The Board of Immigration Appeals has rejected the U.S. Citizenship and Immigration Services' denial of four green cards for married gay and lesbian binational couples.
The rejection means that the USCIS must complete a full fact-finding investigation to determine whether the foreign spouses qualify for a green card under the Immigration & Nationality Act.
"The BIA is essentially forcing the immigration service to undertake full adjudication and to produce a complete fact-finding for each couple to determine the bona fides of the marriage, rather than simply deny them perfunctorily because they're gay or lesbian couples," Lavi Soloway of Stop the Deportations told Metro Weekly. Soloway is the the attorney for all four couples.
Binational same sex couples are not entitled to the same immigration rights as opposite sex couples because of DOMA, which prohibits the federal government from recognizing same sex marriages. The law is currently facing a number of legal challenges, which are expected to eventually be considered by the U.S. Supreme Court.
"Once U.S. [Citizenship and Immigration Services, which is within the Department of Homeland Security] has done all that fact-finding, they're essentially setting the stage for being able to approve the petitions in a post-DOMA universe. They're providing everything that one would need to know to approve those petitions if the Defense of Marriage Act did not exist ... and that's not typically the role of the Board of Immigration Appeals."
Immigration Equality estimates that there are over 35,000 such couples in the United States and that, between them, they are raising 25,000 children.
The Obama administration has declined to defend DOMA, but the U.S. government is still defending the law thanks to Republicans in Congress.
After Obama directed the Department of Justice to no longer the law, the House Bipartisan Legal Advisory Group (BLAG) voted along party lines to direct the House General Counsel to appointed an attorney to represent the government in the case. The five-member advisory group has the authority to instruct the non-partisan office of the House General Counsel to take legal action on behalf of the House.
With prior reporting by Megan Carpentier