Tuesday, September 6, 2011

For the First Time, the Obama Justice Department Argues that DOMA is Unconstitutional When Applied to Binational Lesbian and Gay Couples Filing I-130 Petitions

On Friday, just as most of us began to settle in for the Labor Day holiday weekend, the Department of Justice filed a brief in Federal District Court in California arguing that is a violation of the United States Constitution to deny I-130 Alien Relative Petitions filed by lesbian and gay U.S. citizens for their foreign born spouses.

The filing multiplies the ironies and cognitive dissonance of an administration that will continue to enforce DOMA against married binational couples while taking an increasingly aggressive legal and rhetorical position that DOMA is unconstitutional. The Obama Justice Department filed the brief on behalf of the following named defendants: on behalf of the named defendants: Attorney General Eric Holder, DHS Secretary Janet Napolitano, USCIS Director Alejandro Mayorkas, and the Los Angeles USCIS District Director, Jane Arellano. Essentially, Justice Department Attorneys are arguing that none of these Defendants should be enforcing DOMA because it is unconstitutional. 

This is the first time the DOJ has filed a brief arguing that DOMA is unconstitutional specifically in the immigration context. DOJ filed this brief in support of a binational couple in California who are suing the federal government because their I-130 was denied on the basis that DOMA prohibits USCIS from recognizing their marriage. Essentially DOJ argues that USCIS should be approving I-130 petitions filed by same-sex couples, because to discriminate against lesbian and gay couples in this context is impermissible under the U.S. Constitution. DOJ further argued that the three decade old case of Adams v Howerton was no longer applicable precedent and that the "plenary power" of Congress to regulate immigration do not permit discrimination against married gay and lesbian binational couples.

Chris Geidner at MetroWeekly has published two articles today which are a must-read for those who have followed closely the developments since the Obama administration's February 23 refusal to defend DOMA. (See Defending DOMA, Fighting Back and DOJ Argues DOMA's Unconstitutionality Holds, Even In Immigration Context, Metro Weekly, September 6, 2011.)

While this development may have implications for couples who are appealing denials of I-130s to the Board of Immigration Appeals, or seeking to have proceedings re-opened on the basis of pending I-130s, it does not change the reality that I-130s will continue to be denied. Lesbian and gay couples who file on the basis of their marriages will continue to risk deportation, or limit their ability to qualify for other visas. We continue to urge all couples to consult with competent legal counsel with expertise in issues relating to DOMA and immigration.

Read the entire DOJ brief here.

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