First immigration decision approving visa petition for same sex spouse issued

by Atty. Emmanuel Samonte Tipon 

Three weeks after the U.S. Supreme Court ruled on June 26, 2013 that § 3 of the Defense of Marriage Act (DOMA) providing that "marriage" means only a union between a man and a woman is unconstitutional because it violates the constitutional guarantees of equal protection and due process, United States v. Windsor, 133 S. Ct. 2675, 2695-96 (2013), the Board of Immigration Appeals on July 17, 2013 issued the first official ruling holding that a spousal visa petition by persons of the same sex may be approved if the marriage is valid under the laws of the State where it was celebrated and if it is in good faith. Matter of Oleg B. Zeleniak, 26 I&N Dec. 158 (BIA 2013).

The Board, which reviews denials of visa petitions, said that Section 3 of DOMA, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act (INA).

The National Benefits Center Director had denied a Petition for Alien Relative (I-130) by a U.S. citizen, Serge V. Polajenko, on behalf of the alien beneficiary Oleg B. Zeleniak, as his spouse.  Both parties are male. The petitioner appealed to the Board which remanded the record to the Director to determine whether the petitioner’s marriage is valid under State law and whether the marriage qualifies under the Immigration and Nationality Act.

The Director denied the petition again, finding that although the petitioner and beneficiary had a valid marriage under the laws of Vermont, he would not consider the issue whether the beneficiary would be a spouse under the Act absent the requirements of section 3 of the Defense of Marriage Act (DOMA).

Section 3 of DOMA, Pub. L. No. 104-199, 110 Stat. 2419, 2419 (1996) (“DOMA”) sets forth the meaning of the word “marriage” in 1 U.S.C. § 7 (Supp. II 1996):  "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife."

The petitioner appealed the Director’s second denial. While the appeal was pending, the Supreme Court ruled that § 3 of DOMA is unconstitutional. The Board held: The Windsor ruling removed § 3 of DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated. The validity of a marriage under State law is generally governed by the law of the place of celebration of the marriage. See Matter of Lovo, 23 I&N Dec. at 748.

An alien spouse of a U.S. citizen may acquire lawful permanent resident status in the U.S. under INA § 201(b)(2)(A)(i) [8 U.S.C. § 1151(b)(2)(A)(i) (2012)].  To determine whether a marriage is valid for immigration purposes, petitioner must establish that a legally valid marriage exists and that the beneficiary qualifies as a spouse under INA, which includes the requirement that the marriage must be bona fide. 8 C.F.R. § 204.2(a) (2013). Since the Director had determined that the petitioner’s marriage is valid under the laws of Vermont, where it was celebrated, the remaining inquiry is whether the petitioner established that his marriage is bona fide. The Board remanded the record to the Director for such determination.

RULING APPLIES TO OTHER IMMIGRATION PROVISIONS

This ruling applies to various provisions of INA, including, but not limited to, §§ 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)].


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com.  He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)