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Posted On: June 27, 2012

The Board of Immigration Appeals Refuses to Agree with CIS Decisions Denying Green Cards to Gay Partners who were Legally Married in their States, Despite the Federal Defense of Marriage Act

In June 2012, in four separate cases of CIS decisions in states where gay marriage was considered legal under state law, the BIA ordered the USCIS to complete full fact-finding to determine whether the marriages are legally valid and whether the spouse would qualify for a green card under the Immigration & Nationality Act if the Defense of Marriage Act did not exist.  In one case, the ruling re-opened removal proceedings for the spouse of a gay American who had an outstanding deportation order.  The Board of Immigration Appeals has never before re-opened removal proceedings or remanded green card petitions back to USCIS after denials based solely on DOMA Section 3. Currently, the Defense of Marriage Act serves as CIS’s basis for refusing to grant green cards to gay spouses of US citizens because DOMA defines marriage as between heterosexuals only for purposes of federal benefits. DOMA has not been overturned by the US Supreme Court to date

The BIA’s recent movement on this issue is a great sign but it’s still not clear yet if future cases based on case marriage will succeed while DOMA is still valid law.

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James June 28, 2012 at 10:00 pm

I hope that justice will prevail for myself and all those LGBT Americans in a relationship with a foreign-born partner. We hope the US Supreme Court takes up any of the numerous cases, e.g. the 1st Circuit Court of Appeals’ ruling in Gill vs. OPM, and we finally win the right to Federal benefits bestowed upon those legally married same-sex couples.

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