Tag Archives: gay marriage

Board of Immigration Appeals Affirms Same-Sex Marriage

20 Jul

Earlier this week, the Board of Immigration Appeals affirmed the sweeping-change in immigration law that the Windsor decision ushered in.  In Matter of Zeleniak, 26 I.&N. Dec. 158 (BIA 2013), the Board recognized that Section 3 of the Defense of Marriage Act (DOMA), found unconstitutional by the Supreme Court in Windsor, was not an impediment to recognition of same-sex marriage by immigration authorities.   In Zeleniak, U.S. citizen Serge Polajenko filed an immigrant partner for his husband, Oleg Zeleniak.  The Citizenship & Immigration Service (CIS) found that the couple had a legal marriage in Vermont, but denied the petition, citing Section 3 of the DOMA.   On July 17, 2013, the BIA sent the case back to the CIS stating that the CIS should only consider whether the marriage was entered into in good faith.  Thus, the BIA affirmed that Section 3 of DOMA, as a result of Windsor, was no longer an impediment to approval of a petition by U.S. citizen on behalf of his same sex husband, so long as the couple was married in a state where same-sex marriage is legal.

The BIA went further than the immediate issue at hand and sought to identify those areas of immigration law that are impacted by the Windsor decision.  The BIA stated:

The Supreme Court’s ruling in Windsor has therefore removed section 3 of the DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated. This ruling is applicable to various provisions of the Act, including, but not limited to, sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status), 8 U.S.C. §§ 1101(a)(15)(K), 1153, 1154, 1157, 1158, 1182, 1227, 1229b, and 1255 (2012).
Ironically, the BIA’s decision appeared the same day that former Attorney General Alberto Gonzales resurfaced from ignominy to publish a wholly unnecessary and surly opinion in the New York Times stating that Windsor did not compel immigration recognition of same-sex marriages.  Relying on 1982 decision of the 9th Circuit Court of Appeals, the former Attorney General stated that Congress did not intend to cover same-sex spouses when it used the term “spouse” in the 1952 Immigration & Nationality Act (INA).  As a lawyer who has tried to cite 9th Circuit laws in other parts of the country, I am well aware of the limited reach of a decision of a single appeals court.  You would think that the former Attorney General would be as well.  It is important to keep Mr. Gonzales’ point-of-view in mind, however.  Under our system, the Attorney General has the authority to overrule the BIA on any matter of immigration law. Which is why it is important that Mr. Gonzales, thankfully, no longer occupies that post.

Equality Under Immigration Laws Being Implemented and Realized

1 Jul

Popov-Marsh

The Supreme Court rocked the world last week by declaring Section III of the Defense of Marriage Act (DOMA) unconstitutional on equal protection grounds.  Section III forbade the federal government from recognizing same-sex marriages.  Thus, a legal same-sex marriage entered into in New York was valid under NY law, but did not provide the married couple with any federal benefits.  Activists have identified over 1100 ways that federal law provides a benefit to a married couple, all of which were unavailable until Wednesday, June 26, when Section III of DOMA was officially bid adieu.  Among the benefits now available to couples in same-sex marriages are a multiplicity of immigration benefits.  Of paramount importance in these benefits is the right of a United States citizen to sponsor her foreign spouse for residence.

Things have moved awfully fast since last Wednesday.   Shortly after the decision was announced, the White House stated, “I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”  The same day, Janet Napolitano, Secretary of Homeland Security who oversees immigration matters for the U.S., stated, “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”  On Thursday, US CIS Director Alejandro Mayorkas was ready at the American Immigration Lawyers Association conference when he was asked about DOMA.  Director Mayorkas informed the audience that the CIS has maintained a list of all denied same sex marriage cases since the Administration stopped defending DOMA in the courts in February 2011 and that CIS was “prepared to act,” in implementing the law.  By Friday, the first same sex marriage petition was approved by the U.S. CIS.  That is the happy couple above in matching shirts and beards.  Also, on Friday, outstanding immigration lawyer Matt Kolken was notified by CIS Director Mayorkas that the agency would no longer fight a denied same-sex petition on appeal by one of Matt’s clients.

Windsor

Then, over the weekend, it was PrSFide, and lots of joy occurred.  Edie Windsor, whose fight with the IRS over taxes on her deceased wife’s estate was the knockout punch for DOMA, served as the Grand Marshal of the NYC Pride parade and BR lawyers in San Francisco got into the spirit as well.

And, just today, Monday July 1, 2013, Secretary Napolitano issued the following statement: “After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.  To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” The DHS also published two questions and answers.  First, the Department announced that individuals in legal same-sex marriages may file I-130 immigrant petitions on behalf of their foreign spouses and that those petitions would be handled identically to the opposite-sex petitions that CIS has long adjudicated.  In other words, gay married couples will have to demonstrate that they are legally married (no other marriages, marriage performed in a state that recognizes gay marriage) and that they are engaged in a bona fide marriage.  A bona fide marriage may be demonstrated by a shared residence, joined bank accounts, credit cards and insurance, knowledge of the other spouse, photos and other objective evidence.  Second, the CIS clarified that what is important for CIS’ recognition of a same-sex marriage is the law of the place where the marriage was performed and not where the petitioner and beneficiary live.  This means that a couple married in California (that’s right California now has gay marriage thanks to the other Supreme Court case that day on Prop 8), but living in, oh, let’s say our favorite whipping boy among the states of the union, Arizona, can have their marriage recognized by the federal government in immigration matters even though Arizona does not recognize it.  With extremely limited exceptions, the law of the state where the marriage took place is the law that matters for CIS recognition.  While questions remain about the implementation, we congratulate the Department on moving quickly to receive and approve same-sex marriage-based petitions.

The law has, once again caught up to the culture.  In law school, we read Bowers v. Hardwick, which upheld the right of a state to selectively prosecute homosexuals under state sodomy laws.  Now, less than thirty years after the shameful Bowers decision, (which was itself obliterated by the Supreme Court in Lawrence v. Texas by the pen of the same Anthony Kennedy who played hangman to DOMA), the Supreme Court has taken an enormous leap into helping this country realize its rhetoric of individual freedom and equal justice.

CIS is now accepting and approving marriage petitions by same-sex couples and it took less than a week.