ZELENIAK
26 I. & N. Dec. 158
| BIA | 2013Background
- U.S. citizen petitioner filed Form I-130 on behalf of beneficiary (male spouse) on March 10, 2010; the petition was denied and appealed to the BIA.
- BIA remanded to the National Benefits Center Director (Apr. 18, 2012) to determine (1) whether the marriage is valid under Vermont law and (2) whether the marriage qualifies under the Immigration and Nationality Act (INA) absent DOMA §3.
- On remand the Director found the Vermont marriage valid but refused to address whether the spouse qualifies under the INA because DOMA §3 defined "marriage" as between one man and one woman.
- While the appeal was pending, the U.S. Supreme Court held in United States v. Windsor that DOMA §3 is unconstitutional and cannot bar federal recognition of state-law same-sex marriages.
- The BIA applied Windsor, held DOMA §3 no longer bars federal recognition of a state-valid same-sex marriage, sustained the appeal, and remanded for a determination whether the marriage is bona fide for immigration purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the marriage is valid under Vermont law | Marriage valid where celebrated (Vermont) | N/A (Director previously found valid) | Director found marriage valid; BIA accepted that finding |
| Whether DOMA §3 bars recognition of same‑sex marriages for immigration | DOMA §3 should not prevent recognition if state law validates the marriage | DOMA §3 defined marriage federally as opposite‑sex, so it barred recognition | Windsor invalidated DOMA §3; BIA: §3 no longer an impediment |
| Whether, absent DOMA §3, the beneficiary qualifies as a "spouse" under the INA | State‑valid same‑sex marriage should make beneficiary a spouse under INA | Previously relied on DOMA §3 to deny spousal status | With DOMA §3 gone, beneficiary may qualify as spouse under INA; question remanded to Director |
| Whether the marriage is bona fide for immigration purposes | Petitioner can prove bona fides; merits to be decided | DHS did not adjudicate bona fides on remand | BIA remanded for Director to determine bona fides and enter new decision |
Key Cases Cited
- United States v. Windsor, 133 S. Ct. 2675 (2013) (DOMA §3 unconstitutional; federal nonrecognition of state‑law same‑sex marriages violates due process and equal protection)