Thursday, May 05, 2011

Attorney General Orders Board in DOMA Cancellation Case

I don't plan to make this an immigration law blog, but:

The Attorney General has ordered the Board of Immigration Appeals to make specific findings regarding a (potential) same-sex spouse's eligibility for cancellation of removal.

Cancellation of removal is a type of relief from removal granting someone a green card (permanent residency) if they have been in the U.S. for 10 years or more before being placed into removal (deportation) proceedings, are of good moral character, and show that it would cause "exceptional and extremely unusual hardship" to a qualifying relative such as a U.S. citizen or lawful permanent resident spouse, parent, or child. Immigration and Nationality Act 240A(b)(1), 8 U.S.C. 1229b(b)(1).

Here's the language of the Attorney General's order:

Pursuant to my authority set forth in 8 C.F.R. § 1003.1(h)(1)(i), I order that the decision of the Board of Immigration Appeals (“Board”) in this case applying Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, be vacated, and that this matter be referred to me for review.

In the exercise of my review authority under that regulation, and upon consideration of the record in this case, I direct that the order of the Board be vacated and that this matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 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.

1 U.S.C. 7 says: "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."

What 1 U.S.C. 7 means is that any time a federal agency - like the Citizenship and Immigration Service (part of the Department of Homeland Security) or the Immigration Court (part of the Department of Justice) - interprets a federal statute or federal regulation, the word 'marriage' only means opposite sex unions. Therefore, same-sex married couples are not recognized as being married.

Now, the Attorney General has stated that the Department of Justice will not defend DOMA in court under the heightened scrutiny standard. If you read the letter to House Speaker Boehner, it may not appear obvious to the lay person, but what's happening between the lines is that the AG appears to be saying the reason the DOJ can't defend the statute in court is that it would be a frivolous argument, which is unethical for a lawyer to put forward. AG Holder explains why DOJ believes that a "heightened scrutiny" analysis is required, as opposed to a rational-basis standard being applied, when examining the constitutionality of the statute. A "heightened scrutiny" analysis requires the DOJ invoke, solely, Congress's actual stated justifications for the law, and, as AG Holder puts forth, the legislative history of the statute undermines any defense the DOJ might put forward. What AG Holder says, translated into English (or at least, Sidra-English) is "we can't defend this thing, because there's no legitimate legal argument we can put forth under this legal standard". And lawyers, for all our presentation in the media as manifestations of pure evil, are not permitted to advance frivolous arguments. We face disciplinary action should we do so.

Holder is not saying that the U.S. will fail to defend the statute when the different, lower, rational-basis standard is applied, which means in federal circuits where those courts have already determined that is the appropriate standard, they'll continue to advance arguments under that standard, because the arguments available to make under that standard are legally different.

What's this got to do with the Board of Immigration Appeals? The AG can take up an issue decided by the Board and issue his own ruling. The Board hears appeals of actions taken by Immigration Courts and the Citizenship and Immigration Service (CIS) (I'm simplifying, but...) So, the AG decision above is a decision where the AG is overturning something the Board did, in response to an appeal by somebody of a decision of an Immigration Court or CIS. Executive agencies will still apply DOMA, at least according to Holder's letter to Boehner. Equally obviously, given what he says in this decision, the AG is overturning a decision where someone, either the Court/CIS, or the Board (or both), employed DOMA to, my guess, deny someone cancellation of removal because their proposed qualifying relative was a same-sex spouse.

So, maybe, that assertion in AG Holder's letter that agencies will execute the law even if not defend it when heightened scrutiny will be imposed, is less cut and dried than we might think. Can the DOJ, when tasked to act as a quasi-court (i.e., Immigration Court/Board of Immigration Appeals) do any less, when the Attorney General, the head of the agency, has articulated the proper legal standard for analyzing DOMA, and that under that standard the statute is unconstitutional?