From MetroWeekly: Attorney General Eric Holder today filed a very rare decision, vacating a decision by the Board of Immigration Appeals related to the application of Paul Wilson Dorman, in which the BIA applied Section 3 of the Defense of Marriage Act to a pending case.
Holder writes: Pursuant to my authority set forth in 8 C.F.R. § 1003.1(h)(1)(i), I order that the decision of the Board of Immigration Appeals (“Board”) in this case applying Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, be vacated, and that this matter be referred to me for review.
Attorney Lavi Soloway – a co-founder of Immigration Equality – has been one of the leading attorney-advocates on the issue of asking the government to exercise that discretion. Soloway tells Metro Weekly in an email, “This development could be a sign that the Obama administration is looking for a way to protect gay and lesbian bi-national couples who are currently barred from the regular marriage-based immigration process by the Defense of Marriage Act.
In Holder’s decision, he goes on to state four questions that he directs the BIA to consider:
1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law
2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act
3) what, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief
4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.