Defense of Marriage Act (DOMA)
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Immigration For The Gay Community

  • If you had a case where the I-130 has been denied due to same sex marriage under the Defense of Marriage Act (DOMA), we may now file in federal court to challenge the denial as unconstitutional
  • Same-sex married couples who have received attention this year, particularly after the Department of Justice’s Feb. 23 2011 decision that the Defense of Marriage Act — which has prevented the Department of Homeland Security from considering green card applications based on marriage for those couples – is unconstitutional and will no longer be defended by DOJ in court
  • Lesbian and gay noncitizens face serious impediments to obtaining legal immigration status through marriage. The Board of Immigration Appeals (BIA or Board) relies on Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, which defines marriage as a union between one man and one woman, in determining whether a marriage is valid for immigration purposes. See Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005). Pursuant to 8 C.F.R. § 103.37(g), all officers of the Department of Homeland Security as well as immigration judges are bound by Board decisions and decisions of the Attorney General. Accordingly, the immigration agencies bar lesbian and gay U.S. citizens and permanent residents from successfully petitioning for their spouses. Similarly, noncitizens are precluded from obtaining other immigration benefits or relief from removal – such as a waiver or cancellation of removal – based on a marriage involving a gay or lesbian couple
  • The New York Times reported previously, “Federal officials…canceled the deportation of a Venezuelan man in New Jersey who is married to an American man.”
  • Ways in Which DOMA affects Immigration benefits: There are a number of immigration benefits and forms of relief from removal that depend on the existence of a valid marriage. Thus, the validity of a marriage can be an issue in an affirmative application for an immigration benefit filed with U.S. Citizenship and Immigration Services (USCIS) or in an application for relief from removal filed with an immigration judge (IJ). The following are examples of situations where section 3 of DOMA may be implicated.
  • Adjustment of status based on a family-based visa petition
    • Adjustment of status based on being a derivative of a beneficiary of a visa petition (family-based or employment-based)
    • Cancellation of removal requiring a qualifying relative
    • Waivers that require a qualifying relative (such as § 212(h) and § 212(i))
    • Derivative beneficiary of an asylum application
    • VAWA
    • NACARA

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