Attorney General Eric Holder sent a signal earlier this week, opening the possibility that the Justice Department might view marriages involving gay migrants as comparable to traditional (i.e., one man-one woman) marriages.
The signal came when he – and this is rare – overruled a decision of the Board of Immigration Appeals (BIA); it had decided that a gay illegal alien could be deported despite the fact that he was in a civil union with a U.S. citizen. Had the alien in question been in a traditional marriage the deportation, presumably, would not have happened.
The BIA is an arm of the Justice Department, and rules on appeals from the immigration courts, and does so in the name of the Attorney General. Should the AG disagree with a BIA decision he has a rarely-used right to overrule that body.
Holder told the BIA to reconsider what it had done in the light of the fact that the administration was no longer supporting in court the Defense of Marriage Act (DOMA), a pro-traditional marriage law, signed by President Clinton in 1996, whose constitutionality is being questioned in the courts. The issue regarding the gay couple is: who should be considered a spouse under the Immigration and Nationality Act (INA).
I will deal with the exact legal situation, in this case and one other, in a moment, but first there will be, predictably, three reactions to the Holder decision:
1. The opponents of gay marriage, paying little attention to the immigration policy aspects of the decision, will be appalled.
2. On the other hand the supporters of gay rights, again ignoring the immigration implications, will be overjoyed.
3. The Open Borders types will be quietly pleased, because they believe that all immigration is a good thing.
I would like to suggest a fourth point of view: supporting marriage rights (such as non-deportation of married aliens) of gays will have only the slightest immediate impact on the burgeoning population of America and none on its long-term size – because gay couples do not reproduce.
As one who is not bothered by gay marriages, I see them, in the long-term immigration context, as considerably less worrisome than traditional migrant marriages which produce, as the census tells us, more births per family than marriages among residents. I worry about the rapid rate of population growth in a nation that is having huge difficulties dealing with the short- and long-term needs of its current population, without any consideration of the million or more aliens that we add to our population each and every year.
Mine is, I predict, a lonely point of view.
The legal situation, in the two somewhat similar cases, is as follows. Holder ruled Thursday, May 5, on the case of an Irishman, Paul Wilson Dorman, that the BIA should reconsider its rejection of a petition for permanent resident alien status, on the grounds that the appellate body should see whether or not Dorman might qualify for a green card by virtue of his civil union to a U.S. citizen. This was reported in Saturday's New York Times.
The next day, a Newark (N.J.) immigration judge suspended the deportation of a Venezuelan salsa dancer, Henry Velandia, who had married a U.S. citizen in Connecticut, where same-sex marriages are legal. Velandia, now in illegal status, had sought a labor certification as a salsa dancer, but was rejected. The Newark IJ said he was suspending action in the case, until December at the earliest, because of Holder's ruling.
Dorman, who has a civil union under New Jersey law, is in a slightly different legal situation than Velandia, who has a marriage (to a Princeton graduate student).
As the Times article did not note, both aliens were visa-abusers with long, presumably illegal stays in the U.S. Dorman had been here for 15 years, and Velandia nine years before the two temporary decisions were made in their favor, a total of 24 years.
So, yet again the glacial speed of the immigration enforcement process was on display.