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The Changing Face of Marriage and Families in Immigration Law

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By William Shwayri – law intern at Beach-Oswald Immigration Law Associates

Defense of Marriage ActLawmakers voted late Friday, June 24, 2011 to legalize same-sex marriage, making New York the largest state where gay and lesbian couples can wed, and giving the national gay-rights movement new momentum from the state where it was born. The same-sex marriage bill was approved on a 33 to 29 vote. The Senate galleries were so packed with supporters and opponents that the fire marshals closed them off.

In February of 2011, the Obama Administration decided it would not defend the constitutionality of the Defense of Marriage Act (“DOMA”).  DOMA, passed in 1996, which recognized marriage as a legal union between one man and one woman.  In a letter to Congress written in late February, Attorney General Holder noted that both he and President Obama believed that DOMA was unconstitutional and stated “The President and I have concluded that classifications based on sexual orientation should be subjected to a strict legal test to block unfair discrimination.”

The Obama’s Administration refusal to defend DOMA is already causing waves in the realm of immigration law. Most recently has been the case of Paul Dorman.  Dorman, an Irishman who entered the United States in 1996 overstayed his visa but entered in a civil union with a New Jersey man in 2009.  New Jersey is one of a handful of states that allows for civil unions between gay and lesbian couples.  Dorman attempted to stop his deportation by a cancellation of removal.  Cancellation of removal requires a qualifying United States or permanent resident relative and Dorman argued that his civil union with the New Jersey man met this criteria.  The Board of Immigration Appeals (“BIA”) ruled that Dorman should be deported because although he is in a civil union with an U.S. citizen, DOMA bars same-sex marriages.  Therefore, the BIA held Dorman did not have the necessary qualifying U.S. or permanent resident spouse for cancellation of removal.

Last month, Holder put a halt on the deportation, citing the potential unconstitutionality of DOMA, and a further determination if Dorman would be eligible to remain in the United States if DOMA did not exist.  In Matter of Dorman, Holder noted that a further examination was needed to determine if “whether absent the requirements of DOMA, respondent’s [Dorman] same sex-partnership or civil union would qualify him to be considered a spouse under the Immigration and Nationality Act.”

Although advocates of same-sex unions are hailing this as a victory, the implications of this decision remain to be seen.  The case has been sent for further proceedings to the BIA and Immigration Judge to answer Holder’s decision for more fact finding. A 6/6/11 letter from Juan P. Osuna, Director, EOIR, responding to a 4/6/11 letter from AILA and other organizations, stating that until the Defense of Marriage Act (DOMA) is repealed or struck down EOIR will continue to apply DOMA as interpreted in the immigration context.

This is not the first time courts have struggled to define what constitutes a proper relationship to halt a cancellation of removal.  Three decades ago in Palmer v. Reddy, controversy existed as to the eligibility of step-children to qualify for cancellation of removal.  Although decisions prior to 1980 required a step-child to be part of a “close family unit,” courts now look at this issue “without further qualification.”

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