder announced that he has vacated — or essentially wiped out — a decision by the Board of Immigration Appeals in reference to a recent case in which the BIA applied DOMA’s Section 3. In his decision, Holder listed the criteria the BIA should consider:
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.
Attorney Eric Berndt of the National Asylum Partnership on Sexual Minorities at the National Immigrant Justice Center told Metro Weekly that Holder’s decision “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.
Queerty points out that Holder’s decision isn’t just significant because he is asking the BIA to stop and reconsider this specific deportation, he has chosen to vacate a decision involving a civil union rather than a marriage. “This is a huge huge huge deal for all the bi-national couples in states that do not have marriage,” notes the blog.
Coincidentally, Rep. Mike Honda (D-CA) reintroduced the Reuniting Families Act today, a bill that would eliminate discrimination in immigration law against LGBT citizens and their foreign born partners, amongst other things.