Holder set aside the Board of Immigration Appeals ruling allowing the deportation of Paul Wilson Dorman, a gay man illegally in the U.S. Dorman wants to stay in the country with his male partner, with whom he celebrated a civil union in New Jersey.
The Board of Immigration Appeals judges had ruled against Dorman on the basis of the Defense of Marriage Act, which defines marriage as between a man and a woman.
Holder asked the judges to reconsider the case and determine whether Dorman can be considered a spouse under New Jersey law and whether he would be a spouse under immigration law were it not for the Defense of Marriage Act, according to a copy of Holder’s decision.
The Obama administration in February said it would no longer defend the Defense of Marriage Act in court.
Dorman and his partner were taking the immigration board’s ruling to a federal appeals court on the grounds that the decision was based on the Defense of Marriage Act.
Holder wanted the immigration judges to reconsider the case before the federal appeals court takes up the gay couple’s constitutional challenge, said Justice Department spokeswoman Tracy Schmaler.
People who are facing deportation can ask immigration judges let them stay in the U.S.
To qualify for a "cancellation of removal," a person must have been in the U.S. 10 years and have a qualifying relative, such as an American citizen spouse or children. The person also must show good moral character and that the deportation will cause "exceptional and unusual hardship" to the qualifying relative.
Lavi Soloway, a New York immigration attorney and founder of Immigration Equality, a group that advocates for the immigration rights of gay couples, said he considers Holder’s decision good news for gay people. Gay couples are barred from sponsoring their partners for immigration visas and denied other immigration benefits provided heterosexual couples.
"This is the right path. Until Congress can pass legislation to remedy this, the executive branch can and should act," Soloway said.