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Art Leonard Observations

Immigration Review Panel Announces Same-Sex Marriage Recognition Rule

Posted on: July 19th, 2013 by Art Leonard 3 Comments

Shortly after the Supreme Court held Section 3 of the Defense of Marriage Act (DOMA) unconstitutional on June 26 in U.S. v. Windsor, Department of Homeland Security Secretary Janet Napolitano announced that the immigration service under her department would recognize same-sex marriages that were valid where they were performed, using the “place of celebration rule.”  But her announcement, which varied from standard practice of considering whether a marriage was recognized where the couple was residing, the “place of domicile rule,” was not binding outside her department.  On July 17, the administrative body whose opinion on this would be crucial also opted for the “place of celebration rule,” as the Board of Immigration Appeals (BIA), a body within the Justice Department’s Executive Office for Immigration Review, ruled on a pending petition by a U.S. citizen seeking lawful resident status for his same-sex spouse.

The case is Matter of Oleg B. Zeleniak, 26 I & N Dec. 158, Interim Decision 3787, 2013 WL 3777692 (BIA July 17, 2013).

Serge Polajenko, a U.S. citizen, filed a Petition for Alien Relative, called an I-130, on March 10, 2010, on behalf of his husband, Oleg Zeleniak, after the men were married in Vermont.  The petition was denied on July 27, 2010, on the ground that DOMA, Section 3, barred immigration authorities from recognizing same-sex marriages.  Polajenko appealed to the BIA, which issued a decision on April 18, 2012, sending the case back to the National Benefits Center Director to address two issues: first, whether the Polajenko-Zeleniak marriage was valid under state law, and second, whether the marriage qualifies as bona fide as required by the Immigration and Nationality Act.  At that time, of course, the Justice Department was on record as finding that DOMA Section 3 was unconstitutional, and it had stopped defending the statute in litigation, but was committed to continuing to enforce it pending a final decision from the Supreme Court.  Remanding the case for these further determinations was, in effect, a holding action.

 The questions posed by BIA are two distinctly separate issues, arising under two different bodies of law.  The second concerns the requirement that a marriage be “bona fide,” not a marriage of convenience entered for the purpose of getting a “green card” (authorization to live and work in the United States), but rather a “real marriage” of parties intending to live as spouses.  In response to the BIA, the Director issued a new decision on June 19, 2012, finding that the couple was validly married under Vermont law, but refusing to consider whether the marriage was bona fide for immigration purposes and again denying a visa for Zeleniak.  Again Polajenko appealed.  This time, as litigation involving DOMA was coming to a climax in several federal courts and clearly headed to the Supreme Court, the BIA sat on the appeal, as it has on many pending cases, waiting for the Supreme Court to rule.

 The BIA’s new decision on Polajenko’s petition holds that the Windsor decision “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” fiancée and fiancée visas, immigrant visa petitions, refugee and asylee derivative status, inadmissibility and waivers of inadmissibility, removability and waivers of removability, cancellation of removal, and adjustment of status. 

 Thus, the BIA sustained Polajenko’s appeal, finding that the Director had already determined that the marriage is valid under Vermont law, “where the marriage was celebrated.  Thus, the sole remaining inquiry is whether the petitioner has established that his marriage to the beneficiary is bona fide.  We will remand the record to allow the Director to make that determination.” 

 The BIA’s ruling now becomes the precedent, and presumably a stream of rulings on backed-up appeals will follow. Although the BIA did not address the issue directly, presumably the place of celebration rule also extends to marriages between U.S. citizens and foreign nationals that take place outside the U.S., in one of the dozen or so other countries that allow same-sex marriages.  While Homeland Security has been issuing green cards over the past few weeks in response to I-130 petitions in accord with Napolitano’s direction, the BIA ruling lines up the Justice Department with Homeland Security on the important issue of “place of celebration,” which means that married same-sex couples will be recognized for immigration purposes, regardless of where they are living, so long as their marriages are found to be bona fide.

 

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3 Responses

  1. Thom Watson says:

    You wrote: “But her announcement, which varied from standard practice of considering whether a marriage was recognized where the couple was residing, the ‘place of domicile rule,’ was not binding outside her department. ”

    I found this confusing. Whose “standard practice” consisted of the “place of domicile rule”? My understanding is that BIA, at least, previously already used the place of celebration rule for opposite-sex couples. See, for example, http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1048&context=wmjowl p.2 (p. 550 in the original) And here, from 1975: http://www.uscis.gov/ilink/docView/INT/HTML/INT/0-0-0-65300/0-0-0-79131.html

    So wasn’t place of celebration in fact already the “standard practice” for immigration purposes?

    • Art Leonard says:

      I had consulted a faculty colleague who teaches immigration law and said that in fact the “domicile rule” was commonly used by immigration officers, so that both Napolitano’s directive and this BIA decision could be considered to be making new law by firmly settling on the “place of celebration rule.” I note that the BIA asserts in its decision that the “domicile” rule has been followed in the past. But if that were the case, then there would have been no suspense about this when the Windsor decision was announced, but my understanding was that there was a bit of suspense before Napolitano acted, and that people were unsure how immigration would go. Now we have assurance from the two relevant departments – Homeland Security and Justice – that the “place of celebration” rule will be followed. This is good news both for same-sex married couples living in the U.S. and those who are applying from overseas.

  2. [...] The BIA ruling follows an announcement in late June by Department of Homeland Security Secretary Janet Napolitano, who said her office would opt for the ‘place of celebration rule,’–a decision which diverged from previous practices based on where a couple lived but which would have held no sway outside her department. Writing on his blog Art Leonard Observations, New York Law School Professor Arthur Leonard explains …: [...]

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