While LGBT advocacy organizations like ALL OUT and GetEQUAL are pushing to stop tomorrow’s deportation of Henry Valendia, thus tearing him apart from his legal marriage with Joshua Vandiver, it seems Attorney General Eric Holder is taking further steps to discredit the anti-gay Defense of Marriage Act.
“Pursuant to my authority set forth in 8 C.F.R. § 1003.1(h)(1)(i), I order that the decision of the Board of Immigration Appeals (“Board”) in this case applying Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, be vacated, and that this matter be referred to me for review.”
Saying the attorney general “has taken [an] extraordinary step” with the decision, attorney Eric Berndt — the supervising attorney for the National Asylum Partnership on Sexual Minorities at the National Immigrant Justice Center — told Metro Weekly, “It adds some heft to our requests for prosecutorial discretion in individual cases in which the foreign partner” of a same-sex bi-national couple is seeking a green card because of his or her citizen same-sex partner.
Holder goes on to state four questions that he directs the BIA to consider:
In the exercise of my review authority under that regulation, and upon consideration of the record in this case, I direct that the order of the Board be vacated and that this matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to:
1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law;
2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act;
3) what, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief; and
4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.
This could be extraordinary news, considering Holder’s specific questions. It’s apparent from his requests to the BIA that state’s rights may be violated by DOMA, considering his mention of “New Jersey law.” Let us hope this is good news for Joshua and Henry (who is set for deportation tomorrow).
More on this story at Metro Weekly.