BIA recognizes same-sex marriages for immigration purposes

The Board of Immigration Appeals (BIA) in Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA July 17, 2013) held that in light of the U.S. Supreme Court’s decision in U.S. v. Windsor, 133 S. Ct. 2675 (2013), Section 3 of the Defense of Marriage Act (DOMA) is no longer an impediment to the recognition of lawful same-sex marriages and the recognition of spouses under the INA if the marriage is valid under the laws of the state where it was celebrated.

The U.S. citizen petitioner, Oleg B. Zeleniak, filed an I-130, Petition for Alien Relative, on behalf of the beneficiary, Serge V. Polajenko, as his (male) spouse on March 10, 2010. USCIS denied the petition on July 27, 2010, and the petitioner appealed the denial to the Board. In its first decision, dated April 18, 2012, the Board remanded the record to the Director with instructions to address two issues: whether the petitioner’s marriage is valid under the applicable state (Vermont) law and whether the marriage would qualifies under the INA absent the requirement of DOMA § 3. On remand, the Director determined that the marriage was valid under Vermont law but declined to consider the issue whether the beneficiary would be a spouse under the INA absent the requirements of DOMA § 3 (the controlling federal statute). Hence the Director once more denied the visa petition. The petitioner once again appealed to the Board.

In its most recent decision, the Board sustained the petitioner’s appeal and again and remanded the record to the Director for further consideration of the sole remaining issue which was whether the petitioner had established that his marriage to the beneficiary was bona fide. 

The Board explained that the Windsor decision removed DOMA § 3 as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the state where it was celebrated and the Court’s decision is applicable to various provisions of the INA, including, but not limited to fiancé and fiancée visas, immigrant visa petitions, refugee and asylee derivative status, inadmissibility and waivers of inadmissibility, removability and waivers of removability, and cancellation of removal. The Board further observed that the issue of the validity of a marriage under state law is generally governed by the law of the place of celebration of the marriage. 

Cancellation of Removal of Non-LPR (Non Lawful Permanent Residents) and Abused Immigrants

Glickman Turley LLP attorneys recently won two applications for cancellation of removal of non-LPR residents pursuant to INA Sec. 240A(b).

In one case, our attorneys demonstrated that our client’s young U.S. citizen children would suffer “exceptional and extremely unusual” hardship if their father were deported back to his native Portugal. The client’s sons were pre-school children who suffered medical issues at birth that continued throughout their lives. The children currently suffered from asthma and learning disabilities.

In another recent case, our attorneys represented a woman who had suffered decades of abuse at the hands of her father. Because he was a U.S. citizen, she qualified for special-rule cancellation, which provides green cards to victims of domestic violence from U.S. citizen and LPR spouses, parents and children. The applicant needs to have lived in the U.S. for three years.

Special-rule cancellation of removal provides relief to abused immigrants in ways not available through affirmative VAWA self-petitions to USCIS. In cases of special-rule cancellation for children of abusive LPR parents, cancellation immediately grants LPR status, as compared to VAWA self-petitions that require the LPR children to wait for green cards pursuant to LPR children priority-date waitlists.

In cases of special-rule cancellation of removal for abused spouses, the applicant’s marriage to the abuser could have ended more than two years prior to the application for relief. This is an important distinction from VAWA self-petitions where the self-petition must be filed within two years of the divorce.

If you are an immigrant in deporation / removal proceedings, our attorneys can review your record and help you understand whether you are eligible for any relief including cancellation of removal.

Glickman Turley's experienced attorneys represent individuals on a wide range of immigration matters, as well as other legal issues. Please contact our attorneys if you wish to discuss representation on immigration matters, real estate purchase and sales, condominium associations, criminal defense, non-profit law, civil litigation, business litigation, business law, probate matters including wills, powers of attorney, health care proxy, same-sex parent adoptions, guardianships, animal law, or LGBT legal matters.