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Matthew Kolken on Deportation And Removal

Attorney General Stops Deportation of Gay Partner in Same-Sex Civil Union

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Today, 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:

  1.  whether a same-sex partnership or civil union qualifies an individual to be considered a "spouse" under New Jersey law;

  2. 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; 

  3. what, if any, impact the timing of an alien's civil union should have on a request for discretionary relief from deportation; and

  4. 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 noncitizens 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.

Happy Cinco de Mayo!

See Matter of Paul Wilson DORMAN, 25 I&N Dec. 485 (A.G. 2011)

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  1. Rayssa's Avatar
    7/4 I agree with your idea of how people tend to just reugrgitate a lot of information they hear and form their opinions on often time, misguided facts. I'm not trying to excuse them, but it is sometimes hard to get all the facts, when you have so many sources of information (especially with the internet nowadays) that can all be wrong. Like Sam I don't think that we can just open our borders to everyone all the time, things just wouldn't work if we did that, but I definitely see the emphasis on immigration from Latin and Central American countries than from anywhere else. And yes, immigrants are what this country was composed of and its interesting how we are now making laws to keep out other immigrants. I do agree that there is a lot of discrimination in immigration laws and a lot of these laws tend to stem from fear of the "other. As soon as something starts going wrong, American's need a scapegoat, and immigrants are the easiest target to turn against. Because its easy to forget all the contributions they have made to this country and easier to see them as the problem.
  2. Mainu's Avatar
    Why can more illegal aielns be caught and removed from more of our employments, this would help America dearly, it sickens me so much because i was so force to work with illegal alien galore, in a state governor employment Sept. 2001! doing the 911 era! at one of the great California university in their custodial dept. and just watching the whole ordeal being just totally ignored! just sicken me more, I had just observe their employment slot being reserve from them, It bother me much more when my son was turn down, at the same time they hired the illegal aielns, they were hired directly from a contractor, this contractor had always hired illegal aielns, his employees were majority illegal aielns! they had no investigation, background checks, not like Americans were required to! So many of them just being allow to work with false social security numbers, false names! Also since none of them investigated or had any kind of background checks, there were some underage illegal alien youth hired also, their ages were between 13, 14,15,16, and 17! Because all of this was so ignored, these youth were allow to become their rightful adult ages, and many of the illegal were allow to work at lease 10 years, many of them may still be there! and they all reap all the good benefits! Just knowing that underage illegal alien youth was working in this employment and perhaps other American employment, i felt it was so unfair, just to know that our American underage youth are required to have a youth work permit, with some limitations of work hours at those ages! Now America is stooping so low to allow illegal immigration to have their way, so much until all our immigration laws and other laws tend to be blocked! Just to allow them to scheme and scam our American system all the more! Because of the massive illegal immigration in America, there are no real security, Americans are not safe in their own country! regardless of what our president and congress may say!!!!The most ridiculous thing about this, was when the Union and the student organization MechA! on this University campus in California, decided to push the employers of the custodial department to just ignore all the illegal aielns false documents, all of their false social security numbers, false identities , ask them to not fired all the illegal alien employers, just wanted this university to ignore all the lies of the already hired illegal aielns because this way they can stop being afraid of being caught and deported! It wasn't in those exacted words, but, it meant the same! How they were allow to get away with this, I don't know! No one were allow to ask question about all the hired illegal aielns! just one time when ask, a couple of HR employees did say that it was not their doing, that the hiring was the doing of the chancellor! How does this make it right??? Some how when any one did report all the illegal aielns being in this employment it was always ignored!!!Sure there was an illegal alien fired from this same employment in 2003, they claim that she had used a false name, false social security numbers, false document period! What seize to amaze me, was how all the other illegal alien who were hiding in their employment were save from being fired, at the same time while this one illegal alien was being fired!!! This very same employer have the E-Verify, they found away to not use it on their already hire illegal aielns, to me this defeats the purpose of having the E-Verify in their employment, it should be use for new employees and old employees, this way employers know whom are working in their employment illegally! It is a dreadful shame that our own American employer tend to be so underhanded, just hiring millions of illegal aielns in their employment, while millions of their own Americans are unemployed!! Many American employers need to be force to let all their illegal alien employees go, and they should be force to give their employment to Americans! They also should be penalized for hiring illegal aielns!
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