The Washington Post

Don’t penalize undocumented gay immigrants in civil unions with U.S. citizens

PAUL WILSON DORMAN, a citizen of the United Kingdom, came to the United States on a visitor’s visa in 1996 and never left. He met an American man who became his partner of 15 years. They have jointly purchased property and made out wills with the other as beneficiary. In 2009 they entered into a civil union in New Jersey.

Their lives were upended when Mr. Dorman was targeted for deportation after a chance encounter with an immigration agent at an airport. Mr. Dorman, 52, does not dispute that he has been in the country illegally but argues that he should be allowed to stay because of his relationship with his partner.

The law allows foreign nationals to fend off deportation by proving they have been in the country continuously for at least 10 years; substantiating a relationship with a “qualifying relative”; and showing that deportation would inflict an “extraordinary and extremely unusual hardship.” Two immigration courts concluded that the Defense of Marriage Act (DOMA) precludes recognition of his same-sex partner as a spouse.

DOMA has been an impediment to the rights of gay men and lesbians since its inception in 1996. It withholds from same-sex couples the legal protections, obligations and privileges enjoyed by their heterosexual counterparts. Repeal appears out of reach, but Attorney General Eric H. Holder Jr. announced in February that the Justice Department would no longer defend DOMA in court, after concluding that it is unconstitutional.

The attorney general has vacated the court decision and asked the Board of Immigration Appeals whether Mr. Dorman’s civil union makes him a “spouse” under New Jersey law and whether, absent DOMA, he would be considered a “spouse” under immigration law. Mr. Holder should erase any confusion by declaring a moratorium on removal of foreign nationals in state-recognized same-sex unions until federal courts determine DOMA’s constitutionality. He should ensure that the government is not focusing on breaking up otherwise law-abiding families.

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