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. 

Administrative Appeals Office gives some consideration to "extreme hardship" faced by applicant's domestic partner of 17 years

In a recent decision, the Administrative Appeals Office sustained an appeal of a waiver application of a Mexican man who presented false documents to enter the country in 1993.  In order to obtain a waiver of inadmissibility under 212(i), an applicant has to show that the bar to admission imposes "extreme hardship" on a qualifying relative, which in the case of fraud can only be a parent or spouse of the applicant.  

Even though the applicant had a domestic partner of 17 years, the court's primary focus was on the hardship to his mother.  However, the applicant's counsel did present evidence that the domestic partner would suffer emotional and physical hardship. The court explained, "The AAO may give some consideration to the applicant's relationship as a family tie to the United States.  In this case, however, impacts to the applicant may not be considered except for the indirect impacts they have on qualifying relatives, in this case, the applicant's mother.  The AAO finds it reasonable to accept that the applicant's mother views her son's relationship with his domestic partner as a marriage, and it finds it equally reasonable to expect that she would experience an emotional impact due to her son being separated from his partner."  

Hopefully, immigration reform and/or or a decision by the Supreme Court will finally address these kinds of disparities in the treatment of heterosexual and homosexual couples.