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.
