May 9, 2011
Back on February 23rd when Eric Holder announced that the Department of Justice would no longer defend the constitutionality of the Defense of Marriage Act (DoMA) he stated that the Administration would continue to enforce the law. Well, Holder has shown that to be not true in less than three months. On May 5th, the Attorney General issued an immigration decision (Matter of Paul Wilson DORMAN, 25 I&N Dec. 485 (A.G. 2011)) ordering the Board of Immigration Appeals, located in the Justice Department, to vacate a deportation order that was based on the immigrants not being married under DoMA. (The Irishman in question entered into a New Jersey civil union with another man in 2009, so he was never even married under New Jersey law.)
Here is the relevant text in which Holder contrives all sorts of additional questions for the Board some relating to DoMA which it must now answer:
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 respondents same-sex partnership or civil union qualifies him to be considered a spouse under New Jersey law; 2) whether, absent the requirements of DOMA, respondents 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 respondents 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.
Take a look at Ed Whelans commentary on this maneuver (NRO Bench Memos, May 9, 2011) here. The New York Times reports that an immigration judge in Newark, New Jersey, has already used the Holder action to suspend deportation proceedings against a Venezuelan. As the Times Julia Preston noted Holders action is an unusual signal this week from the Obama administration that it is exploring legal avenues for recognizing same-sex marriages in immigration cases.