My friend Lavi Soloway tells Metro Weekly about four cases he's handling where the BIA has remanded to USCIS to start reviewing the broader issues in the cases including whether the marriage is legal and whether it is bona fide. If they were simply applying the Defense of Marriage Act, they would deny without getting to those issues. But in light of the strong possibility DOMA will be declared unconstitutional, the BIA is being a little more bold.
Talking with Lavi Soloway, who founded Stop the Deportations to address this issue and has litigated several of the involved cases, he tells Metro Weekly, "They are unusual remands. They are an effort by the Board of Immigration Appeals to have the immigration service answer additional questions which, strictly speaking, should not be necessary since the denials were based solely on the fact that the couples were of the same sex and therefore barred by Section 3 of DOMA.
"The BIA is essentially forcing the immigration service to undertake full adjudication and to produce a complete fact-finding for each couple to determine the bona fides of the marriage, rather than simply deny them perfunctorily because they're gay or lesbian couples," he continued. "Once U.S. [Citizenship and Immigration Services, which is within the Department of Homeland Security] has done all that fact-finding, they're essentially setting the stage for being able to approve the petitions in a post-DOMA universe. They're providing everything that one would need to know to approve those petitions if the Defense of Marriage Act did not exist ... and that's not typically the role of the Board of Immigration Appeals."
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.