Rulings Give Binational Couples Reason for Optimism

Groundbreaking rulings by the Board of Immigration Appeals give couples a chance to stay together, perhaps long enough for DOMA to be struck down.

BY Trudy Ring

June 20 2012 9:29 PM ET

Tom Smeraldo and Emilio Ojeda, one of the couples involved in the case

The immigrant partners in four binational gay couples have another chance at staying in the U.S. under recent rulings by the Board of Immigration Appeals.

The board, in four separate rulings, has refused to affirm the denial of green cards to the foreign nationals, according to the law firm Masliah & Soloway, which represents all four. The appeals board ordered U.S. Citizenship and Immigration Services, which had denied the green cards because of the Defense of Marriage Act, “to determine whether the marriages are legally valid and whether, notwithstanding DOMA Section 3, the spouse would qualify for a green card under the Immigration & Nationality Act,” says a press release from the firm. Also, in one case, the board reopened removal proceedings for a spouse who was under a deportation order. This is the first time the appeals body has taken either action after denials based solely on DOMA Section 3, the firm notes.

“We are elated that the Department of Justice has ordered USCIS to treat the marriages of each gay binational couple with respect by requiring that a complete record of eligibility be created,” said attorney Lavi Soloway. He explained to Metro Weekly that the ruling delays the cases and opens up the possibility of the foreign spouses receiving green cards if the U.S. Supreme Court strikes down DOMA. Several lower courts have declared the law, which prevents the federal government from recognizing same-sex marriages, to be unconstitutional.

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