The fallout from the Feb. 23 announcement by Attorney General Eric Holder that the Justice Department will no longer defend Section 3 of the Defense of Marriage Act – the federal definition of marriage – has quickly moved from questions about existing DOMA challenges to questions about how the new DOJ interpretation could impact immigration law.
On Feb. 25, attorney Lavi Soloway announced that he was filing multiple requests on behalf of married, same-sex bi-national couples where one spouse is facing deportation.
A day earlier, on Feb. 24, Soloway began the process in a case before the Board of Immigration Appeals (BIA) in which Joshua Vandiver is seeking to sponsor his husband, Henry A. Velandia Ferreira, for immigration purposes. Velandia had come to the U.S. from Venezuela on a work visa, which has since expired....
As soon as Wednesday, March 9, another couple – Edwin Echegoyen and Rodrigo Martinez – face separation, as Martinez is due to surrender in Baltimore for deportation to El Salvador on that day.
On March 7, Soloway filed a Motion for Emergency Stay of Removal, which would prevent Martinez's deportation, and a Motion to Reopen Proceedings and evidence of the marriage, which could lead to the consideration of whether DOMA should continue to prevent Echegoyen from being able to sponsor Martinez, with the relevant officials....
In the notice of appeal sent in Vandiver and Velandia's case to the BIA on Feb. 24, Soloway argued that – in light of the DOJ decision about DOMA – Vandiver's request should not be denied on account of DOMA.
''Although the [Immigration] Service Center invoked Section 3 of The Defense of Marriage Act (DOMA) to deny [Vandiver]'s 1-130 Petition for Alien Relative notwithstanding [Vandiver]'s submission of evidence of a bona fide marriage, the Service Center's reliance on DOMA is inappropriate,'' he wrote.
Referring to the Feb. 23 letter from Holder describing the administration's conclusion that Section 3 of DOMA is unconstitutional, Soloway argued, ''Because the Attorney General has declared invalid the basis upon which the Service denied [Vandiver]'s Petition, there is no longer any constitutional basis to deny the Petition where, as here, the Petition is grounded in a marriage that is valid under state law.''
Explaining the process, Soloway explained that unlike ordinary federal courts, ''The Immigration Court and Board of Immigration Appeals are a part of the Department of Justice. It's an executive branch sub-agency. It's not part of the federal judiciary.'' Soloway added, ''The Board of Immigration Appeals takes on appeals of decisions of those immigration judges or the Immigration Service [which is itself a part of the Department of Homeland Security].''
In explaining the relevance of Holder's decision, Soloway noted, ''The person who is the head of the agency just said he thinks it's unconstitutional.'' Of the policy route, Soloway noted, ''The place for policy to be developed for the BIA is at the DOJ."...
for more from Nan visit Hunter for Justice.