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Immigration lawyers try to discern meaning of AG Holder’s action in deportation case

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Got an update from Kerry Eleveld on the unfolding story about Attorney General Holder's decision to vacate a deportation order of the non-citizen spouse in a binational couple. Kerry talked to Crystal Williams, the Executive Director of the American Immigration Lawyers Association (AILA) and got more intel from Lavi Soloway. This is really fascinating:

I just talked to Crystal Williams of the American Immigration Law Association (AILA) and her take was that this decision from Holder could have two implications, but she stressed, that this was her read and that the language of the decision is “extremely curious.”

First, this decision can immediately be used in immigration court as a possible argument for why a deportation proceeding should be stayed. Williams said Holder designated this as an “interim decision,” which means that it immediately has precedent in immigration courts.

“This was designated as an interim decision, which is considered to be precedent,” Williams says, adding that both the Board of Immigration Appeals and the Attorney General have the power to issue interim decisions, but it’s not common practice. “Thousands of these decisions are issued every year that are not precedent.”

Now, again, this is simply her read and she says her office has been “buzzing about it all day” and trying to figure out what it means.

Second, AG Holder appears to be asking the Board of Immigration Appeals whether the facts of this case might present a good argument for why DOMA is unconstitutional in the context of immigration court.

Here’s what she said more technically:

“What it means is that the Attorney General has asked the Board of Immigration Appeals to look at the facts of this case as if DOMA were not a factor and decide whether a civil union could qualify someone as a sponsor [for their partner/spouse] under New Jersey and under immigration law,” says Williams.

In other words, if you forget about DOMA for a second, is it possible that a civil union or a domestic partnership could meet the criteria for allowing someone to be a “qualified family member” who could then sponsor their partner or spouse for a green card.

“The wording is very carefully selected,” says Williams, “but I read it to say, maybe we don’t know yet what DOMA means here but let’s look at this if DOMA were not a factor.”

Williams said it appears as though the Attorney General is testing the waters here.

“He’s not telling the board to opine on the constitutionality of DOMA,” she explains, but he seems to be saying, “tell me whether this is a good case for me to consider the constitutionality of DOMA under – is DOMA constitutional in this particular setting [of immigration court]?

Williams concludes: “It sounds to me like they are trying to decide whether to go out on a limb but they want to know before they go out on that limb whether this is a good case to do it on.”

Also, I just talked to Lavi Soloway, the lawyer for Josh Vandiver and his husband Henry Velandia of Venezuela, who faces deportation tomorrow. Here’s what Soloway will argue in courts tomorrow in his own words:

“We’re going to argue to the judge that because the Attorney General has vacated the Board of Immigration Appeals’ decision and has directed the board to remand the case specifically with a finding of whether a same-sex partner could be considered a spouse under the Immigration and Nationality Act, this is now a very fluid situation and it’s appropriate to adjourn the proceedings and then wait for a determination by the Board of Immigration Appeals on this question.”

Money quote from Soloway on the implications of Holder’s move:

“The Attorney General’s decision to vacate and remand this case opens the door to a broader understanding of what other remedies might be possible for couples like Josh and Henry.”

And here’s the outcome Soloway hopes for during Friday’s proceeding:

“Victory tomorrow is stopping the deportation proceeding from moving forward, so that Henry does not get ordered deported.”

Proceeding time, 1:00 pm, EST.
Really fascinating. We could know more tomorrow at Henry's hearing.

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