Victory! Board of Immigration Appeals Refuses to Affirm Denials of Green Card Petitions Filed by Four Gay Couples, Remands for Determination on Eligibility of Marriages

Tom Smeraldo and Emilio Ojeda, who live in “DOMA exile” in Canada were one of four DOMA Project couples to receive the unexpected ruling from the Board of Immigration Appeals

The DOMA Project has won an important, unprecedented victory in the fight for green cards for married gay and lesbian binational couples. In four separate rulings, the Board of Immigration Appeals has rejected the U.S. Citizenship and Immigration Services’ “DOMA denials” of green card petitions filed by four married, gay couples residing in Florida, New York, Pennsylvania and Canada. In all cases, the BIA ordered the USCIS to complete full fact-finding 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.  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.

Masliah & Soloway, the law firm that launched Stop The Deportations – The DOMA Project, represents all four couples.

“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 in reaction to the rulings.

We will follow up with a complete report next week on this site.

The BIA rulings were reported today by Chris Geidner at MetroWeekly here.

Read more about two of the couples involved: Mark Himes and Frederic Deloizy of Harrisburg, Pennsylvania and Tom Smeraldo and Emilio Ojeda, formerly of New Jersey now living in exile in Toronto, Canada.

12 comments


  • Don George

    I really think (section 3 of) DOMA will be dead by the end the Supreme Court session of 2013. Thank you to all the pioneers and pathfinders who are doing this for the rest of us. I am particularly interested to see how the couple from a non marriage state such as PA will fare above, since I live in GA. I’m wondering whether my spouse and I should be getting an immigration attorney and starting our paper work.

    I believe that it is imperative that President Obama be re-elected, because even if the Court rules DOMA unconstitutional, a President Romney can have the bureaucracy hold these (and our) applications up for years.

    June 19, 2012
  • Bruce

    Congratulations to all involved!
    This part of the article jumps out at me: “Two of the couples had applications for adjustment of status to permanent residence, or I-485 applications, that were concurrently filed. Those applications are now also pending … because the alien relative petition [(I-130)] is pending.” The pending I-485 allows for work authorization, Soloway notes.”
    Could this be a strategy for other bi-national couples to get work authorization for the foreign partner?

    June 20, 2012
    • The DOMA Project

      Bruce,
      We do not recommend that any of the information provided via The DOMA Project be taken as a suggestion or encouragement for any legal strategy. The posts are for information only and should not be understood as recommending any course of action. We have carefully selected these cases and urge all couples to engaged appropriate legal counsel and representation before making any decisions whether to proceed with any filings.
      Lavi Soloway

      June 20, 2012
  • T n J

    So, I think it would be safe to say that we should get married after DOMA is declared unconstitutional by the supreme court. Congrats to everyone who’s made it and thanks for fighting for us.

    June 20, 2012
  • Jennifer Miller

    Lavi,
    Thank you for being a fierce advocate for this issue. I thank you for all you do. You are a true champion for the cause of equality. I can’t thank you enough for taking up these cases on our behalf to fight against discriminatory DOMA!

    June 21, 2012
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    June 21, 2012
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    June 26, 2012
  • Ali

    I’m still not sure what this means. Once USCIS gathers the facts and determines the marriages are bona fide, it doesn’t make sense for them to deny the petitions again. My guess is USCIS will start holding the petitions in abeyance after the fact finding process.

    June 27, 2012
    • The DOMA Project

      We will continue our work to persuade the administration to fully adjudicate every marriage petition filed by a lesbian or gay couple, including these four remanded cases. This work has been a key part of our campaign for the past 23 months and includes advocating for interviews and abeyance following fact-finding. As long as couples stand up and tell their stories, challenge the discriminatory impact of DOMA, hold USCIS and other agencies accountable and demand to be treated equally, will we bring about incremental change toward full equality and continue the achieve the important victories we have catalogued on this site. The BIA rulings described here could not have happened if courageous couples had not fought for these green card petitions. Abeyance is something we cannot predict, but it is something we can fight to make a reality until DOMA is repealed by Congress or struck down by the Supreme Court.

      June 27, 2012
  • Helen Parsonage

    Lavi:

    Great work!! Have you posted the BIA decisions online anywhere? Would love to see them.

    July 18, 2012

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.