The Defense of Marriage Act and Immigration: Letter to the Executive Office of Immigration Review

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April 6, 2011

Juan Osuna, Acting Director
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 2600
Falls Church, VA 22041

Dear Mr. Osuna:

The undersigned organizations urge the Executive Office for Immigration Review to adopt the interim measures outlined below until there is a final judicial or legislative resolution regarding Section 3 of the Defense of Marriage Act (“DOMA”).

Family unity has long been the guiding principle of U.S. immigration law, and for too long the lesbian and gay spouses of Americans have been treated as legal strangers. The Administration took a historic step forward in announcing its conclusion that Section 3 of DOMA is unconstitutional and indefensible.1 A Massachusetts federal court also has ruled that DOMA cannot withstand even rational basis review. See Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010). Yet unless EOIR offers specific guidance in the area of immigration, spouses of U.S. citizens and lawful permanent residents will continue to be removed from the U.S. for no reason other than that they are lesbian or gay. The following interim measures would preserve the status quo and prevent immediate and irreparable harm to American families.

(1) In all pending proceedings where the respondent is

the principal or derivative beneficiary of an immigrant visa petition involving a marriage between same-sex spouses;

the derivative applicant on an asylum application involving a same-sex spouse ; or

seeking relief from removal (including cancellation, waivers or VAWA benefits) where the qualifying relative is a same-sex spouse or is related through a marriage between same-sex spouses we ask EOIR to terminate proceedings; in the alternative, we ask EOIR to administratively close or continue proceedings until there is a final judicial or legislative resolution regarding Section 3 of DOMA.

(2) In all completed proceedings where the respondent falls into one of the categories described above, we ask EOIR, upon motion by the respondent, to reopen and terminate proceedings; in the alternative, we ask EOIR, upon motion by the respondent, to reopen and administratively close or continue proceedings until there is a final judicial or legislative resolution regarding Section 3 of DOMA.

We are grateful and encouraged by the Administration’s monumental step toward equality for lesbian and gay families. Consistent with the Administration’s action, we urge EOIR to take these interim measures.

We would welcome the opportunity to meet with you to discuss our request and the steps needed for implementation. Please contact Crystal Williams (cwilliams@aila.org; 202-507-7651) at the American Immigration Lawyers Association to schedule a meeting or answer any questions. We look forward to your reply.

Sincerely,

Advocates for Youth
American Civil Liberties Union
American Humanist Association
American Immigration Council
American Immigration Lawyers Association
America’s Voice
API Equality-LA
Asian American Justice Center
Asian Law Caucus
Asian Pacific American Legal Center
ASISTA Immigration Assistance
Association of Mexicans in North America, Inc.
Ayuda Basic Rights Oregon
Bay Area Lawyers for Individual Freedom
Campaign for Community Change
Capitol Area Asian American Democrats
Capitol Area Immigrants’ Rights Coalition
Casa Esperanza Catholics for Equality
Center for American Progress
Action Fund Center for Constitutional Rights
Center for Gender & Refugee Studies
CenterLink: The Community of LGBT Centers
Church World Service, Immigration and Refugee Program
Cleveland Stonewall Democrats
Council for Global Equality
Equality California
Equality Hawaii
Equality Illinois
Family Equality Council
Florida Together Federation Freedom to Marry
Friends Committee on National Legislation
Gay & Lesbian Advocates & Defenders
Hebrew Immigrant Aid Society
HIV & AIDS Legal Services Alliance
HIV Law Project, Inc.
Human Rights First
Immigrant Law Center of Minnesota
Immigrant Legal Resource Center
Immigrant Legal Advocacy Project
Immigration Equality Immigration Law Clinic, University of Arizona, James E. Rogers College of Law
Lambda Legal
Lesbian and Gay Democratic Club of Queens
Loyola University New Orleans College of Law
Mass Equality
Massachusetts Immigrant and Refugee Advocacy Coalition
National Asian Pacific American Women's Forum
National Center for Lesbian Rights
National Center for Transgender Equality
National Immigrant Justice Center
National Immigration Project of the National Lawyer's Guild
National Stonewall Democrats
National Youth Advocacy Coalition
New Hampshire Freedom to Marry
Northwest Immigrant Rights Project
Parents, Families & Friends of Lesbians and Gays
Political Asylum/Immigration Representation
Project Refugio del Rio Grande, Inc.
Rocky Mountain Immigrant Advocacy Network
Safe Horizon Immigration Law Project
San Diego Democratic Club
San Diego Volunteer Lawyer Program
Southern Arizona Stonewall Democrats
Southern Poverty Law Center
Southerners On New Ground
Stonewall Democrats of Central Maryland
Stonewall Democrats of Central Ohio
Stonewall Democrats of Northern Nevada
Stonewall Democrats of Southern Nevada
Stonewall Democrats of Western New York
The DOMA Project – Stop the Deportations
The Episcopal Church
The Florence Project Unid@s
Unitarian Universalist Association
University of Houston Immigration Clinic
Whitman-Walker Clinic
Women Empowered Against Violence
World Organization for Human Rights, USA

cc: David Neal, Acting Chair, BIA Brian O’Leary, Chief Immigration Judge Robin Stutman, General Counsel