Attorney General Eric Holder Exercises Review Authority in Defense of Marriage Act Case

Eric Holder vacated the BIA’s order and remanded the matter to the BIA to determine whether and how the constitutionality of the Defense of Marriage Act impacts respondent’s eligibility for cancellation of removal, see Matter of Dorman.

DOJ Secretary Eric Holder announced that he has vacated — or essentially wiped out — a decision by the Board of Immigration Appeals in reference to a recent case in which the BIA applied DOMA’s Section 3. In his decision, Holder listed the criteria the BIA should 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; and
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.

Attorney Eric Berndt of the National Asylum Partnership on Sexual Minorities at the National Immigrant Justice Center told Metro Weekly that Holder’s decision “adds some heft to our requests for prosecutorial discretion in individual cases in which the foreign partner” of a same-sex bi-national couple is seeking a green card because of his or her citizen same-sex partner.

Holder’s decision isn’t just significant because he is asking the BIA to stop and reconsider this specific deportation, he has chosen to vacate a decision involving a civil union rather than a marriage.