Attorney General Holder steps into immigration case of bi-national same-sex couple

May 5, 2011 at 6:23 pm 52 comments

By Adam Bink

Some big news today from the Attorney General’s office regarding the forced separation of same-sex couples:

Attorney General Eric Holder today filed a very rare decision, vacating a decision by the Board of Immigration Appeals related to the application of Paul Wilson Dorman, in which the BIA applied Section 3 of the Defense of Marriage Act to a pending case.

Holder’s decision:

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.

Dorman entered a civil union in New Jersey with his male partner.

I got off the phone with Lavi Soloway, the attorney for Henry and Josh, who are set to face the final deportation hearing tomorrow. Lavi said:

What this shows is the executive branch has the necessary authority to protect bi-national couples from being torn apart, but its willing to do that, and so it’s looking for ways. What we’re looking for is a moratorium. This is not that. This is the Attorney General looking into one case and seeing what can be done, which can be applauded. What we need to do is explore that… what this does is showing the executive branch wants to find a solution to this problem. This development could be a sign that the Obama administration is looking for a way to protect gay and lesbian bi-national couples who are currently barred from the regular marriage-based immigration process by the Defense of Marriage Act.

This is proof that the pressure has an impact.

If you’re in the NYC/northern NJ area, please consider joining a hundred supporters of theirs for a rally outside the courthouse before the hearing tomorrow, along with nine organizations including Courage Campaign. Details:

Department of Homeland Security
Newark Immigration Court
Peter Rodino Federal Building
970 Broad Street
Newark, NJ
WHEN:  FRIDAY MAY 6 at 11 a.m.

RSVP on Facebook.

Entry filed under: DOMA trials.

Sen. Sherrod Brown to support DOMA repeal; 1 of 2 former House members to vote against DOMA Other Prop 8 briefs this week

52 Comments Add your own

  • 1. JonT  |  May 5, 2011 at 6:27 pm

    I read this earlier – let’s hope it actually means something going forward.

    It does seem to demonstrate the administration’s willingness to try to deal with these issues. Finally.

    Not holding my breath though – I’ve been hurt before :)

    • 2. Kathleen  |  May 5, 2011 at 6:32 pm

      • 3. Straight for Equality  |  May 5, 2011 at 9:42 pm

      • 4. Ann S.  |  May 5, 2011 at 9:42 pm


    • 5. Rhie  |  May 5, 2011 at 7:45 pm

      I agree with this assessment.

  • 6. Sagesse  |  May 5, 2011 at 6:52 pm

    Just wondering. NOM is silent about the immigration effects of DOMA. Doesn’t this threaten their worldview?

    • 7. atty79  |  May 5, 2011 at 7:42 pm

      No, I think reality threatens their world view.

      Sorry, had to be funny. It’s the first thing that sprang into my head!

      • 8. Sagesse  |  May 5, 2011 at 8:04 pm

        They bring down the wrath of the rabid religious right wing commentariat on anyone who threatens their view of marriage. Yet not a word about AG Holder and the DOJ who are stalling action against bi-national couples. Doesn’t that seem odd?

        • 9. Kathleen  |  May 5, 2011 at 8:06 pm

          Maybe they don’t want to bring too much attention to this extremely cruel consequence of DOMA, for fear that they’d lose some of their followers.

          • 10. Linda  |  May 5, 2011 at 10:27 pm

            @Kathleen–I think you’re right.

          • 11. Jon  |  May 6, 2011 at 11:05 am

            That’s exactly it. Is my guess. They’re aware they might look cruel.

            See the down side of being cruel is you might look it.

      • 12. Maggie4NoH8  |  May 6, 2011 at 9:49 am

        I appreciate your humor!

  • 13. paul  |  May 5, 2011 at 7:43 pm

    When I think of Henry & Josh my heart aches. I can’t imagine what it would be like to be torn away from the person you love because of discrimination & bigotry. I think I would refuse to move and let the legal system have it’s way with me. I think of the Freedom Riders. I think I would say NO, not me, not this time, not again…not ever again.
    I’ll pray hard for justice and compassion tonight…and hope that will be enough…but achieving equality has proven to be something that takes more than prayers.
    The question is…how far are we willing to go?

    • 14. BK  |  May 6, 2011 at 5:39 am

      I can understand why someone wouldn’t want to leave. It would be such an absolutely horrible experience. But what would happen if you do refuse to leave? Doesn’t that mean you can’t return to the United States? I would find that too high a price to pay for disobedience.

      • 15. Carpool Cookie  |  May 6, 2011 at 11:05 am

        Maybe it does mean that…but lots of LBGT couples have bailed from the U.S. already over Marriage Equality issues….so maybe these two have a backup plan for living abroad?

  • 16. Alan E.  |  May 5, 2011 at 7:47 pm

    This constant pulling from both sides is not healthy! I can’t wait until DOMA is ruled unconstitutional.

  • 17. Bob  |  May 5, 2011 at 9:26 pm

    well, at least Holder’s decision, has the opportunity to confront some of the issues ,, and hopefully deal with them,,,, I like that he stepped up to the plate,,, like that,,,,

    could it be a sign from Obama??? better be,,,,

    I like Paul’s post above,,,,, reference to the Freedom Riders,,, did anyone else watch that episode of Oprah,,,,

    • 18. paul  |  May 6, 2011 at 8:14 am

      Yes Bob…I did see that Oprah show, and it’s what made me see the similarities. Of course there is risk in civil disobedience and there may be lasting consequences as BK mentions above. But the FR’s took that risk when nobody else would and they changed the world we live in.
      I’m 60…and I’ve never seen meaningful change occur in the U.S. without some discomfort…civil disobedience at the very least.
      I guess at my age, I want to say I did something important in my life…besides talk !!! Go figure!

      • 19. Bob  |  May 6, 2011 at 10:48 am

        Paul, we’re the same age, I feel the same way,,,, sooo much has happened in our life time,,,, that was the fifty year anniversary of the Freedom Ride,,,,,
        what moved me the most was that women telling how as a young girl she organized a continutation of the Rides,,, and a much older white gentleman was there telling how he had tried to talk some sense into her,,, saying look girl do you realize if you go through with this, people may die,,,, her reply,,, do you realize sir,, all of us have completed our last will and testaments in prepartation for the ride,,,, wow,,, what determination,,,, what courage,, what conviction,,, they were going on the ride that was for sure,,, but they weren’t sure they were coming back,,,,

        although Oprah does not get political, I do think that show was very timely in terms of casting some light on history, and how we arrived where we are,,,, and it does give hope to all those fighting for equality……

        I think there is a lot of movement towards equality,,, when you look at the overall picture,,, and considering we are slogging at this on a day to day basis on this site, it seems like it’s taking forever,,,,,

        what has been mentioned so often is the equality we do have when it comes to freedom of speech,,,, and I guess the LGBT community,,in America has just started to really exercise that right,,, in the last few years,,,, so when you look at that ,, we have made progess, to see it take up mainstream news coverage,,, and be discussed to the extent it is,,,, equal rights for LGBT’S is on the agenda,,, that’s progess….

        I was telling a friend the other day,, when I explored my sexuality, it was a crime,,, today I’m legally married,,,
        that’s a 180 in terms of social acceptance,,,,,, which of course as has also been mentioned,,, could be threatened by our present conservative majority in Canada, but remember we got marriage rights with a conservative gov’t ,, our litmus test now is to see the Conservatives true agenda by pushing bill C386 (if I remeber correctly) which is winding it’s way through gov’t , it specifically adresses the issue of transexuals, and affords them the same rights, we now enjoy,,,

        I think the U.S. is making amazing progess,,,,, we’ll keep up the fight,,,,,

        if they took back my rights at this point, I would have no problem going back to the front lines all over again,,,, with more vigor,,,,,,, we will prevail……

  • 20. Peterplumber  |  May 5, 2011 at 9:53 pm

    Did anyone see this yet??

    Same-sex unions recognized by Brazil’s high court
    From Marilia Brocchetto and Luciani Gomes , For CNNMay 5, 2011 10:16 p.m. EDT

    (CNN) — Brazil’s Supreme Court ruled unanimously Thursday that the nation should recognize same-sex unions.

    The court voted 10-0 in favor of recognizing the unions. One justice abstained because he had spoken publicly in favor of same-sex unions when he was attorney general.

    The court ruled that the same rights and rules that apply to “stable unions” of heterosexual couples will apply to same-sex couples, including the right to joint declaration of income tax, pension, inheritance and property sharing.


    • 21. ĶĭŗîļĺęΧҲΪ  |  May 6, 2011 at 5:12 am

      Great news about Brazil! Unanimous decision made by the Supreme Court in a case that would be considered controversial at best in the US is certainly great news for everyone. In our modern times it is absolutely clear there is no reason to deny same-gender couples the right to marry, we all know that, and we also know that the anti-gay crowd only uses its freedom to have and defend an opinion, no matter how bigoted it is — that’s what too much freedom and individuality leads to (if you think your opinion is worth a lot, you will never realize that sometimes you must shove that opinion up your ass because you’re hurting others and discriminating against them without any real reason justifying that discrimination).

      • 22. Steve  |  May 6, 2011 at 5:25 am

        Basically they approved a form of common law marriage. If a couple lives for some years in a marriage-like arrangements, they are effectively married.

        One of them also said that a secular nation needs to base its laws on logic and the constitution (or something to that effect) and not on religious views. You’d never hear a US Supreme Court judge express that this clearly. They’d be crucified by the public

    • 23. BK  |  May 6, 2011 at 6:03 am

      This is wonderful! Full-fledged marriage would have been great, but this is still absolutely amazing. How can the United States be so far behind? It’s so angering.

      But back to Latin America. WIth Argentina having marriage equality and Brazil and Uruguay having civil unions, I hope more countries in the region will follow. Chile, perhaps.

      • 24. Steve  |  May 6, 2011 at 6:23 am

        Columbia is a possibility too. A lawsuit was only dismissed by the Supreme Court for technical reasons. Not on the merits.

    • 25. nightshayde  |  May 6, 2011 at 12:55 pm

      Wow – I must really need lunch.

      I just misread “Same-sex unions” as “Same-sex unicorns.”


      • 26. BK  |  May 6, 2011 at 11:07 pm

        Well, unicorns would also be nice. :)

  • 27. Kathleen  |  May 6, 2011 at 1:07 am

    UPDATE: Windsor v. USA (DOMA case in NY District Court)

    I haven’t looked at these carefully, but at first glance, they appear to be identical to today’s filings in the Pedersen case.

    DOJ Response to House Motion to Intervene

    House’s Notice of Intent to Reply to the DOJ Response

  • 28. Ronnie  |  May 6, 2011 at 4:48 am

    Mom & I will be at the rally today. We got to meet Henry & Josh yesterday. Members of Queer Rising were putting together a press release about them so we did a photo shoot at Liberty State Park with the Statue of Liberty in the background…..when I get links I will post them.

    They are an adorable couple and they look happy together. They both have jobs & they are legally married. The government should not be tearing them apart….I hope the best for them today……<3….Ronnie

    • 29. AnonyGrl  |  May 6, 2011 at 7:17 am

      Love you, Ronnie… really do! And your mom too!

  • 30. ĶĭŗîļĺęΧҲΪ  |  May 6, 2011 at 5:15 am

    Today is the day that will decide the fate of Henry & Josh. Can Holder’s statement help them today in their case? Anyone?

    • 31. AnonyGrl  |  May 6, 2011 at 8:05 am

      I don’t know, but probaby not. It looks to me like Holder has to step in to each case personally for there to be any effect, and there does not seem to be any indication whether he will do so or not for Henry & Josh.

      The system is so incredibly inequitable, and the wheels of justice don’t turn very fast… so for all the ground we are winning over all, individuals are still losing in droves.


  • 32. Sagesse  |  May 6, 2011 at 5:18 am

    It feels as though New York has a unity of purpose that could succeed. Similar to California, it also has a cultural ‘machine’ that other, smaller states lack.

    Marriage equality: It’s up to you, New York

  • 33. Sagesse  |  May 6, 2011 at 5:31 am

    May 12 in San Diego

    Judge Walker speaks at 18th annual gay, lesbian legal dinner

  • 34. Sagesse  |  May 6, 2011 at 8:03 am

    It’s not the message that’s interesting, it’s the source. From the Air Force Times

    No point delaying ‘don’t ask, don’t tell’ repeal – Air Force Community – Air Force Times

  • 35. Canadian JAG Officer  |  May 6, 2011 at 8:49 am

    If anyone lives in NY’s 12 Congressional District please contact Sen. Addabbo!
    He previously voted against the equal marriage bill but now is undecided and said he will be counting responses he gets for each side of the issue so every communication he gets counts!
    Phone: (518) 455-2322
    Web Contact:

    • 36. AnonyGrl  |  May 6, 2011 at 9:23 am

      AND one of the silly reasons that the vote went against us last time was precisely BECAUSE Addabbo voted against it. He is first, alpahbetically, he was undecided, but when the role call vote happened, he panicked, voted no, and that made a bunch of lemmings behind him panic too.

      This info comes right from my Senator’s chief of staff, when we met with her and asked how we could help get it passed this time, SHE advised that we get Addabbo to lead the way!

      Please do contact everyone you know in New York who might know others and ask them to make that call. I know I will be doing so!

      I am getting kind of excited that we just might be able to make it happen this time!!!!!

    • 37. Maggie4NoH8  |  May 6, 2011 at 1:45 pm

      I sent an email – even though I live in Cali…

      NOM has asked the NOMbies to contact him too.

      Come on guys and gals! Just ‘cuz you don’t live in NY, or his district is NO reason not to contact him!

      I’d even argue that someone knowing he voted no, is on the fence (and is watching now), is 2,500 miles away and took the time to write now might be as persuasive as anything…

  • 38. nightshayde  |  May 6, 2011 at 10:26 am

    Hey, Folks —

    Having NOTHING to do with this article, but lots to do with equality in general…

    Has anyone here participated in the annual Swim for Equality events put on by EQCA? I’m strongly considering doing the Malibu swim in September, but wanted to see if anyone here had had any experience with the event.

    • 39. Gregory in Salt Lake City  |  May 6, 2011 at 11:18 am

      sounds nice : ) I’m a VERY amateur triathlete….the swimming and biking are my favorite part. I’ll have to look more into this. thx 4 mentioning.

      • 40. nightshayde  |  May 6, 2011 at 11:30 am

        There’s one on June 26th in San Francisco (swimming from Alcatraz to Aquatic Park) & one in Malibu on September 24th (swimming from Point Dume Beach to the Zuma lifeguard headquarters).

        You can visit for more information.

  • 41. Franck  |  May 6, 2011 at 11:02 am

    Latest news about Josh and Henry’s hearing: they got some respite. The case has been adjourned to master calendar in December. Henry is allowed to stay in the country until then.

    In Henry’s case, the judge acknowledged Holder’s ruling yesterday and the fact that the definition of marriage is ambiguous now.

    Not exactly the good news we were waiting for, but certainly not the bad news we were afraid of!

    – Franck P. Rabeson
    Days spent apart from my fiancé because of DOMA: 1414 days, as of today.

    • 42. Gregory in Salt Lake City  |  May 6, 2011 at 11:09 am


    • 43. nightshayde  |  May 6, 2011 at 11:13 am

      Yay! That’s excellent news!

    • 44. Ed  |  May 6, 2011 at 11:16 am

      I really like how the judge used the word ambiguous now. He’s recognizing the numerous court cases against DOMA, and to me, that shows a positive light for us. Just my opinion.

  • […] to grant the couple’s request to adjourn the case given the news yesterday afternoon of Attorney General Holder’s intervention in a similar case. The case is adjourned until December. Not a permanent and lasting success, but very good news that […]

  • 46. Richard Lulenski  |  May 6, 2011 at 12:31 pm

    Is Dr. Laura Schlessinger antigay?

    • 47. Ann S.  |  May 6, 2011 at 12:42 pm

      Is the Pope Catholic?

      • 48. nightshayde  |  May 6, 2011 at 12:48 pm

        (and anti-gay)

    • 49. Maggie4NoH8  |  May 6, 2011 at 1:41 pm

      Is water “wet”?

    • 50. Rhie  |  May 6, 2011 at 3:53 pm

      And racist and anti-woman and anti-anyone who doesn’t think like she does. Basically, the pathology of the Far Right all wrapped up in one really detestable person.

    • 51. BK  |  May 6, 2011 at 11:09 pm

      Is she a Doctor? Oh, wait… she doesn’t have a Ph.D., does she? Hmm… I’ll have to go look that up.

      • 52. Rhie  |  May 7, 2011 at 1:24 am

        PhD in physiology. So no qualification in what she talks about. She has a counselor’s cert but that doesn’t really tel me much. I tend not trust anyone who has anything less than a therapist license and a PhD in a relevant psychological discipline.

        She’s also incredibly damaged, but that’s obvious based on her books and career trajectory. Interesting that the counselor couldn’t identify and overcome her own pathology, especially consider how textbook it is.


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