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BIA Puts Same-Sex Marriage Petitions On Hold

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By: Margarita Baldwin*

The Board of Immigration Appeals is leaning towards setting a precedent in Immigration law that would eventually allow or prevent immigrants from seeking adjustment of status based on same-sex marriage. Recently, three appeals and a motion to reopen were filed with the BIA on behalf of same-sex married couples that duly registered their relationships under state laws. In all four cases that originated in California, Florida, New York and Pennsylvania, the BIA remanded the record to the relevant District Director and Immigration judge for further proceedings. In the meantime the BIA refused to take a position on the constitutionality of DOMA due to lack of jurisdiction.

The facts of the cases are identical. The petitioners filed the I-130visa petitions on behalf of the same-sex spouses. Three marriages were concluded in the states that allow gay marriages, and in one instance, the couple got married in Ontario, Canada, and was subsequently granted domestic partnership (2004) and civil union status (2007) in the state of New Jersey.

As it could be expected, the petitions were denied based on the section3 (a) of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2149(1996) (DOMA).District Directors (in denials) and DHS (in the opposition to the motion to reopen) argued that the marriages and one civil union between the petitioners and beneficiaries were not valid relationships for the purposes of Federal law pursuant to the section 3 (a) of DOMA. The petitioners filed a motion to reopen and appeals with the BIA. The BIA agreed and remanded the records for further proceedings ordering the parties to address the following issues:

1) Whether the petitioner and the beneficiary have a valid marriage under the state laws; and

2) Whether, absent the requirement of section 3 of DOMA, the marriage of the petitioner and the beneficiary would qualify the beneficiary to be considered a “spouse” under the Immigration and Nationality Act.

Clearly, those remands are uncommon. They are an effort by the BIA indicating responsiveness to the current society demands and changes. Hopefully, they can grow into a landmark decision granting relief to deserving individuals.

*Margarita Baldwin is a legal intern at Beach-Oswald Immigration Law Associates, P.C.
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