ATTORNEY GENERAL ISSUES RULING ON GAY MARRIAGE IN IMMIGRATION CASES
May 5, 2011 § Leave a comment
In Matter of Dorman, Attorney General Holder today vacated a decision of the Board of Immigration Appeals and sent it back to the Board to make findings as to the immigrant’s eligibility for 10 year cancellation of removal.
The cancellation waiver, if granted, confers a green card upon the immigrant who otherwise faces deportation. The immigrant must show that (1) he has lived in the US for 10 years between entry and service of papers to start the hearing, as well as (2) good moral character [i.e., no criminal or other violations of law] and (3) the toughest part: that removal would result in “exceptional and extremely unusual hardship” to the alien’s qualifying relative – defined as spouse, parent, or child who is a US citizen or legal permanent resident.
The key here is the word “spouse.”
Now the AG has instructed the Board to make findings as may be necessary to determine whether and how the constitutionality of the Defense of Marriage Act is presented in the Dorman case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under NJ 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 Act; 3) what, if any, impact the timing of respondent’s civil union should have on his request for cancellation; and 4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement.