A very interesting development. Attorney General Eric Holder announced in March that the Justice Department would no longer argue that the Defense of Marriage Act is constitutional. DOMA is the reason legally married same sex couples cannot petition for green cards. The March announcement led USCIS to hold off for a week on denying cases filed by same sex couples, but it has been business as usual at USCIS since then and cases have been denied despite cases working through the courts challenging DOMA.


Yesterday, AG Holder announced that he is vacating a decision from the Board of Immigration Appeals relating to the deportation order for a partner in a civil union, a legally sanctioned relationship that resembles marriage in most respects. It seems that the Administration's position is now to hold off on deporting most marriage and civil union partners while not adjudicating green card petitions.


Think Progress describes the development:



Today, in what is being described as a "very rare decision," DOJ Secretary Eric Holder announced that he has vacated -- or essentially wiped out -- a decision by the Board of Immigration Appeals in reference to a recent case in which the BIA applied DOMA's Section 3. In his decision, Holder listed the criteria the BIA should consider:


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.


Attorney Eric Berndt of the National Asylum Partnership on Sexual Minorities at the National Immigrant Justice Center told Metro Weekly that Holder's decision "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.


Queerty points out that Holder's decision isn't just significant because he is asking the BIA to stop and reconsider this specific deportation, he has chosen to vacate a decision involving a civil union rather than a marriage. "This is a huge huge huge deal for all the bi-national couples in states that do not have marriage," notes the blog.