Earlier this week, the Board of Immigration Appeals affirmed the sweeping-change in immigration law that the Windsor decision ushered in. In Matter of Zeleniak, 26 I.&N. Dec. 158 (BIA 2013), the Board recognized that Section 3 of the Defense of Marriage Act (DOMA), found unconstitutional by the Supreme Court in Windsor, was not an impediment to recognition of same-sex marriage by immigration authorities. In Zeleniak, U.S. citizen Serge Polajenko filed an immigrant partner for his husband, Oleg Zeleniak. The Citizenship & Immigration Service (CIS) found that the couple had a legal marriage in Vermont, but denied the petition, citing Section 3 of the DOMA. On July 17, 2013, the BIA sent the case back to the CIS stating that the CIS should only consider whether the marriage was entered into in good faith. Thus, the BIA affirmed that Section 3 of DOMA, as a result of Windsor, was no longer an impediment to approval of a petition by U.S. citizen on behalf of his same sex husband, so long as the couple was married in a state where same-sex marriage is legal.
The BIA went further than the immediate issue at hand and sought to identify those areas of immigration law that are impacted by the Windsor decision. The BIA stated:
The Supreme Court’s ruling in Windsor has therefore removed section 3 of the DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated. This ruling is applicable to various provisions of the Act, including, but not limited to, sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status), 8 U.S.C. §§ 1101(a)(15)(K), 1153, 1154, 1157, 1158, 1182, 1227, 1229b, and 1255 (2012).
Ironically, the BIA’s decision appeared the same day that former Attorney General Alberto Gonzales resurfaced from ignominy to publish a wholly unnecessary and surly opinion in the New York Times stating that Windsor did not compel immigration recognition of same-sex marriages. Relying on 1982 decision of the 9th Circuit Court of Appeals, the former Attorney General stated that Congress did not intend to cover same-sex spouses when it used the term “spouse” in the 1952 Immigration & Nationality Act (INA). As a lawyer who has tried to cite 9th Circuit laws in other parts of the country, I am well aware of the limited reach of a decision of a single appeals court. You would think that the former Attorney General would be as well. It is important to keep Mr. Gonzales’ point-of-view in mind, however. Under our system, the Attorney General has the authority to overrule the BIA on any matter of immigration law. Which is why it is important that Mr. Gonzales, thankfully, no longer occupies that post.