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BIA Rules that DOMA is no Longer a Bar to the Approval of Same-Sex Petitions

By: Ahmad Yakzan
Published: July 19, 2013

In a decision issued on Wednesday, the BIA remanded an immigrant visa petition to the District Director because DOMA is no longer a bar to the approval of same-sex petitions. In Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013), a United States citizen petitioned for his spouse. The District Director denied the petition in 2010 and he appealed to the BIA. The BIA remanded the petition to address some issues, the Director issued a second denial and the Petitioner appealed the second denial.

The Director had ruled that the same-sex couple had a valid marriage but the petition could not have been approved because of Section 3 of DOMA, which prohibited immigration benefits to same-sex couples. In remanding the petition to the District Director, the BIA reasoned that the Supreme Court’s ruling in U.S. v. Windsor, 133 S. Ct. 2675, 2695-96 (2013), removed the former prohibition under Section 3 of DOMA to the approval of same-sex immigration petitions. Thus, the BIA remanded the petition to the District Director for further consideration.

This is a monumental decision, since the decision is binding on USCIS when adjudicating immigrant visa petitions. It is also binding on all immigration judges around the nation. These are the first effects of the Supreme Court’s decision which will affect the ways that immigration practitioners will tackle immigration cases.

Ahmad Yakzan

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