Attorney General Holder Halts Deportation

Jim Burroway

May 5th, 2011

Attorney General Eric Holder today has taken the extraordinarily rare step of vacating a decision by the Board of Immigration Appeals, a step which could affect a host of same-sex bi-national couples.

The Board of Immigration had ruled that Paul Wilson Dorman, a citizen of Ireland, was to be departed. Dorman had entered into a New Jersey civil union with an American partner. Under the Defense of Marriage Act, the Board of Immigration Appeals determined that Dorman’s partner was ineligible to sponsor Dorman for a Green Card. Holder ordered that the Appeals Board’s applying of DOMA to the case be vacated and be referred to the Attorney General for further review.

In a filing dated April 26 (PDF: 8KB/1 page), Holder directed the BIA to answer four questions:

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.

What appears to make this particularly interesting is that this case involves a couple who have a civil union, and not a marriage contracted on one of the states which permits same-sex marriage. It is unclear at this time how this decision will impact the case of Josh Vandiver of Colorado and Henry Velandia of Venezuela. They were married in Connecticut and live in New Jersey, where Velandia is to appear before an Immigration board tomorrow for a deportation hearing.

Lavi Soloway, co-founder of Stop the Deportations and Immigration Equality, said, “This development could be a sign that the Obama administration is looking for a way to protect gay and lesbian binational couples who are currently barred from the regular marriage-based immigration process by the Defense of Marriage Act.” Solder is defending both Dorman’s and Velandia’s cases before the BIA in New Jersey.

In February, Holder announced that the Justice Department determined that DOMA could only be defended under heightened scrutiny, and that the Justice Department couldn’t defend DOMA’s constitutionality under that criteria. In March, the Justice Department advised the U.S. Citizens and Immigration Service that it should continue to enforce DOMA in processing applications for same-sex couples. This decision appears to be a remarkable reversal of that guidance.

Timothy Kincaid

May 6th, 2011

This is fascinating.

Holder is raising an issue that is quite separate to the obvious one. Yes, there is the question as to whether this is fair treatment, but the bigger question is this:

Do civil unions have federal rights?

I feel for this couple. I know that the threat of deportation is causing anguish.

But it would be a better decision for our community if the Board responded by saying that New Jersey’s civil unions do NOT qualify him to be considered a “spouse” under the Immigration and Nationality Act.

Our legal battle against Proposition 8 would be greatly strengthened by yet more evidence of the inequality of the Separate But Equal status of civil unions. I don’t think that we would be well served by a scheme that gives spousal benefits to civil unions, but not to legally married same-sex spouses.

allison munn

May 6th, 2011

let him stay no one has said what he has given up to stay in your country. No one has said what he has put into your econmy no one has said that he did not live of the country so get over it and let him stay put.

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