The Board of Immigration Appeals Refuses to Agree with CIS Decisions Denying Green Cards to Gay Partners who were Legally Married in their States, Despite the Federal Defense of Marriage Act

In June 2012, in four separate cases of CIS decisions in states where gay marriage was considered legal under state law, the BIA ordered the USCIS to complete full fact-finding to determine whether the marriages are legally valid and whether the spouse would qualify for a green card under the Immigration & Nationality Act if the Defense of Marriage Act did not exist.  In one case, the ruling re-opened removal proceedings for the spouse of a gay American who had an outstanding deportation order.  The Board of Immigration Appeals has never before re-opened removal proceedings or remanded green card petitions back to USCIS after denials based solely on DOMA Section 3. Currently, the Defense of Marriage Act serves as CIS's basis for refusing to grant green cards to gay spouses of US citizens because DOMA defines marriage as between heterosexuals only for purposes of federal benefits. DOMA has not been overturned by the US Supreme Court to date. 

The BIA's recent movement on this issue is a great sign but it's still not clear yet if future cases based on case marriage will succeed while DOMA is still valid law.

New immigration policy announced today for Dreamers

A major change in immigration policy was announced by the Obama Admnistration today. The DREAM Act that has been stuck in committee in Congress for years is similar to the new deferred action policy announced today. This is a temporary stay from deportation for certain children under the age of 30 who are in the US illegally.

Deferred action is a temporary "status" that protects someone from being placed in removal. Deferred action under the new policy would allow for a work permit (EAD). Details are sketchy as of today but we know for sure that the following is required to qualify:

• Been in the US for the past five years 
• In high school or graduated high school or have GED or honorably discharged from military 
• no major crime or multiple minor crimes be under the age of 30 

This deferred action does not give a path to permanent residency (a way for a person with deferred action to obtain a green card) or citizenship.

Deferred action will only be granted for 2 years at a time and is not guaranteed to be renewed at the end of the 2 year period. The new CIS memo addresses three areas. For individuals who have are encountered by ICE & CBP, these agencies should exercise prosecutorial discretion on whether to issue NTAs for those who would qualify for this deferred action on a case by case basis. Immigrants who are in removal proceedings but not yet subject to a final order of removal - ICE is instructed to use office of public advocate to identify those who would qualify for deferred action. More info to come. . .