New York Lawyer's Legal Updates

BIA: DOMA Can No Longer Be Used Against Same Sex Couples

Author: New York Immigration Attorney Alena Shautsova

DOMA can no longer be used against same sex couples held Board Of Immigration Appeals in its recent decision Matter of Oleg B. ZELENIAK, Beneficiary of a visa petition filed by Serge V. Polajenko, Petitioner 26 I&N Dec. 158 (BIA 2013).

It is probably the first BIA decision issued after the US Supreme Court decision in United States v. Windsor. You can read more on it at Immigration Consequences Of DOMA Being Struck Down.

Now, the BIA, the appellate body for the USCIS denials of family based immigrant petitions affirmatively held that denials of I-130s (immediate relative petition) based on the fact that spouses are of the same sex is unlawful. This decision is also important because it confirmed that US Supreme Court ruling is relevant to other INA sections and provision:

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).

One may think that it would be an obvious consequence of the overruling of the DOMA: that the Immigration benefits should be afforded to the same sex couples and DOMA cannot be any longer against them; but surprisingly, there are USCIS decisions out there, issued after June 26, 2013 that still deny immigration benefits to the same sex couples. See Denial of Fiancé Petition issued on June 27, 2013.

If you have Immigration concerns or questions call Immigration attorney Alena Shautsova 917-885-2261.

19 July 2013
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