Today, Attorney General Eric Holder has vacated a deportation order of an individual that is in a same-sex civil union with a United States citizen. General Holder has specifically ordered the case to be remanded to the Board of Immigration Appeals (BIA) for the purpose of determining the constitutionality of the Defense of Marriage Act (DOMA), as it relates to obtaining benefits under the Immigration and Nationality Act (INA).
- whether a same-sex partnership or civil union qualifies an individual to be considered a “spouse” under New Jersey law;
- whether absent the requirements of DOMA, a same-sex partnership or civil union would otherwise qualify an individual to be considered a “spouse” for immigration purposes;
- what, if any, impact the timing of an alien's civil union should have on a request for discretionary relief from deportation; and
- whether a non-citizen that is in a same-sex partnership or civil union with a United States citizen has a “qualifying relative” for immigration purposes in order to satisfy the exceptional and unusual hardship requirement for cancellation of removal.
In basic terms, the Attorney General punted on the issue.That being said I am cautiously optimistic that we may have just seen the very first step in the long journey towards the provision of immigration benefits for same sex civil unions.
Happy Cinco de Mayo!
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).