In US, Attorney General issues "groundbreaking" stop on removal of gay-married 'alien'

Dozens rally  6 May outside of the Newark, NJ Federal Court House before Henry Velandia's deportation hearing. Two hours later the judge ordered an adjournment on the case www.allout.org/tornapart

By Matthew Kolken

5 May, 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).

General Holder has specifically ordered the BIA to determine:

•  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.

Although this is a groundbreaking decision, it should be pointed out that the Board of Immigration Appeals generally does not rule on constitutional issues and questions of law, and must apply the existing law of the land at the time of the review.  It would have been much more comforting to see the Attorney General render a decision that specifically states that non-citizens in same-sex civil unions with United States citizens are considered a "spouse" for immigration purposes, and are fully entitled to obtain immigration benefits as a result of such union.

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.

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Related articles

• Attorney General Eric Holder Vacates Henry's Deportation Order (lezgetreal.com)