With the news this morning that the Defense of Marriage Act (“DOMA”) has been found unconstitutional, it immediately raises the question of how the Board’s precedents interpreting DOMA will be affected. It seems the most obvious initial conclusion is that a valid marriage under a state’s laws must be valid for Immigration purposes. Given this conclusion, same-sex couples should be able to apply for immigration benefits and protection from removal in immigration court proceedings, including cancellation of removal, certain waivers of inadmissibility and removability, as well as family-based visas.
The most recent pronouncement on DOMA came from the Attorney General himself in Matter of Dorman in 2012, which reversed the BIA’s application of DOMA and ordered the Board make new findings on whehther a New Jersey “civil union” could be a marriage and whether he would be considered a “spouse … absent the requirements of DOMA.”
Previous rulings by the BIA on visa issues had firmly held that DOMA prevented same-sex couples from applying for visa benefits. In Matter of Lopez-Barragan, an unpublished case, the Board said that “[t]here is no question that, for purposes of Federal law, a valid marriage can only be one between a man and a woman. Marriages between same-sex couples are clearly excluded by the DOMA.”
The Board now must revisit this case law, and in our view has no choice but to reverse these prior positions.
Updated at 10:51 AM: