Startling New Development on Same-Sex Couples and US Immigration

Attorney General Eric Holder, Jr., has personally intervened in a pending immigration case in which a foreign national who is in a same-sex civil union with a U.S. citizen of the same sex is facing removal from the United States.  In Matter of Paul Wilson Dorman, 25 I&N Dec. 485 (A.G. 2011), announced today, May 5, the Attorney General stated:

"Pursuant to my authority set forth in 8 C.F.R. sec. 1003.1(h)(1)(i), I order that the decision of the Board of Immigration Appeals ("Board") in this case applying Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. sec. 7, be vacated, and that this matter be referred to me for review.

"In the exercise of my review authority under that regulation, and upon consideration of the record in this case, I direct that the order of the Board be vacated and that this matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent's same-sex partnership or civil union qualifies him to be considered a "spouse" under New Jersey law; 2) whether, absent the requirements of DOMA, respondent's same-sex partnership or civil union would qualify him to be considered a "spouse" under the Immigration and Nationality Act; 3) what, if any, impact the timing of respondent's civil union should have on his request for that discretionary relief; and 4) whether, if he had a "qualifying relative," the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal."

This is the first time that the Attorney General has intervened directly in a same-sex partner immigration case to direct the Board of Immigration Appeals to make specific factual findings concerning the relevance of DOMA and, possibly, theories under which DOMA's restrictions might be avoided to deal with the hardship created if committed same-sex binational couples cannot live together permanently in the United States.

Section 3 of DOMA provides:

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

A strict, literal interpretation of DOMA could be that it is only applicable to determining whether two people are married for purposes of federal law and whether one person can be the spouse of another person for purposes of federal law.  In this sense, it would seem that DOMA would be irrelevant to the question whether a federal agency can recognize a civil union or a domestic partnership (or even, perhaps a same-sex marriage) for purposes of determining some status other than marriage or spouse.

Is it possible that A.G. Holder is looking for a theory that would avoid the application of DOMA for committed same-sex couples?  Might it be argued that the BIA inappropriately applied DOMA in this case when the couple in question are not married and not claiming to be married, but are presenting a different status – civil union – for the consideration of Immigration authorities? 

Question (1) inquires about spousal status under New Jersey law.  DOMA defines the term "spouse" for purposes of federal law.  Traditionally, in determining spousal status for immigration purposes, the federal government has looked to state family law.  Perhaps there could be some argument that a NJ civil union partner is a "spouse" under NJ law and thus should be considered a spouse for purposes of federal immigration law.  I'm not sure this would work, since ultimately the question of qualifying for relief under federal law would, logically, ultimately be determined by reference to federal, not state law.   Many years ago, after a Colorado county clerk gave a marriage license to a binational same-sex couple, the immigration service refused to recognize the marriage and as upheld by the 9th Circuit Court of Appeals in a decision that — while noting the questionable status of that marriage under Colorado law — insisted that ultimately the question of marital status for immigration purposes is a question of federal law.  See Adams v. Howerton, 673 F.2d 1036 (9th Cir.), certiorari denied, 458 U.S. 1111 (1982).  Of course, one could take the position that Adams v. Howerton, a 1982 decision, has been thoroughly superseded by such US Supreme Court decisions as Romer v. Evans and Lawrence v. Texas. . .

Question (2) asks whether Dorman's same-sex civil union could theoretically qualify him to stay in the country due to his relationship with his same-sex partner in the absence of DOMA.  That is, could he be considered a "spouse" for purposes of federal law if DOMA's definition of "spouse" was not part of federal law?  I think the answer to this is possibly yes, since traditionally the federal government has not itself defined marital relationships, but has instead looked in the first instance to state law for such definitions, and if New Jersey treats civil union partners as spouses, in the absence of DOMA so should the federal immigration process.  On the other hand, as Adams v. Howerton held in 1982, ultimately the question of spousal status for immigration law is a federal question, and the issue would be whether federal immigration law is susceptible to a definition of spouse that includes same-sex couples if DOMA is out of the picture.  I would argue "yes," on equal protection grounds.

Question (3) asks about the timing of the creation of the civil union in relation to the request for discretionary relief under the statute.  I don't know what the timing was in this particular case.  It's my impression that timing of a marriage can make a significant difference in immigration cases, especially when the timing casts doubt on the legitimacy of the marriage.  A marriage contracted for purposes of staying in the country between parties who have no real intention of forming a family could be deemed a "sham" that would not privilege the foreign national spouse to recognition of their spousal status under the immigration law.  Presumably the same rules would apply to same-sex unions in the absence of DOMA.

Question (4) asks whether a party to a state civil union or domestic partnership might be eligible for relief on the basis of a "qualifying relative" in order to satisfy the "exceptional and unusual hardship requirement for cancellation of removal."  This would take some creativity, given the list of qualifying relatives on the forms currently used.  But possibly DOJ could adopt a definition of "qualifying relative" that would be broad enough to include committed same-sex partners who have taken the step of obtaining legal recognition of their relationship under state law.  This could avoid the need to deal with DOMA, since they would not be recognizing the relationship under the rubrics of "marriage" or "spouse," and they could reason that anybody whose relationship is legally recognized by a state should be considered a "relative."

So, I'm not sure where all this may be leading.  One possibility is that the Justice Department opines, in light of the answers to these questions, that the constitutionality of DOMA is inevitably implicated in the continued refusal to recognize same-sex civil unions, domestic partnerships, and marriages for immigration purposes, and that because they consider DOMA to be unconstitutional, they will no longer refer to it in determining whether to grant relief for same-sex couples in the immigration context.  I would refer specifically to the theory that the constitutional rights of the U.S. citizen or legal resident in the couple are specifically implicated.  That is, their right of intimate association under the Due Process Clause of the 5th Amendment is heavily burdened, since the failure to recognize their relationship as qualifying for immigration purposes deprives them of the right to live in the US with their life partner.  Thus, even if one makes the concession, for sake of argument, that the non-citizen does not have a constitutional right to remain permanently in the U.S., what about the right of his or her same-sex U.S. citizen partner?  (The South African Constitutional Court ruled on this basis that gay South Africans were entitled to obtain permanent residence status for their same-sex partners from other countries, in light of the South African Constitution's expansive individual rights protection, including the right to be free of discrimination based on sexual orientation.  Since Romer v. Evans (1996), gay people in the U.S. have had a legally-recognized right to equal protection of the laws, as a matter of constitutional interpretation…)

At any rate, Holder's action is a hopeful sign that the determination by DOJ earlier this year that Section 3 of DOMA is not constitutionally defensible may soon bear fruit in a substantive policy change by the Administration in the immigration field.  At this point it is merely making a pause in one case and posing some questions, but the questions contain seeds of potential legal arguments that are worth further exploration.